District Court
New South Wales
Medium Neutral Citation: KELLY v BURSTON [2021] NSWDC 793 Hearing dates: 15 April 2021 Date of orders: 15 April 2021 Decision date: 15 April 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Orders:
(1) The defendant is to provide the following in answer to the plaintiff’s request for further and better discovery:
a) Correspondence for which claimed of privilege have been made where the correspondence is not from a solicitor is to be provided in 7 days.
(2) The plaintiff is to provide the following in answer to the defendant’s request for further and better discovery:
(a) The Fair Work Commission documents arising from the claim plaintiff submitted on 17 January 2018, including the deed of settlement.
(b) Copy of the plaintiff’s PhD qualification, undergraduate degree and PhD thesis.
(3) The parties are to provide copies to each other (but not to the Court) of these documents 14 days from today.
(4) Matter stood over to the Defamation List for further directions Thursday 13 May 2021 at 9am.
Catchwords: PRACTICE AND PROCEDURE – further and better discovery
Legislation Cited: UCPR r 21.1(2) & 21.2
Cases Cited: Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200
Duraisamy v Sydney Trains [2019] NSWCA 269
Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 840
Fruehauf Finance Corporation Pty Ltd v Zurich Australia Insurance Ltd (1990) 20 NSWLR 359
Gerard Michael McGuirk v The University of New South Wales [2010] NSWCA 104
Texts Cited: District Court Defamation List Practice Note 6
Category: Procedural rulings Parties: Plaintiff: Peter James Kelly
Defendant: Brian BurstonRepresentation: Plaintiff: self-represented
Defendant: self-represented
File Number(s): 2020/00029704 Publication restriction: Nil
Judgment
The applications before the court
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This is an application by each of the plaintiff and defendant in these proceedings for further and better discovery of documentation which each party asserts is relevant to the categories of discovery in these proceedings.
The matter complained of and the pleadings
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The plaintiff by statement of claim as amended on 22 April 2020 brings proceedings for defamation for statements made by the defendant in the course of a television interview of the defendant by Graham Richardson on Sky News on 29 January 2019. In the course of that interview, he was asked about the circumstances in which he had unfairly dismissed staff and, specifically, whether he had sacked up to 11 people in the three years just past. The defendant replied:
"No, well - there's five perhaps that I dismissed for breach of trust; there were four that were on probation or casual and I let them go after I completed the project I had set for them; the others were - er - um resignations...so whoever said that, that's a fallacy and as you state, I certainly must have some enemies somewhere".
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It can be seen from the above that the plaintiff was not named. This would require a…
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- Case
- [2021] NSWDC 793
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on determining the scope of discovery in the context of the parties' requests. The plaintiff sought certain correspondence, while the defendant requested specific documents related to a settlement deed and academic qualifications of the plaintiff. The court had to evaluate whether the requests were appropriate, relevant, and necessary for the fair determination of the case.
In reaching its decision, the court analysed the relevance and necessity of the documents requested. The court found that the correspondence from non-solicitors, which the plaintiff sought, was necessary for a full understanding of the case and ordered the defendant to provide these documents within seven days. Regarding the defendant's requests, the court considered the documents related to the settlement deed and academic qualifications to be relevant and necessary and ordered the plaintiff to provide these documents. The court also mandated that the parties exchange copies of these documents among themselves within 14 days. The case was then stood over to the Defamation List for further directions.
In summary, the court ordered the defendant to provide certain correspondence within seven days, the plaintiff to furnish specific documents within 14 days, and directed that both parties exchange these documents among themselves. The matter was further stood over for additional directions.
Orders
Orders of the court
Orders:
(1) The defendant is to provide the following in answer to the plaintiff’s request for further and better discovery:
a) Correspondence for which claimed of privilege have been made where the correspondence is not from a solicitor is to be provided in 7 days.
(2) The plaintiff is to provide the following in answer to the defendant’s request for further and better discovery:
(a) The Fair Work Commission documents arising from the claim plaintiff submitted on 17 January 2018, including the deed of settlement.
(b) Copy of the plaintiff’s PhD qualification, undergraduate degree and PhD thesis.
(3) The parties are to provide copies to each other (but not to the Court) of these documents 14 days from today.
(4) Matter stood over to the Defamation List for further directions Thursday 13 May 2021 at 9am.
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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