FEDERAL COURT OF AUSTRALIA
Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233
File number: WAD 399 of 2018 Judge: JACKSON J Date of judgment: 28 February 2020 Catchwords: PRACTICE AND PROCEDURE - notice to produce a document mentioned in a pleading or affidavit - whether documents are mentioned in a witness statement annexed to an affidavit - no direct allusion to a document - notice to produce set aside
PRACTICE AND PROCEDURE - discovery - order for particular discovery - circumstances where order would be made - where documents not relevant to the central issue - where discovery would not facilitate the efficient conduct of the proceedings - application dismissed
Legislation: Insurance Contracts Act 1984 (Cth) s 57
Federal Court Rules 2011 (Cth) rr 20, 20.21, 20.31, Division 20.2
Cases cited: Apotex Pty Ltd v ICOS Corporation (No 2) [2017] FCA 589
Australian Competition and Consumer Commission v Australialink Pty Ltd [2009] FCA 265; (2009) 177 FCR 35
Australian Pipe & Tube Pty Ltd v QBE Insurance (Australia) Limited (No 2) [2018] FCA 1450
Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63; (2012) 201 FCR 321
Dubai Bank Limited v Galadari (No 2) [1990] 1 WLR 731
HIH Casualty & General Insurance Ltd (in liq) v Insurance Australia Ltd (No 2) [2006] VSC 128
King v GIO Australia Holdings Ltd [2001] FCA 1487
Marubeni Corporation v Alafouzos (Court of Appeal Civil Division, Lawton LJ, 6 November 1986)
Quilter v Heatly (1883) 23 Ch D 42
Date of hearing: 27 February 2020 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: Mr GJ Pynt Solicitor for the Applicant: Herbert Smith Freehills Counsel for the Respondent: Mr T Mehigan with Mr B Mostafa Solicitor for the Respondent: Ashurst Australia ORDERS
WAD 399 of 2018 BETWEEN: KOOLAN IRON ORE PTY LTD (ABN 87 099 455 277)
Applicant
AND: INFRASSURE LTD
Respondent
JUDGE:
JACKSON J
DATE OF ORDER:
28 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The applicant has leave to file and serve on the respondent the:
(a)second witness statement of Mark Davidson dated 3 February 2020;
(b)third witness statement of Mark Davidson dated 7 February 2020; and
(c)supplementary expert report of John McKenzie dated 16 January 2020.
2.The applicant has leave to file and serve an amended statement of claim in the form annexed to the affidavit of Mark Damien Darwin dated 17 February 2020 at MDD-4.
3.The trial dates of 16 to 20 March 2020 are vacated.
4.The solicitors and counsel for the parties must confer with a view to submitting to the court, on or before Friday 6 March 2020, a minute of consent orders making directions for the further programming of the matter.
5.The notice to produce dated 20 February 2020 served by the applicant is set aside.
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- Case
- [2020] FCA 233
- Decision Date
CaseChat Overview and Summary
The legal issues revolved around whether the documents mentioned in the witness statements were sufficiently referenced to warrant a notice to produce and whether an order for particular discovery was warranted. The court had to determine if the documents were relevant to the central issue of the proceedings and if the discovery would facilitate the efficient conduct of the proceedings.
The court found that the documents were not directly referenced in the witness statements, and thus, the notice to produce was set aside. The court also concluded that the documents were not relevant to the central issue of the proceedings and that the discovery would not facilitate the efficient conduct of the proceedings. Therefore, the interlocutory application was dismissed. The court allowed the applicant to file and serve additional documents and an amended statement of claim. The trial dates were vacated, and the parties were directed to confer and submit a minute of consent orders for further programming of the matter.
The court ordered that the applicant must pay the respondent's costs of the interlocutory application and the respondent's costs thrown away by reason of the amendment of the statement of claim and by reason of the vacation of the trial dates, in any event. The orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The applicant has leave to file and serve on the respondent the:
(a) second witness statement of Mark Davidson dated 3 February 2020;
(b) third witness statement of Mark Davidson dated 7 February 2020; and
(c) supplementary expert report of John McKenzie dated 16 January 2020.
2. The applicant has leave to file and serve an amended statement of claim in the form annexed to the affidavit of Mark Damien Darwin dated 17 February 2020 at MDD-4.
3. The trial dates of 16 to 20 March 2020 are vacated.
4. The solicitors and counsel for the parties must confer with a view to submitting to the court, on or before Friday 6 March 2020, a minute of consent orders making directions for the further programming of the matter.
5. The notice to produce dated 20 February 2020 served by the applicant is set aside.
6. The applicant's amended interlocutory application dated 25 February 2020 is otherwise dismissed.
7. The applicant must pay the respondent's costs of the interlocutory application and the respondent's costs thrown away by reason of the amendment of the statement of claim and by reason of the vacation of the trial dates, in any event.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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