Falk v Finlay - [1999] NSWSC 1284

CITATION: Falk v Finlay [1999] NSWSC 1284

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 4482/96

HEARING DATE(S): 12, 13, 14, & 16 October, 4, 8, 9, 11 & 15 December 1998

JUDGMENT DATE:
24 December 1999

PARTIES :

Michael Falk (P)
Ronald Arthur Finlay, Edward Bertram Cowpe, Francis Reginald Lawson, John Gregory McCombe, Roderick Hamilton McGeoch, Allan John Macdonald, Frederick John Kehoe, Richard Kay Liebmann, Paul Richard McCann, Alexander John Munton, Geoffrey Hungerford Pike, Andrew Lee Price, Anthony John Sheehan, Peter William Damian Smith, Andrew Wentworth Stevenson, Stuart David Westgarth, Patrick Bill Williams, Jennifer Margaret Boland, Carmen Champion, Charles Macquarie Cowper, Graeme John Dennis, Michael John Ellis, Julian Maxwell Gregory, John Henry Herron, William John Koeck, Paul Harry Huges, Andrew John Lumsden, Peter Thomas Pether, Erica Jane Robinson, Stephen Price (Ds)

JUDGMENT OF: Austin J

COUNSEL : D L Williams (P)
B C Oslington QC and D Pritchard (D)

SOLICITORS: Abbott Tout (P)
Holman Webb (D)

CATCHWORDS: PRACTICE AND PROCEDURE - discovery - whether relevance limits scope of Court's orders for specific discovery - whether affidavit of discovery is conclusive - inadequacy of discovery

CASES CITED: British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] 1 KB 369
Commonwealth of Australia v Northern Land Council (1991) 103 ALR 267
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Donaldson v Harris (1993) 4 SASR 299
Ferguson v Mackaness Produce Pty Ltd [1970] 2 NSWR 66
Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359
Jones v Monte Video Gas Co (1880) 5 QBD 556
Lyell v Kennedy (No.3) (1884) 27 ChD 1
Mulley v Manifold (1959) 103 CLR 341
Telstra Corp v Australis Media Holdings Pty Ltd (Supreme Court of New South Wales, 10 February 1997, unreported)

DECISION: Application for further discovery and other orders succeeds

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 24 DECEMBER 1999

4482/96 - MICHAEL FALK V RONALD ARTHUR FINLAY & ORS

JUDGMENT

1   HIS HONOUR: This judgment relates to an application by the plaintiff by notice of motion filed on 9 December 1998. By that application the plaintiff seeks an order for production and inspection of specified documents and classes of documents, and alternative orders in the event that the documents are not produced.

2   The application seeks to test the adequacy of the defendant’s pre-trial discovery. It was made, at first orally, on the fifth day of the final hearing of the proceedings, and arose out of evidence given by one of the defendants in cross-examination. Evidence and submissions on the application were heard, but I also proceeded to hear the rest of the evidence in the proceedings. The hearing was completed, subject to my ruling on the plaintiff’s application, and to the hearing of final submissions in the proceedings.
3   Since the application has been successful, as I shall explain, a further process of discovery will be ordered, as a consequence of which the plaintiff might seek to re-open…

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] NSWSC 1284
Decision Date: 24 December 1999

CaseChat Overview and Summary

The case of Falk v Finlay involved a dispute between the parties over the scope of discovery orders made by the court. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Falk, sought further discovery from the defendant, Finlay, arguing that the initial discovery had been inadequate. Finlay contended that the scope of discovery had been correctly determined and that the plaintiff's affidavit in support of discovery was conclusive.

The central legal issue before the court was whether the relevance of documents to the matters in dispute limited the scope of the court's orders for specific discovery. Additionally, the court needed to determine whether an affidavit of discovery was conclusive, and if not, what weight should be given to it in assessing the adequacy of discovery. The court also considered whether the discovery provided by Finlay was sufficient or if it was inadequate and required further disclosure.

The court held that the relevance of documents was a factor that could limit the scope of discovery orders. However, it also found that an affidavit of discovery was not necessarily conclusive. The weight to be given to the affidavit depended on its accuracy and completeness, and if it was found to be inadequate, the court could order further discovery. In this case, the court concluded that the discovery provided by Finlay was insufficient, and ordered him to provide additional documents. The court emphasised the importance of ensuring that discovery is adequate to allow both parties to properly prepare their cases and to avoid unnecessary delays or costs.

Orders