Kimberley Securities v Byrne - [2008] NSWSC 1214

CITATION: Kimberley Securities v Byrne [2008] NSWSC 1214

HEARING DATE(S): 7 November 2008

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 7 November 2008

DECISION: See paragraph [11] of the judgment.

CATCHWORDS: DISCOVERY - power of court to make order for discovery against non-party in existing proceedings - Uniform Civil Procedure Rules, Part 5, r 5.4.

LEGISLATION CITED: Uniform Civil Procedure Rules

CASES CITED: Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASCA 123

PARTIES: Kimberley Securities Limited (Plaintiff)
Byrne Lewis Group Pty Limited (First Defendant)
Kilmory Estate Pty Limited (Second Defendant)

FILE NUMBER(S): SC 55048/08

COUNSEL: F G Kalyk (Plaintiff)
F F Salama (First Defendant)

SOLICITORS: Osborne & Associates (Plaintiff)
Marsdens (First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

7 November 2008 ex tempore (revised – 10 November 2008)

55048/08 KIMBERLEY SECURITIES v BYRNE TECHNOLOGY

JUDGMENT - re application for discovery

1 HIS HONOUR: This is an application by the plaintiff for an order that a non-party to these proceedings, Byrne Lewis Constructions Pty Ltd, give discovery of documents within categories defined in paragraph 1 of the plaintiff's notice of motion filed on 27 October 2008. The only issue is as to the Court's power to make such an order. It is common ground that if the Court does have such power then discovery within those categories ought be ordered.

2 The point arises because the plaintiff, having obtained an order for discovery against the first defendant, Byrne Lewis Group Pty Ltd, was answered by a list of documents that said, as to certain documents, that they were believed to be in the possession of Byrne Lewis Constructions. It is apparent that Byrne Lewis Group and Byrne Lewis Constructions are related companies, having the same registered office, same officers and shareholders, and same place of business.

3 The application was pressed pursuant to UCPR r 5.4. That rule appears in Part 5 of the Rules, dealing with preliminary discovery and inspection. The point that was taken on behalf of Byrne Lewis Constructions was that the operation of r 5.4 ought be governed, or more accurately limited, by the fact that it occurs in Part 5 and having regard to the title of Part 5. Thus, it was submitted, r 5.4 operates only to authorise third party discovery in the nature of preliminary discovery. Reliance was placed on r 21.2, dealing with discovery between parties. I have to confess that I do not understand the significance of r 21.2 in this context of this dispute.

4 Rule 5.4 reads as follows:

(1) The court may order that a person who is not a party to proceedings, but in respect of whom it appears to the court that the person may have or have had possession of a document that relates to any question in the proceedings, must give discovery to the applicant of all documents that are or have been in the person’s possession…

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.

Continue reading Kimberley Securities v Byrne

Details

AGLC: Kimberley Securities v Byrne [2008] NSWSC 1214
Case: [2008] NSWSC 1214
Decision Date: 7 November 2008

CaseChat Overview and Summary

The case of Kimberley Securities Pty Ltd v Byrne involves a dispute between the plaintiff, Kimberley Securities, and the defendant, Byrne. The primary issue is the plaintiff's application for an order to compel the defendant to disclose certain documents, which are believed to be in Byrne's possession but are not directly related to the proceedings. The application was made under the Uniform Civil Procedure Rules, Part 5, rule 5.4, which grants the court discretion to order discovery against a non-party in existing proceedings. The Supreme Court of Queensland was tasked with determining whether such an order should be made in this instance.

The court considered the principles and precedents governing the power to order discovery against non-parties. It noted that the power is not absolute and must be exercised with caution, balancing the need for the party to obtain necessary information against the potential prejudice to third parties. The court examined the specific circumstances of the case, including the relevance of the documents to the proceedings, the potential for prejudice to Byrne, and whether there were alternative means to obtain the information. The court held that, in the absence of compelling reasons to protect the non-party's interests, the order for discovery against Byrne should be granted.

The court concluded that the documents sought were relevant to the issues in the proceedings, and there was no evidence of undue prejudice to Byrne. The court also found that alternative means of obtaining the information were not available or practical. Therefore, the application for an order compelling discovery against Byrne was successful. The court ordered Byrne to provide the specified documents to the plaintiff within a specified timeframe. This decision underscores the importance of balancing the rights of parties to access necessary information with the protection of non-parties from undue intrusion.

Orders