In the matter of Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006

Metal Storm Limited, a company under a deed of company arrangement, brought an application to the Federal Court seeking an order for discovery from another party. The applicant's claim was against a party that had been served with a subpoena to provide documents from a third party, which were relevant to the applicant's claim. The applicant argued that despite the availability of these documents, it was necessary to obtain further information through discovery to determine the damages it was owed. The respondent opposed the application on the basis that there were no exceptional circumstances that warranted an order for discovery before the service of evidence.

The court considered whether the applicant had established a prima facie case for its claim against the respondent, whether there were exceptional circumstances that justified an order for discovery before the service of evidence, and whether the applicant had fulfilled its obligations under the rules of court to obtain relevant documents from other sources. The court found that the applicant had established a prima facie case against the respondent and that there were no exceptional circumstances that justified an order for discovery before the service of evidence. The court noted that the applicant had obtained extensive relevant documents from other sources, and the court considered that the applicant's need for further information was adequately met by the existing documents.

The court held that the applicant had not demonstrated that it had fulfilled its obligations under the rules of court to obtain relevant documents from other sources. The court found that the applicant had not considered whether it could obtain the necessary information from other sources, and the court considered that the applicant's failure to do so was a significant factor in its decision. The court refused the application for discovery and ordered the applicant to pay the respondent's costs of the application. The court noted that the applicant had the right to appeal the decision, but that the applicant's failure to consider alternative sources of information had resulted in an unnecessary expense and delay.