Garth Barnett Interior Design Pty Ltd v Ellis - [2009] NSWCA 193

New South Wales

Court of Appeal

CITATION: Garth Barnett Interior Design Pty Ltd v Ellis [2009] NSWCA 193

HEARING DATE(S): 29 June 2009

JUDGMENT OF: Giles JA at [1], [19]-[22], [24], [26]; McColl JA at [23]; Young JA at [2]-[18]

EX TEMPORE JUDGMENT DATE: 29 June 2009

DECISION: Leave to appeal refused with costs.

CATCHWORDS: PROCEDURE - discovery of documents from prospective defendant- preliminary discovery ordered on basis that although the identity of the defendant and the causes of action were clear, there was insufficient information available to the respondents to decide whether or not it was commercially viable to commence proceedings against the applicant- in principle this is correct.

LEGISLATION CITED: Civil Procedure Act 2005, s 56
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005, r.5.3(1)

CASES CITED: Morton v Nylex Pty Ltd [2007] NSWSC 562

PARTIES: Garth Barnett Interior Design Pty Ltd (Applicant)
Stephen Ellis (First Repondent)
Angie Ellis (Second Respondent)

FILE NUMBER(S): CA 40050/09

COUNSEL: M R Elliott (Applicant)
S J Philips (Respondents)

SOLICITORS: Slade Manwaring (Applicant)
McLachlan Thorpe Partners (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 4745/08

LOWER COURT JUDICIAL OFFICER: Quirk DCJ

LOWER COURT DATE OF DECISION: 28 November 2008

CA 40050/09

GILES JA
McCOLL JA
YOUNG JA
Monday 29 June 2009

GARTH BARNETT INTERIOR DESIGN PTY LTD v ELLIS

Judgment

1 GILES JA: I will ask Young JA to give the first judgment.

2 YOUNG JA: This is an application for leave to appeal against a decision of her Honour Judge Quirk in the District Court granting the present respondents preliminary discovery. The application is being considered by way of concurrent hearing, the court considering both whether the case is a proper one in which to grant leave to appeal as well matters that go to the appeal should leave be granted.

3 The basal background facts are that the respondents retained the applicant by contract as an interior designer. The respondents say in general that the applicant grossly overcharged for its services, it breached its contract, and there is a hint of a claim for deceptive and misleading conduct under the Trade Practices Act 1974 (Cth).

4 The respondents say that they have made inquiries of firms who supplied materials to the applicant for use on the respondents’ job and those inquiries reveal some grossly-inflated mark-ups and other significant overcharging, however, the respondents say that they are unaware as to the extent of the overcharging and they have not got all the documents that they need to show the extent.

5 The respondents say they are practical people and do not wish to embark on litigation if the commercial return from what will probably be substantial fees is only small. Thus, although the respondents are aware of the identity of the person they wish to sue and they are aware of the causes of action, they say that, despite the inquiries they have already made, they are unable to obtain sufficient information to decide whether or not…

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: [2009] NSWCA 193
Decision Date: 29 June 2009

CaseChat Overview and Summary

Garth Barnett Interior Design Pty Ltd (the applicant) sought leave to appeal from an order made by a judge of the Supreme Court of New South Wales, which had granted preliminary discovery of documents from the applicant to the respondents. The dispute concerned the respondents' desire to obtain documents from the applicant to assess the commercial viability of commencing proceedings against the applicant, even though the identity of the prospective defendant and the potential causes of action were already known.

The primary legal issue before the Court of Appeal was whether the Supreme Court had erred in principle by ordering preliminary discovery in circumstances where the respondents possessed sufficient information to identify a prospective defendant and the nature of the claims, but lacked sufficient information to determine the commercial viability of pursuing those claims.

The Court of Appeal, comprising Young JA, Giles JA, and McColl JA, held that the order for preliminary discovery was correct in principle. The court reasoned that the purpose of preliminary discovery is not limited to identifying a prospective defendant or the causes of action, but can extend to enabling a party to gather sufficient information to assess whether it is commercially viable to commence proceedings. The court affirmed that the existing rules of court permit such discovery, provided the necessary preconditions are met, which included demonstrating a sufficient likelihood that the applicant had engaged in conduct that gave rise to a cause of action and that the documents sought were necessary to determine the commercial viability of litigation.

Leave to appeal was refused, and the applicant was ordered to pay the costs of the respondents.

Orders

Orders of the court

Leave to appeal refused with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Garth Barnett Interior Design Pty Ltd v Ellis [2009] NSWCA 193
HEARING DATE(S):	29 June 2009
JUDGMENT OF:	Giles JA at [1], [19]-[22], [24], [26]; McColl JA at [23]; Young JA at [2]-[18]
EX TEMPORE JUDGMENT DATE:	29 June 2009
DECISION:	Leave to appeal refused with costs.
CATCHWORDS:	PROCEDURE - discovery of documents from prospective defendant- preliminary discovery ordered on basis that although the identity of the defendant and the causes of action were clear, there was insufficient information available to the respondents to decide whether or not it was commercially viable to commence proceedings against the applicant- in principle this is correct.
LEGISLATION CITED:	Civil Procedure Act 2005, s 56 Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005, r.5.3(1)
CASES CITED:	Morton v Nylex Pty Ltd [2007] NSWSC 562
PARTIES:	Garth Barnett Interior Design Pty Ltd (Applicant) Stephen Ellis (First Repondent) Angie Ellis (Second Respondent)
FILE NUMBER(S):	CA 40050/09
COUNSEL:	M R Elliott (Applicant) S J Philips (Respondents)
SOLICITORS:	Slade Manwaring (Applicant) McLachlan Thorpe Partners (Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	4745/08
LOWER COURT JUDICIAL OFFICER:	Quirk DCJ
LOWER COURT DATE OF DECISION:	28 November 2008