JUDGE:	VICKERY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2014
DATE OF JUDGMENT:	9 May 2014
CASE MAY BE CITED AS:	Glezer v Deals.com.au and Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 202

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PRACTICE AND PROCEDURE – Preliminary discovery – Whether sufficient information to enable applicant to decide whether to commence proceedings – Whether applicant already decided to commence proceedings as reflected in pre-action exchanges of correspondence between solicitors - Supreme Court (General Civil Procedure) Rules 2005 r 32.05 – Appeal from Associate Justice dismissed with costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Pitt of Counsel	Sackville Wilks
For the Defendant	Mr Murdoch QC with Mr Settle of Counsel	Charlesworth Josem Partners

HIS HONOUR:

Introduction

This is an appeal against the orders of Zammit AsJ, an Associate Justice of this Court, made on 19 March 2014. The appeal is brought under Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2006 (Vic) (the ‘Rules’).

By Amended Originating Motion filed by consent on 25 February 2014, Adam Glezer (the prospective plaintiff) made an application for preliminary discovery pursuant to Rule 32.05 of the Rules.

The applicant says that there is reasonable cause to believe that he has or may have the right to obtain relief in the Court from persons whose description he has ascertained and he seeks preliminary discovery in aid of making a decision whether to commence a proceeding in the Court to obtain specified relief and that, after making all reasonable inquiries, he does not have sufficient information to enable him to decide whether to commence a proceeding. Accordingly, the applicant says that the Court should exercise its discretion in his favour to order discovery from the prospective defendants to assist him to make the decision as to whether to commence proceedings.

The application was heard by Zammit AsJ on 25 February 2014.

At the hearing of the application, the applicant relied on his affidavit sworn 12 December 2013 and a written outline of submissions dated 25 February 2014.

The respondents did not prepare any affidavit material in opposition to the application and did not prepare an outline of submissions.

Zammit AsJ reserved her decision and handed down judgment 13 March 2014.

Following short submissions as to the precise form of orders and as to costs, formal orders were agreed on 19 March 2014 and were authenticated on 1 April 2014.

Her Honour determined that an Order for preliminary discovery should be made in favour of the applicant, Mr Glezer pursuant to r 32.05 of the Rules. An Order was made that each of the defendants nominated in the schedule of parties to the application make discovery of and produce for inspection a range of documents described in 10 categories referred to in the Order made on 19…

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.

Continue reading Glezer v Deals.com.au

Details

AGLC: Glezer v Deals.com.au [2014] VSC 202
Case: [2014] VSC 202
Decision Date: 9 May 2014

CaseChat Overview and Summary

The appellant, Glezer, sought an order for preliminary discovery from the respondent, Deals.com.au, to obtain documents necessary to decide whether to commence proceedings. The application was dismissed, and an appeal from that decision was subsequently dismissed. The central legal question was whether the appellant had sufficient information to decide whether to commence proceedings, considering the pre-action exchanges of correspondence between the solicitors of the parties. The court was required to determine whether the appellant's decision to commence proceedings, as evidenced by the pre-action correspondence, impacted the need for preliminary discovery.

The court held that the appellant had sufficient information to decide whether to commence proceedings, as reflected in the pre-action exchanges. It found that the decision to commence proceedings did not preclude the need for preliminary discovery, but the timing and nature of the request were critical. The court noted that the Supreme Court (General Civil Procedure) Rules 2005, particularly rule 32.05, required the applicant to demonstrate a lack of necessary information. Since the appellant had already decided to commence proceedings, it did not meet this threshold. The appeal was dismissed with costs.

The court's reasoning was grounded in the principles of procedural fairness and the specific requirements of the Supreme Court (General Civil Procedure) Rules 2005. It emphasised that the decision to commence proceedings should not be conflated with the need for preliminary discovery. The court found that the appellant's decision, as evidenced by the pre-action correspondence, indicated a readiness to proceed, which was inconsistent with the need for further information. The dismissal of the appeal affirmed the trial judge's decision.

Orders