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 and that relate to that question.

(2) Unless the court orders otherwise, an application for an order under this rule:

(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.

5 It will be observed that it operates against, “a person who is not a party to proceedings”, but who “may have or have had possession of a document that relates to any question in the proceedings.”

6 In my view, it is plain on the face of the rule that it authorises third party discovery in respect of existing proceedings. If that were not so, the precondition - that it must appear to the court that the person has or has had possession of documents relating to a question in the proceedings - could never be met and the rule would serve no function whatsoever.

7 There does not appear to be any authority directly on the point. At least, the Court was taken to no authority. However, I note that in Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASCA 123, the Court of Appeal of Western Australia, whilst dismissing an application for third party discovery in relation to current proceedings because the categories of documents sought were too wide, nonetheless permitted the respondent “an opportunity to formulate orders confined to documents that relate to the matters in issue in the action” (see Newnes AJA, with whom Buss JA agreed, at [43]). I cannot accept that their Honours would have allowed the matter to go so far had it been plain, as is submitted for Byrne Lewis Constructions in this case it is plain, that the rule does not apply in respect of existing proceedings. I note that the relevant rule in Western Australia, which is set out in the reasons of Newnes AJA at [27], is not relevantly distinguishable from r 5.4. It applies to a person who is not a party to an “action” but who may have or may have had possession of documents relating to any matter in question in “the action.”

8 Accordingly, I reject the submission that r 5.4 does not authorise the relief sought; and I conclude, on the contrary, that it does.

9 That being so, it is agreed that I should make the orders sought. I do however note that they require discovery by 11 November 2008 and that may be a somewhat optimistic timetable. I will hear counsel on the precise form of orders to be made and on the question of costs.

10 I order Byrne Lewis Constructions Pty Ltd to serve upon the plaintiff by 30 January 2009 a verified list of documents in respect of the categories of document set out in paragraph 1 of the plaintiff's notice of motion filed on 27 October 2008. I make an order in terms of paragraph 5 of that notice of motion substituting, for the date 11 November 2008, the date 30 January 2009. I list the proceedings for directions on 6 February 2009.

11 I order Byrne Lewis Constructions Pty Ltd to pay the plaintiff's costs of the application for third party discovery.

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