Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd (No 2)

Mayfield Development Corporation Pty Ltd sought an order for discovery against non-parties in the Federal Court of Australia. The defendant, NSW Ports Operations Hold Co Pty Ltd, had applied for a stay of the proceedings due to ongoing civil penalty proceedings. The applicant, Mayfield, then sought an order for discovery against non-parties, despite the stay order in place. The central issue before the court was whether the applicant could proceed with its application for discovery against non-parties, despite the stay order and under the provisions of section 83 of the Competition and Consumer Act 2010 (Cth). The court also needed to consider whether the application for discovery could proceed before the defendant filed its defence.

The court determined that the application for discovery could not proceed given the stay order was in place. It noted that the stay order was designed to prevent the applicant from pursuing the discovery application until the civil penalty proceedings were resolved. The court emphasised that the stay order should not be circumvented by making an application for discovery against non-parties. The court held that the applicant's application for discovery was premature and could not proceed until the stay order was lifted or varied. The court also pointed out that the application for discovery was made prior to the defendant filing its defence, which further supported the dismissal of the application.

In light of the above, the court varied the stay order to allow the applicant to file and serve its amended originating application and amended statement of claim. The respondents were not required to take any steps in relation to the amended documents until the stay was lifted. The applicant's interlocutory application was otherwise dismissed, and the applicant was ordered to pay the respondents' costs forthwith. The court's decision highlighted the importance of adhering to stay orders and the need for applicants to ensure that their applications are made at the appropriate time in the proceedings.