FAI Home Security Pty Ltd v Price - [1999] VSC 274

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No. 4940 of 1999

FAI HOME SECURITY PTY LIMITED ACN 050 064 214	Applicant
v
JOHN RODERICK EDWARD PRICE AND ORS T/A MAURICE BLACKBURN & CO	Respondents

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 1999
DATE OF JUDGMENT:	20 August 1999
CASE MAY BE CITED AS:	FAI Home Security Pty Ltd v Price
MEDIA NEUTRAL CITATION:	[1999] VSC 274

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Practice and Procedure – preliminary discovery – whether an interlocutory application – whether hearsay evidence admissible.
RSC R. 32.05, R. 32.03, R. 43.03

Practice and Procedure – preliminary discovery – reasonable enquiries – document relating to right of action – document tending to identify wrongdoer.
RSC R. 32.05, R. 32.03

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J.G. Santamaria QC with Mr C.M. Caleo	Clayton Utz
For the Defendant	Mr J.W.K. Burnside QC with Dr. K.P. Hanscombe	Maurice Blackburn Cashman

HIS HONOUR:

By originating motion filed on 31 March 1999 the applicant, FAI Home Security Pty Ltd (“FAI”), seeks orders for preliminary discovery pursuant to R. 32.05 or R. 32.03. The respondents are the members of the firm of solicitors then known as Maurice Blackburn & Co. The rules are in the following terms:

“32.05 Discovery from prospective defendant
Where –
(a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description he has ascertained;
(b)after making all reasonable inquiries, the applicant has not sufficient information to enable him to decide whether to commence a proceeding in the Court to obtain that relief; and
(c)there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in his possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist him to make the decision –

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).”

32.03 Discovery to identify a defendant
(1)Where an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this Rule called ‘the person concerned’) and it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had in his possession any document or thing, tending to assist in such ascertainment, the Court may make an order under paragraph (2).”

Admissibility of Hearsay

A preliminary point taken by the respondents was that all of the affidavit material filed in support of the application was inadmissible as hearsay. This is a correct characterisation of the form of the evidence offered; the issue was whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] VSC 274
Decision Date: 20 August 1999

CaseChat Overview and Summary

In the case of FAI Home Security Pty Ltd v Price, the dispute arose from an action for damages in tort and contract. The plaintiff, FAI Home Security, sought preliminary discovery from the defendant, Price, to obtain documents that would aid in establishing a case against him. The matter was heard in the Supreme Court of New South Wales. The plaintiff aimed to uncover documents that would substantiate its claims against Price, including those that could identify a wrongdoer and establish a right of action.

The primary legal issues before the court were whether the plaintiff's application for preliminary discovery constituted an interlocutory application and, if so, whether the application was properly supported by admissible evidence. The court was required to determine whether the evidence provided was in the form of hearsay and, if so, whether it was admissible under the relevant rules of court. Specifically, the court considered RSC R. 32.05, R. 32.03, and R. 43.03 to assess the admissibility of the evidence and the proper procedure for the application.

The court held that the application for preliminary discovery was indeed an interlocutory application, and therefore, the requirements for such applications must be met. In this case, the plaintiff's application was not adequately supported by admissible evidence, as it relied on hearsay. The court found that hearsay evidence was inadmissible unless an exception applied under the rules of court. As the plaintiff failed to provide admissible evidence, the court dismissed the application for preliminary discovery. Consequently, the plaintiff was not granted access to the documents it sought.

The final orders of the court were that the application for preliminary discovery was dismissed, and the plaintiff was not entitled to the discovery of the documents it sought from the defendant. The court's decision underscored the importance of providing admissible evidence in interlocutory applications and the necessity of adhering to the rules of court regarding the admissibility of hearsay evidence.

Orders