Ellis v Left Bank Holdings Pty Ltd

In *Ellis v Left Bank Holdings Pty Ltd*, heard in the Federal Circuit Court of Australia before Judge Antoni Lucev, the applicant sought an interlocutory order for the respondent to file and serve a full statement of claim, and to provide discovery, production, and inspection of documents. The underlying dispute concerned allegations of disability discrimination, specifically the refusal of access to premises with an assistance animal, relating to the provision of goods, services, and facilities.

The court was required to determine the scope and application of specific Federal Circuit Court Rules concerning discovery and the production of documents. The key rules in question were Rule 14.02, which allows for a declaration to permit discovery, and Rule 14.10, which governs the process for requesting and providing copies or inspection of documents referred to in filed documents or affidavits. The court also considered Rule 15.28, which mandates that documents used in conjunction with an affidavit must be annexed to it.

Judge Lucev's reasoning focused on the interpretation of Rule 14.10. He adopted the observation from *Faulkner v Tidewater Marine Australia Pty Ltd (No.3)* that for a document to be considered "referred to" under Rule 14.10(1), it must at least be mentioned in the relevant affidavit; an implied existence is insufficient. Furthermore, the court held that the use of the word "must" in Rule 14.10(2) indicates a mandatory obligation to provide a copy of a requested document or to appoint a time and place for its inspection, unless a privilege is claimed or the document is not in the party's possession. The court found no basis to dispense with compliance with these rules in the present case.