Hancock & Anor v Bilinsky - [2007] NSWSC 915

CITATION: Hancock & Anor v Bilinsky [2007] NSWSC 915

HEARING DATE(S): 7 August 2007

JUDGMENT DATE :
22 August 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The respondent is to provide preliminary discovery of the disk referred to in paragraph [24] of this judgment to the applicants' solicitor within 14 days; (2) The issues of firstly, costs and secondly, whether a Court appointed expert should be appointed are reserved.

CATCHWORDS: Preliminary discovery - disk

LEGISLATION CITED: Income Tax Assessment Act 1936 (Cth) - s 16
Legal Profession Act 2004 (NSW) - s 347
Supreme Court Rules 1970 (NSW) - Part 3
Taxation Administration Act 1953 (Cth) - s 3C
Uniform Civil Procedure Rules 2005 (NSW) - r 5.3
Clerk & Lindsell on Torts, (19th ed) 2006

CASES CITED: Amaltal Corp Ltd v Maruha Corp Ltd [2007] 1 NZLR 608
C7 Pty Limited v Foxtel Management Pty Limited [2001] FCA 1864
Magill v Magill (2006) 2126 CLR 551
Papaconstuntinos v Holmes a Court [2006] NSWSC 945

PARTIES: David John Hancock - First Applicant
Susan Hancock - Second Applicant
Bohdan Bilinsky - Respondent

FILE NUMBER(S): SC 10628/2007

COUNSEL: Mr R D Marshall - Applicants
Mr J L Trew QC with Mr A Maroya - Respondent

SOLICITORS: Grasso Searles Romano, Lawyers, Brisbane - Applicants
Horowitz & Bilinsky - Respondent

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 22 AUGUST 2007
10628/2007 - DAVID JOHN HANCOCK & ANOR v

BOHDAN BILINSKY

JUDGMENT (Preliminary discovery - disk)

1 HER HONOUR: By summons filed 2 February 2007, the applicants seek discovery of a floppy disk pursuant to Rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). This new rule enables the prospective applicants to assist in whether or not proceedings should be commenced against a prospect respondent.

2 The first applicant is David John Hancock. The second applicant is Susan Hancock. The respondent is Bohdan Bilinsky. The applicants relied on the affidavits of Susan Hancock dated 2 February 2007, Mitchell Edward Bezzina dated 2 February 2007 and Alfio Michele Romano dated 2 February 2007. The respondent relied on his affidavit sworn 20 April 2007 and the affidavits of Trevor John Sutton sworn 8 March 2007, Ronald Stanley John Thirlwell sworn 26 April 2007, David John McGowan sworn 29 April 2007 and Philip John Yeo sworn 3 May 2007.

3 On 28 April 2001, Wingecarribee Shire Council (the Council) auctioned land it owned at Argyle Street, Moss Vale, being a former State Bank building (the property). Its real estate agent was Eddy Finch and their solicitor was the respondent. The applicants attended the auction and although they were the highest bidder, the property was passed in on that day. In June 2001, negotiations took place between the applicants and the Council with regard to the sale of the property. On 20 July 2001, the sale price was agreed in principle and the applicants paid deposit moneys to Mr Finch. Exchange of contracts…

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: [2007] NSWSC 915
Decision Date: 22 August 2007

CaseChat Overview and Summary

The case of Hancock and another versus Bilinsky came before the Federal Court of Australia. The dispute centred around an application for preliminary discovery of documents, specifically those relating to a disk drive. The plaintiffs sought to obtain documents they believed to be pertinent to their case, arguing that the defendant had failed to disclose them during the discovery process.

The court was tasked with determining whether the plaintiffs had established a sufficient basis for the issuance of a preliminary discovery order. This required assessing the credibility and weight of the evidence presented, including expert reports and affidavits, which suggested that the disk drive contained relevant information. The court had to consider whether the plaintiffs had shown that the documents were likely to exist and were essential to the case.

In its reasoning, the court noted the importance of the documents in question and the potential impact on the outcome of the litigation. It found that the plaintiffs had made a compelling case, demonstrating that the information on the disk drive was likely to be relevant and necessary for a fair trial. The court was persuaded by the expert evidence and the failure of the defendant to adequately explain the absence of the documents. As a result, the court granted the application for preliminary discovery, ordering the defendant to disclose the contents of the disk drive.

The final orders of the court mandated that the defendant provide the plaintiffs with access to the disk drive and any information it contained. The defendant was also required to comply with the terms of the order within a specified timeframe. This decision underscored the importance of transparency and full disclosure in litigation, affirming the court's role in ensuring that all relevant information is brought to light to facilitate a just resolution.

Orders