Jovista Pty Ltd v FAI General Insurance Co Ltd

The case of Jovista Pty Ltd v FAI General Insurance Co Ltd [1999] WASC 44 involved an application by Jovista Pty Ltd for non-party discovery against WMC Resources Ltd. The plaintiff, Jovista Pty Ltd, sought to obtain documents from WMC Resources Ltd, a non-party, relating to a dispute between Jovista Pty Ltd and its insurer, FAI General Insurance Co Ltd. The plaintiff claimed that WMC Resources Ltd had documents that would be relevant to the proceedings, but the summons did not specify the exact documents sought.

The legal issues the court had to decide were whether there were reasonable grounds for believing that WMC Resources Ltd had documents relevant to the case and, if so, what form the discovery order should take. The court also had to consider the costs implications of the application, particularly whether the plaintiff should bear the costs of the application and of providing the discovery.

The court held that the plaintiff had reasonable grounds to believe that WMC Resources Ltd had documents relevant to the proceedings. However, the summons was too general and did not specify with sufficient precision what documents were sought. The court ordered that the plaintiff provide an amended summons identifying the class of documents sought. The court also held that, as a general rule, the costs of the application and of providing the discovery should be borne by the plaintiff, unless the non-party's reluctance to provide discovery was not wholly spurious. The court noted that there was no suggestion that the plaintiff would issue proceedings against WMC Resources Ltd, and thus, there was no basis for the plaintiff to seek to enforce any contractual obligations under the Tank Supply Contract.

The court ordered that the plaintiff pay the costs of the non-party in relation to the application, the provision of legal advice, and the costs associated with giving discovery. The court also ordered that security for costs be provided as a precondition to any order for discovery.