iSAM Securities (UK) Ltd v Press - [2024] NSWSC 1036

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036
Hearing dates: 13 August 2024
Date of orders: 19 August 2024
Decision date: 19 August 2024
Jurisdiction: Equity
Before: Richmond J
Decision:
See [82]

Catchwords:
CIVIL PROCEDURE — Preliminary discovery — To identify potential defendant — Order for examination — Reasonable inquiries — Exercise of discretion — Whether prospective proceedings are speculative — Whether categories for discovery are too broad — Orders made for discovery under Uniform Civil Procedure Rules 2005 (NSW), r 5.2
CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — Whether the plaintiffs have already decided to commence proceedings — Whether scope of discovery too broad — Orders made for discovery under Uniform Civil Procedure Rules 2005 (NSW), r 5.3

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Age Co Ltd v Liu [2013] 82 NSWLR 268
Bohemia Crystal Pty Ltd v Host Corporation Pty Ltd [2018] FCA 235
Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd [2023] FCA 66
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70
Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre (1978) 140 CLR 216
Morton v Nylex Ltd [2007] NSWSC 562
Muscat v Qin [2024] NSWSC 113
O'Connor v O'Connor [2018] NSWCA 214
Pritchard Lees Pty Ltd v Heather [2013] NSWSC 1521
Racing New South Wales v Racing Victoria (No 2) [2023] NSWSC 576
Roads & Traffic Authority (NSW) v Australian National Car Parks Pty Ltd [2007] NSWCA 114
Roads & Traffic Authority (NSW) v Care Park Pty Ltd [2012] NSWCA 35
Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 97 ALJR 388; [2023] HCA 8
Stewart v Miller [1979] 2 NSWLR 128
Yorke v Lucas (1985) 158 CLR 661

Category: Procedural rulings
Parties: iSAM Securities (UK) Limited (First Plaintiff)
iSAM Securities (HK) Limited (Second Plaintiff)
iSAM Securities (Global) Limited (Third Plaintiff)
iSAM Securities (USA) Inc (Fourth Plaintiff)
Matthew Press (First Defendant)
Forexco Australia Pty Ltd (Second Defendant)
Representation:
Counsel:
C Bova SC / Z Graus (Plaintiffs)
O Jones / C Beshara (Defendants)
Solicitors:
Corrs Chambers Westgarth (Plaintiffs)
O’Loughlin Westhoff (Defendants)

File Number(s): 2024/00263578
Publication restriction: Nil

JUDGMENT

Before the Court is an application by the plaintiffs for orders for preliminary discovery against the first defendant, Matthew Press (Mr Press), and the second defendant, Forexco Australia Pty Ltd (Forexco Australia), pursuant to rules 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or the inherent jurisdiction of the Court.
The plaintiffs seek these orders to ascertain the identity of prospective defendants against whom they are considering bringing proceedings for misleading or deceptive conduct in breach of s 18 of the Competition…

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: [2024] NSWSC 1036
Decision Date: 19 August 2024

CaseChat Overview and Summary

iSAM Securities (UK) Ltd sought an order for preliminary discovery against Press, seeking information to identify potential defendants and causes of action in a dispute over the distribution of financial products. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the plaintiff's request for preliminary discovery was justified, given the speculative nature of the potential defendants and causes of action.

The court considered whether the plaintiff's decision to commence proceedings was premature, and whether the scope of the requested discovery was too broad. The plaintiff argued that the defendants might be found within the categories of entities specified, and that the discovery was necessary to identify these potential defendants and causes of action. The court also assessed whether the plaintiff had made reasonable inquiries to narrow down the scope of the discovery request. In examining these issues, the court focused on the exercise of discretion under the Uniform Civil Procedure Rules 2005 (NSW).

The court concluded that the plaintiff had not made sufficient inquiries to justify the broad scope of the discovery request. While acknowledging the speculative nature of the potential defendants and causes of action, the court found that the plaintiff had not demonstrated a sufficient basis to warrant the requested discovery. The court ordered limited preliminary discovery, specifying the categories of documents to be disclosed. The court’s decision highlighted the need for plaintiffs to make reasonable inquiries and to tailor their discovery requests to avoid overbroad scope, ensuring that the exercise of discretion aligns with the principles of fairness and proportionality.

Orders