Green v Graincorp Oilseeds Pty Ltd - [2024] VSC 273

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
GROUP PROCEEDINGS

S ECI 2021 04524

BETWEEN:

KEVIN CARLING GREEN	Plaintiff
v
GRAINCORP OILSEEDS PTY LTD (ACN 006 772 578)	Defendant

---

JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2024
DATE OF RULING:	30 May 2024
CASE MAY BE CITED AS:	Green v Graincorp Oilseeds Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 273

---

PRACTICE AND PROCEDURE — Discovery — Discovery by categories— Parties unable to agree categories —Whether formulation of categories means they are unduly wide or oppressive —Relevance of documents to claims for private nuisance seeking aggravated and exemplary damages, and for breach of s 25 of the Environmental Protection Act 2017 (Vic) —Whether general discovery or discovery by category appropriate — General discovery ordered.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr M Sharpe	DST Legal
For the Defendant	Mr R Craig KC & Mr R Chaile	Ashurst Australia

TABLE OF CONTENTS

Background to the Proceeding......................................................................................................... 3

The Court’s Powers Regarding Discovery.................................................................................... 4

Plaintiff’s Application for ‘General Discovery’........................................................................... 5

The ‘Fallback’ Categories sought by the Plaintiff....................................................................... 8

Category 2(a)................................................................................................................................ 10
Category 2(b)............................................................................................................................... 12
Category 2(c)................................................................................................................................ 14
Category 2(d)............................................................................................................................... 16
Category 2(e)................................................................................................................................ 17
Category 2(f)................................................................................................................................ 18
Category 2(g)............................................................................................................................... 19
Category 2(h)............................................................................................................................... 20
Category 2(i)................................................................................................................................. 22

The Category Sought from the Plaintiff, to which Objection is Made................................. 22

Disposition........................................................................................................................................ 24

HER HONOUR:

This matter comes before me as a discovery dispute that has arisen following the making of orders for the exchange of categories of discovery in this proceeding by Keogh J on 3 November 2023.

Specifically, by the 3 November orders, the parties were required to exchange their proposals for any categories of discovery, to respond to the respective proposals they received, and to confer and use their best endeavours to agree on proposed discovery orders. To the extent there was agreement, discovery of an initial tranche was to be made by 16 February 2024, and if there was a dispute, it was to be referred to another judicial officer for determination.

The parties exchanged letters in November in which they each set out their proposed categories for discovery.

By his solicitor’s letter dated 26 November 2023, the plaintiff requested production of all documents in the defendant’s ‘possession’ and ‘any document within the meaning of r 29.01.1(3) of the [Supreme Court (General Civil Procedure) Rules 2015].’[1] The plaintiff conceded in the hearing that this was in fact a request for general discovery in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).[2] The plaintiff then identified nine categories of documents that it expected the defendant to produce in compliance with r 29.01.1(3). Those nine categories as set out in paragraph 2 of the letter were:
[1]Exhibit JHC-2 to the affidavit of James Clarke sworn 5 March 2024, 62–63.
[2]See transcript of proceeding (12 March 2024), 8.31-9.05.

a. Any document which records, refers to or relates to GrainCorp’s operating licences since 1 January 2017;
b. Any…

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.

Keep reading for free

Create a free CaseChat account to read Green v Graincorp Oilseeds Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] VSC 273
Decision Date: 30 May 2024

CaseChat Overview and Summary

Green and Graincorp Oilseeds Pty Ltd appeared before the court in a dispute concerning the discovery of documents, which was a significant component of their broader litigation. Green, the plaintiff, alleged private nuisance and breaches of the Environmental Protection Act 2017 (Vic), seeking aggravated and exemplary damages. Graincorp, the defendant, contested the extent and scope of the discovery process, particularly regarding the categories of documents that Green sought. The parties could not agree on the appropriate categories for discovery, leading to an application for the court to determine the scope of the discovery process.

The central legal issue before the court was whether the categories proposed by Green for discovery were unduly wide or oppressive. The court had to decide whether the formulation of the categories resulted in a search for documents that were overly broad or potentially burdensome to Graincorp. Additionally, the relevance of the documents to the specific claims made by Green, including the claims for aggravated and exemplary damages and breaches of the Environmental Protection Act, was a key consideration. The court also needed to determine whether a general discovery or discovery by categories was more appropriate given the nature of the claims and the potential volume of relevant documents.

In resolving the dispute, the court found that the categories proposed by Green were indeed too wide and could be oppressive to Graincorp. The court considered that the relevance of the documents to the claims, particularly in the context of seeking aggravated and exemplary damages and breaches of the Environmental Protection Act, necessitated a broader search than what the proposed categories allowed. Consequently, the court determined that a general discovery was more appropriate to ensure that all relevant documents could be identified and assessed for admissibility and relevance. The court's reasoning was grounded in the need for a fair and efficient discovery process that would not unduly prejudice either party while allowing the court to adequately address the claims made.

The final order of the court was to grant Green's application for general discovery. This decision allowed Green to seek all documents relevant to the claims, subject to Graincorp's right to object to the production of any specific documents on the grounds of privilege or irrelevance. The court's order aimed to balance the interests of both parties in ensuring that the litigation process could proceed effectively and fairly.

Orders