District Court
New South Wales
Medium Neutral Citation: Jay & Ors v Petrikas & Ors (No.2) [2021] NSWDC 512 Hearing dates: 23 September 2021 Date of orders: 23 September 2021 Decision date: 24 September 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Order:
(1) Dismiss the plaintiffs’ applications for further and better discovery and alternative order for discovery from a non-party (RFS).
(2) The plaintiffs are to pay the defendants’ costs such costs to include the costs of 17 and 24 June and of today.
(3) Plaintiffs’ interrogatories in 21day.
(4) Plaintiffs are to answer the defendants’ interrogatories in 21 days.
(5) The defendants are to answer the plaintiffs’ interrogatories in 21 days after the receipt.
(6) Matter stood over to the Defamation List for directions on Thursday 28 October 2021 at 9am, on which date, if there is no objection to interrogatories, the matter will be allocated a hearing date as a 5-10 day matter.
Catchwords: TORT – defamation – application for further and better discovery and non-party discovery – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56-60
UCPR rr 5.4, 21.2 and 42.1
Cases Cited: Ace Hire Aust Pty Ltd v ADI Ltd 2006 NSWSC 969
Ange v Fairfax Media Publications Pty Ltd [2012] NSWSC 1200
Construction, Forestry, Mining and Energy Union v BHP Coal (No 2) [2017] FCA 1539
Djuricanin v Foreign Language Publications Pty Ltd (Supreme Court of New South Wales, Levine J, 12 May 1995)
El-mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816
Fruehauf Finance Corp Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359
Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 372
Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788
Kaji Australia Pty Ltd v Glover (No. 2) [2018] NSWSC 414
CharmynePalavi v Queensland Newspapers Pty Ltd & Anor [2011] NSWSC 274
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 15) [2012] FCA 781
Tamberlin J noted in Yarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802
Texts Cited: Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Carswell, 2nd ed.)
“Discovery in Federal Courts” (ALRC CP 2, 15 November 2010)
Category: Procedural rulings Parties: First Plaintiff: Graeme Jay
Second Plaintiff: John Peters
First Defendant: Chris Petrikas
Second Defendant: David Ryan
Third Defendant: Ian Wedge
Fourth Defendant: Karen HodgesRepresentation: Counsel:
Solicitors:
Plaintiffs: Mr T Crispin
Defendants: Mr B Dean
Plaintiffs: A R Conolly & Company
Defendants: Crown Solicitor’s Office
File Number(s): 2019/00072815
Judgment
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The plaintiffs, by notice of motion filed on 24 June 2021, seek orders for further and better discovery from the defendants and/or an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 5.4 for non-party discovery against the Rural Fire Service of NSW.
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These are my reasons for refusing the plaintiffs’ application.
The evidence
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The plaintiffs relied…
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- Case
- [2021] NSWDC 512
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the plaintiffs' applications for further and better discovery and non-party discovery should be granted and, if not, whether the plaintiffs should be required to pay the defendants' costs. The court needed to balance the need for adequate preparation and discovery against the defendants' right to a fair trial and the potential for unnecessary expense and delay.
The court found that there was no issue of principle that would warrant granting the plaintiffs' applications for further and better discovery and non-party discovery. The plaintiffs had not demonstrated that the information they sought was necessary for the fair conduct of the proceedings or that it could not be obtained through other means. The court also found that the plaintiffs should pay the defendants' costs due to the lack of merit in the applications. The court ordered the parties to exchange interrogatories and set a date for further directions.
The court dismissed the plaintiffs' applications for further and better discovery and non-party discovery. The plaintiffs were ordered to pay the defendants' costs, including the costs of the hearings on 17 and 24 June 2021 and the hearing on the day of the decision. The parties were ordered to exchange interrogatories within 21 days, with the plaintiffs answering the defendants' interrogatories and the defendants answering the plaintiffs' interrogatories within 21 days of receipt. The matter was stood over to the Defamation List for directions on 28 October 2021 at 9am, with the possibility of allocation of a hearing date as a 5-10 day matter if there were no objections to the interrogatories.
Orders
Orders of the court
Order:
(1) Dismiss the plaintiffs’ applications for further and better discovery and alternative order for discovery from a non-party (RFS).
(2) The plaintiffs are to pay the defendants’ costs such costs to include the costs of 17 and 24 June and of today.
(3) Plaintiffs’ interrogatories in 21day.
(4) Plaintiffs are to answer the defendants’ interrogatories in 21 days.
(5) The defendants are to answer the plaintiffs’ interrogatories in 21 days after the receipt.
(6) Matter stood over to the Defamation List for directions on Thursday 28 October 2021 at 9am, on which date, if there is no objection to interrogatories, the matter will be allocated a hearing date as a 5-10 day matter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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