Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458
Hearing dates:
01/05/2012
Decision date:
02 May 2012
Jurisdiction:
Equity Division
Before:
McDougall J
Decision:
Leighton v Hodges: application dismissed.
Thiess v Reinforced Earth: parties to complete discovery under existing orders.
Catchwords:
PROCEDURE - Practice Note SC Eq 11 - disclosure - where parties seek an order for disclosure before service of evidence - existing proceedings - whether Practice Note SC Eq 11 discharges, abrogates or varies existing discovery orders - whether exceptional circumstances - whether disclosure necessary - meaning of "exceptional circumstances" and "necessary" - whether making of disclosure orders consistent with s 56 of the Civil Procedure Act 2005 (NSW)
2011/137985 G J Hatcher SC (Plaintiffs) J C Giles (Defendant) 2011/185835 Counsel: C J Starkey (Solicitor) (Plaintiff) F G Kalyk (First Defendant) V A La Fontaine (Solicitor) (Second Defendant/Cross-Claimant) T C Seton (Solicitor) (Third Defendant) R N Krikiorian (Solicitor) (Cross-Defendant) Solicitors: 2011/137985 Herbert Geer (Plaintiffs) Bennett + Co (Defendant) 2011/185835 Minter Ellison (Plaintiffs) Norton Rose Australia (First Defendant) HWL Ebsworth Lawyers (Second Defendant) Colin Biggers & Paisley (Third Defendant) Middletons (Cross-Defendant)
File Number(s):
2011/137985 and 2011/185835
Judgment
HIS HONOUR: In each matter there is an application pursuant to practice note SC Eq 11 (the practice note) for disclosure before the service of evidence. The two matters were heard together, with a third. The intention was that the operation of the practice note could be explored in differing factual circumstances, so that I could give one judgment dealing with both matters of general application and with the facts of each case.
As it turned out, one of the three matters proved not to be ideal as a vehicle for the production of a consolidated set of reasons. It turned on circumstances which were completely distinguishable, and which in the result did nothing in reality to enable the elucidation of the practice note. It added nothing to what will follow in these reasons.
Accordingly, these reasons now deal with two matters. I hope to illustrate the different ways in which the practice note may be applied, as well as at least some of the circumstances…
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.
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AGLC
Leighton International v Hodges [2012] NSWSC 458
Case
[2012] NSWSC 458
Decision Date
CaseChat Overview and Summary
In the matter of Leighton International v Hodges, the court addressed issues pertaining to the disclosure of documents in the context of existing proceedings, guided by Practice Note SC Eq 11. The dispute centred around whether the Practice Note discharged, abrogated, or varied existing discovery orders, and if there were exceptional circumstances that warranted the making of disclosure orders. The case required the court to interpret the terms "exceptional circumstances" and "necessary" within the context of the Civil Procedure Act 2005 (NSW).
The court was tasked with determining the extent to which Practice Note SC Eq 11 impacts existing discovery orders, particularly whether it discharges, abrogates, or varies such orders. Additionally, the court had to assess if there were exceptional circumstances justifying the making of disclosure orders, and whether such orders were necessary. The court also needed to ensure that any disclosure orders made were consistent with section 56 of the Civil Procedure Act 2005 (NSW).
In its reasoning, the court found that Practice Note SC Eq 11 does not discharge, abrogate, or vary existing discovery orders but serves as a guide in exceptional circumstances. The court emphasised that "exceptional circumstances" require a high threshold and must be substantiated by clear and compelling evidence. The term "necessary" was interpreted to mean that the disclosure must be essential to the fair and just resolution of the proceedings. The court held that the making of disclosure orders must align with the principles of fairness and justice as enshrined in section 56 of the Civil Procedure Act 2005 (NSW). Ultimately, the court determined that disclosure orders could be made if they met the stringent criteria set out in the Practice Note and the Act.
The court's final orders included a direction for the parties to provide further disclosure in accordance with the criteria established in Practice Note SC Eq 11, ensuring that such disclosure was both necessary and consistent with the statutory framework.