Moussa v Camden Council (No.6)

[2025] NSWSC 174

Supreme Court

New South Wales

Medium Neutral Citation:

Moussa v Camden Council (No.6) [2025] NSWSC 174

Hearing dates:

14 March 2024

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [70]

Catchwords:

CIVIL PROCEDURE – Discovery – Further discovery – Whether necessary for resolution of real issues in dispute – Whether a material change in circumstances has to be established to justify an order for further discovery in representative proceedings – Whether further discovery imposes on a defendant in representative proceedings a significant financial burden contrary to the overriding purpose of the Civil Procedure Act – Application for further discovery where no articulated reason and significant burden placed on other parties to proceedings

Legislation Cited:

Civil Procedure Act 2005 (NSW) pt 10, s 56

Uniform Civil Procedure Rules 2005 (NSW) r 21(2)(a), 21.3, 21.4

Cases Cited:

Bajramovic v Calubaquib [2015] NSWCA 139

Liu v The Age Company Limited [2016] NSWCA 115

Moussa v Camden Council (No 5) [2023] NSWSC 1135; (2023) 413 ALR 1

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Danny Marielle Moussa (P)
Camden Council (D1)
Cornish Group Spring Farm Pty Ltd (D2)
SMEC Testing Services Pty Ltd (In liq) (D3)

Representation:

Counsel:
D Priestley SC / B O’Connor (P)
S Glascott (D1)
M Windsor SC / M Hall (D2)
P Gaffney (D3)

Solicitors:
Mayweathers (P)
McCabes Lawyers (D1)
Hall & Wilcox Lawyers (D2)
Wotton + Kearney (D3)

File Number(s):

2020/359004

Publication restriction:

Not Applicable

JUDGMENT

Background

1. These representative proceedings have been commenced pursuant to Part 10 of the Civil Procedure Act 2005 (the “CPA”). The plaintiff claims damages at common law, and pursuant to the Australian Consumer Law, for himself and for all group members.

2. The plaintiff and the group members own, or owned, land in a newly developed part of an area, now called Spring Farm, which is located to the southwest of Sydney, proximate to the Nepean River. The plaintiff alleges his home, built on land in Spring Farm, has subsided due to the soil being unsound for building a residential house. He alleges that the land in Spring Farm generally was unfit for building homes on.

3. The first defendant, Camden Council (“the Council”), owned some of the land in Spring Farm that was developed and sold to a class of peoples including the plaintiff and some of the group members. This smaller subset of land owned by the Council is known as the “Council Land” in these proceedings. The Council was the principal planning authority and principal certifying authority for Spring Farm.

4. The second defendant, Cornish Group Spring Farm Pty Ltd (“CGSF”),  was the owner and the developer of some, but not all, of the land in Spring Farm. The land developed by CGSF is described as the “Cornish Masterplan Area”.

5. The third defendant, SMEC Testing Services Pty Ltd (in liquidation) (“SMEC”), undertook geotechnical investigation, advice and certification services with respect to individual lots within Spring Farm.

6. This judgment deals with the plaintiff’s Amended Notice of Motion seeking further discovery, which was filed on 15 December 2023 (“the Further Discovery Motion”).

7. The history of these proceedings can be gleaned from five previous judgments of this Court which are all available on NSW Caselaw. The judgment of particular significance is Moussa v Camden Council (No.5) [2023] NSWSC 1135; (2023) 413 ALR 1(“Judgment No.5”). In that judgment, the Court ultimately held that there were 35 Common Questions (“Common Questions”) which should be heard and answered at the same time as the plaintiff’s personal claim – which is to be determined at an initial hearing commencing on 13 July 2026.

8. The Common Questions apply to the claim of the group members. In specifying these questions at a relatively early stage, the issues to be heard and determined at the initial hearing can be readily identified. I note that the Common Questions which have been identified did not entirely equate with those identified by the parties: see Judgment No.5 at [52].

9. Common Questions 3 and 4 were posed in identical terms (except for the specification of the relevant period). The questions used the term “earthworks”, which was defined to mean:

“works by way of excavation, cutting, filling, compaction and stabilisation of the former natural state of the land, including any construction by way of drainage systems or supporting structures such as retaining walls.”

10. The term “earthworks” accompanied by such a definition had not been used in any of the pleadings, but was an obviously relevant and common issue for determination in relation to the pleaded issue of the land of the plaintiff (and group members) being “unsound for the building of homes”.

11. It should be noted that Common Questions 3 and 4 were geographically limited to the Council Land, being the area identified in the pleading of the plaintiff, as well as“… the land within the Cornish Masterplan Area reasonably proximate to the Council Land”.

Notice of Motion: Further Discovery

12. The Further Discovery Motion was filed immediately after the first two days of submissions about the existence of Common Questions. It sought further discovery from all three defendants. Different categories of documents are sought against each defendant and are set out in individual Schedules to the Further Discovery Motion, although the categories have some commonality.

13. Those schedules are as follows:

SCHEDULE D

DOCUMENTS TO BE DISCOVERED BY THE FIRST DEFENDANT

1.   All documents created by, sent, or received by the First Defendant between 1 January 2007 and 31 December 2015, which refer to earthworks to be, or which were, undertaken on any part of the Cornish Masterplan Area as defined in paragraph 1(c)(i) of the Further Amended Statement of Claim filed 25 August 2022 (FASOC) excluding the Council Land as defined in paragraph 8 of the FASOC.

SCHEDULE E

DOCUMENTS TO BE DISCOVERED BY THE SECOND DEFENDANT

1. All documents created by, sent, or received by the Second Defendant between 1 January 2007 and 31 December 2015, which refer to earthworks to be, or which were, undertaken on any part of the Cornish Masterplan Area as defined in paragraph 1(c)(i) of the FASOC excluding the Council Land as defined in paragraph 8 of the FASOC.

2.   All documents evidencing the Second Defendant’s development, or agreement to develop, any part of the land within the Cornish Masterplan Area including, but not limited to, agreements with other registered proprietors of land in the Cornish Masterplan Area relating to actual or proposed development of that land.

3.   All Planning Agreements or Planning Instruments under the Environmental Planning and Assessment Act 1979 (NSW) in relation to any part of the Cornish Masterplan Area.

SCHEDULE F

DOCUMENTS TO BE DISCOVERED BY THE THIRD DEFENDANT

1. All documents created, by sent, or received by the Third Defendant between 1 January 2007 and 31 December 2015, which refer to earthworks to be, or which were, undertaken on any part of the Cornish Masterplan Area as defined in paragraph 1(c)(i) of the FASOC excluding the Council Land as defined in paragraph 8 of the FASOC.

2.   All documents, plans, diagrams, reports, letters, advices, opinions, or laboratory or other testing results created by, sent, or received by the Third Defendant in the period 1 January 2007 to 31 December 2015 addressing or referring to:

(a) the condition of the soil on any part of the Cornish Masterplan Area excluding the Council Land;

(b) the suitability of any land within the area of the Cornish Masterplan Area excluding the Council Land for building works, including residential dwellings; and/or

(c) any structure built on land within the area of the Cornish Masterplan Area excluding the Council Land.

14. The plaintiff did not seek to pursue the Further Discovery Motion prior to the determination of the Common Questions.

15. The Further Discovery Motion is opposed by all three defendants.

16. I note that discovery was previously ordered against the Council and CGSF on 11 February 2022. No discovery was sought at that time against SMEC because SMEC was an entity in liquidation. However, since 25 August 2022, when its liability insurer extended indemnity, SMEC is defending the proceedings. SMEC was ordered to provide discovery on 27 October 2022.

Plaintiff’s Submissions

17. The plaintiff seeks orders for further discovery consequent upon the Court’s identification of the Common Questions in Judgment No.5. The plaintiff submits, in outline, that discovery should be ordered for the following reasons:

“(a)   a significant issue in the proceedings concerns the ‘earthworks’ performed in the Cornish Masterplan Area. A single category of discovery against each defendant directed to the ‘earthworks’ is necessary to resolve the real issues in dispute in the proceedings. This is consistent with the common questions [3] to [6];

(b)   a significant and persistent issue in the proceedings concerns which lots CGSF ‘developed’ in the Cornish Masterplan Area. A single category of discovery against CGSF directed to this question is therefore necessary to resolve the real issues in dispute in the proceedings. This is consistent with common question [2]; and

(c)   a significant issue in the proceedings concerns the site classification and expert geotechnical reports in respect of the Cornish Masterplan Area. A single category of discovery against SMEC directed to this issue is therefore necessary to resolve the real issues in dispute in the proceedings. This is consistent with common question [17] and [24] to [27].”

18. The plaintiff has identified four categories, some of which are common across the defendants that the documents sought fall under, and which were addressed by its submissions.

Category (a) – “Earthworks”

19. One subject of the Common Questions was the “earthworks” performed on the land. Discovery is sought in the following terms:

“All documents created by, sent or received by the [defendant] between 1 January 2007 and 31 December 2015, which refer to earthworks to be, or which were, undertaken on any part of the Cornish Masterplan Area as defined in paragraph 1(c)(i) of the Further Amended Statement of Claim filed 25 August 2022 excluding the Council Land as defined in paragraph 8 of the FASOC.

‘earthworks’ means works by way of excavation, cutting, filling, compaction and stabilisation of the former natural state of the land, including any construction by way of drainage systems or supporting structures such as retaining walls (the Earthworks Category).”

20. The Earthworks Category is sought against all defendants and is the only category sought against the Council.

21. The plaintiff submits that the documents sought in the category are relevant to the proceedings because discovery thus far has been confined to the Council Land, which is an area within the Cornish Masterplan Area. However, he submits that the pleadings and evidence indicate extensive problems with the “earthworks” which extend beyond the Council Land. Further, whilst some of the Common Questions are limited to the Council Land or areas “reasonably proximate” to the Council Land, some of the common questions refer to the entire Cornish Masterplan Area.

22. The plaintiff further submits that the Earthworks Category is relevant and necessary because the undertaking of undefined earthworks prior to the subdivision and development of the Cornish Masterplan Area is referred to throughout the pleadings and, therefore, it is relevant to a fact in issue – namely that the land was unsound for residential building.

23. The plaintiff submits that its expert geotechnical evidence addresses the condition of the soil in the whole of the Cornish Masterplan Area. The plaintiff further submits that discovery of documents covering the entire Cornish Masterplan Area would also reveal what works were carried out within the more limited area of the Council Land, and areas reasonably proximate to the Council Land.

Category (b) – “Development”

24. Another subject of the Common Questions was the identification of lots in the Cornish Masterplan Area that were developed by CGSF. Accordingly, the following category is sought against CGSF:

“all documents evidencing the Second Defendant’s development, or agreement to develop, any part of the land within the Cornish Masterplan Area including, but not limited to, agreements with other registered proprietors of land in the Cornish Masterplan Area relating to actual or proposed development of that land (the Development Category).”

25. In its defence, CGSF “admits developing some, but not all, of the Cornish Masterplan Area as alleged”. The plaintiff submits that the Development Category is necessary to resolve the issue of which lots in the area were developed by CGSF, in the circumstances where CGSF has not provided particulars demonstrating which lots it admits to developing and which it does not.

Category (c) – “Planning instruments”

26. Against CGSF, the plaintiff seeks:

“all planning agreements or planning instruments under the Environmental Planning and Assessment Act 1979 (NSW) in relation to any part of the Cornish Masterplan Area (the Planning Category).”

27. The plaintiff submits that this category of discovery will shed light on CGSF’s role as the developer of particular lots and will lead to relevant evidence about the proof of a disputed issue, namely, what lots it in fact developed. It can be considered together with the Development Category.

Category (d) – “Testing Documents”

28. The final category of documents sought by the plaintiff concerns SMEC’s geotechnical services performed in the Cornish Masterplan Area. The plaintiff seeks:

“all documents, plans, diagrams, reports, letters, advices, opinions or laboratory or other testing results created by, sent, or received by the Third Defendant in the period 1 January 2007 to 31 December 2015 addressing or referring to:

(a) the condition of the soil on any part of the Cornish Masterplan Area excluding the Council Land;

(b) the suitability of any land within the area of the Cornish Masterplan Area excluding the Council Land for building works, including residential dwellings; and/or

(c) any structure built on land within the area of the Cornish Masterplan Area excluding the Council Land (the Testing Category).”

29. The plaintiff submits that this category against SMEC is relevant because the issue of the contents of the Site Classification Reports (“SCR”) is relevant to a fact in issue as pleaded in the plaintiff’s case, namely, the suitability of the land for building.

First Defendant’s Submissions

30. The first defendant, Camden Council, opposes the Further Discovery Motion on the basis that there have been no material changes in circumstances justifying the further discovery since the initial discovery ordered on 11 February 2022.

31. Further, the Council submits that the plaintiff has not specifically pleaded, and the Council does not know, within the Cornish Masterplan Area, exclusive of the Council Land, which lots are alleged to be “unsound for building”. The Council would be obliged to determine what areas meet the description of “unsound for building” in order to decide which documents are relevant for discovery. It is submitted that a discovery which requires the Council to interpret the category and draw its own conclusions to determine relevance would be unduly oppressive.

32. The Council also submits that, as a consequence of the description “unsound for building”, it would, in substance and effect, be obliged to provide discovery for all lots in the Cornish Masterplan Area generally, and not only those alleged to be unsound for building. In that respect, the Council submits that such discovery would be far too wide, and entirely oppressive.

33. The Council also relies upon the fact that it has already provided discovery in respect of the Council Land documents, and notes that what is being proposed is not further and better discovery arising because it had not adequately discovered the required documents during the earlier exercise of discovery.

Second Defendant’s Submissions

34. The second defendant, CGSF, submits that there has been no change in circumstance which warrants any further discovery, and that the determination of the Common Questions does not constitute such a material change.

35. The second defendant submits that there is no basis in the pleadings for any discovery category which covers the entirety of the broader Cornish Masterplan Area, and that discovery over that whole area does not necessarily bear relevance to the plaintiff’s lot, or the Common Questions.

36. The second defendant submits that the further discovery would impose on them a significant financial burden, which would be contrary to the overriding purpose of civil litigation as set out in s 56 of the CPA. CGSF submits that it has already spent $400,000 on discovery and that the further discovery would cost between $1.1M and $1.2M. It is submitted that granting further discovery would impose a disproportionate cost burden on the second defendant. The second defendant supported this submission with evidence, which was not the subject of any cross-examination, explaining how the above estimates were reached.

37. Finally, it was submitted that any further discovery would have the tendency to delay the final resolution of the matter.

Third Defendant’s Submissions

38. The third defendant, SMEC, submits that the Court has already considered and rejected the submission that discovery should be granted in relation to documents concerning land outside of the Council Land and that there has been no material change in this particular circumstance. It is submitted that the plaintiff has not identified a new matter which demonstrates the relevance of the entire Cornish Masterplan Area to the claim. It submits that the Common Questions are mostly limited to Council Land and land reasonably proximate to the Council Land and, thereafter,, the formulation of the Common Questions is not a new matter which justifies a revisiting of the issue of discovery.

39. Further, it is submitted that the categories sought are not relevant to the plaintiff’s claim or the Common Questions because the Court has already decided that discovery about the broader Cornish Masterplan Area was not relevant to the plaintiff’s pleaded case. The third defendant submits that the Further Discovery Motion ignores the decision of this Court in Judgment No.5 to limit several of the key Common Questions in their application to ensure that they did not relate to the whole Cornish Masterplan Area.

40. With regards to the Earthworks Category and the plaintiff’s submission that discovery relating to land outside of the Council Land will “illuminate” what occurred within the Council Land, SMEC submits:

“It is difficult to understand why that would be so. At best, this seems to be a request to permit discovery that on any view of it would not be directly relevant to any fact in issue in the initial trial but which might reveal similar fact evidence from which inferences might be drawn about matters that are actually relevant to the proceedings.”

41. SMEC submits that granting discovery in relation to “disputed issues not arising at the initial trial, and which may never arise for judicial determination” undermines the key purpose of representative proceedings, being the effective resolution of issues based on the pleadings or the Common Questions.

Plaintiff’s Submission in Reply

42. In response to the submissions of each of the defendants, the plaintiff submits that a material change in circumstances does not need to be established before an order for further discovery can be made. However, if there were such a requirement, the plaintiff serving its lay and expert evidence, alongside the formulation of the Common Questions has placed a new focus on particular issues, which are the subject of the targeted discovery request.

42. As to CGSF’s emphasis on the significant costs that would be incurred from the discovery, the plaintiff submits CGSF’s position to be that it does not have any proposed method to efficiently identify, out of all of the documents it holds, which documents relate to the earthworks conducted and therefore every document must be considered for its relevance. The plaintiff submits that a defendant’s lack of a system to efficiently identify relevant documents is not a satisfactory basis to refuse discovery. The plaintiff submits that the category of documents sought is relatively confined and that the costs would not be disproportionate or oppressive. He submits that it could not be said that the discovery request was an abuse of process.

43. The plaintiff also provides his own estimate of the likely costs to be incurred by CGSF in carrying out the additional discovery. That assessment is approximately $382,000. The plaintiff further submits that the time involved would be significantly shorter than the 13 to 15 month estimate for completion of the further discovery process. He submits that a much shorter time estimate would be appropriate.

44. In response to SMEC’s submissions, the plaintiff submits that the documents sought are not unduly onerous or oppressive, as they fall within the range of documents that a company such as SMEC would have possession of and retain records of.

Discernment

46. I am not at all persuaded that, in representative proceedings, a pre-condition to further discovery is the existence of a material change of circumstances. No authority was cited for that proposition as it relates to representative proceedings.

47. The authorities cited by CGSF do not refer to representative proceedings, and do not, in my view, establish any absolute principle that without a material change in circumstances, a court will not consider a second interlocutory application, at least in the absence of an abuse of process.

48. Beazley P said in Liu v The Age Company Limited [2016] NSWCA 115, this at [13]:

“For my part, I do not consider there is any preclusive rule in relation to the bringing of second interlocutory applications. Rather, the question is always whether it is in the interests of justice that a second application be determined …”

See: McColl JA at [168]-[199]; Ward JA at [292]. See also: Bajramovic v Calubaquib [2015] NSWCA 139 at [38]-[44].

49. Whilst the Court is always astute to avoid any suggestion of abuse of process, or unfairness to a party in circumstances where it is obviously not the case, I am not satisfied that in order to succeed on this application the plaintiff must demonstrate a material change in circumstance. This is particularly so in representative proceedings where the process of determining particular issues is apt to be an iterative one.

50. If such a material change is, contrary to my view, necessary, then the definition of the Common Questions for determination at the first hearing is a sufficient reason for further discovery to be granted if the Court is otherwise satisfied that such discovery would be appropriate.

51. The submissions of the plaintiff on the Earthworks Category are unpersuasive. It is correct that the definition of the earthworks for the purpose of the Common Questions is not the same as the meaning of the phrase used in the most recent pleadings.

52. However, this category seeks discovery of all documents relating to the whole of the Cornish Masterplan Area. Although the number of lots in the Cornish Masterplan Area will change over time as further development occurs, at the relevant time there were 64 lots in the Council Land Area, and on the plaintiff’s reasonable estimate, over 1,000 lots in the Cornish Masterplan Area.

53. The basis for this extended area for discovery in the Earthworks Category is that such documents have the “potential to shed light” on the issue raised by Common Questions 3 and 4, and the condition of the soil more generally. Further, the plaintiff asserts that documents indicating what earthworks programs were conducted across the larger area will illuminate what occurred in the area the subject of the Common Question.

54. The plaintiff did not rely upon any specific evidence to support his rather general submission. I regard this as significant in circumstances where, as the plaintiff’s submissions note, his expert geotechnical evidence addresses the conditions of the soil across the Cornish Masterplan Area. If the expert’s opinion identified the need for further documents, or an inability to reach a firm conclusion without further discovery in this category, such evidence may have been persuasive.

55. In light of these matters, and at this stage of these proceedings, I am unpersuaded that the further discovery sought by the plaintiff is warranted. In the absence of a specifically articulated reason, and in light of the burden placed on the defendants, an order for further discovery of this category does not appear to advance the efficient and cost‑effective determination of the Common Questions.

56. Insofar as the “Development Category” of documents is concerned, I accept that ordering discovery in accordance with this category would entail significant cost and expense on the part of the second defendant, to such an extent that it would be oppressive.

57. Nevertheless, it is apparent from the pleadings and the correspondence between the solicitors for the plaintiff and the solicitors for the second defendant, that there are, in fact, a limited number of lots specified in Schedule 1 to the Second Further Amended Statement of Claim (“Second FASOC”) filed on 20 March 2024, which remain in dispute.

58. The plaintiff has specified in Schedule 1 of the Second FASOC, the individual lots which he says were developed by the second defendant. The second defendant pleads, in its defence, that it developed some, but not all, of those lots. It does not identify those that it in fact developed.

59. In its letter to the plaintiff’s solicitors of 22 December 2023, the solicitors for CGSF, in opposing the filing of the Second FASOC, identified 34 lots out of the 44 which it proposed were to be added in Schedule 1, which CGSF denied developing. As the affidavit of Mr Adams sworn on 6 February 2024 shows, there is a genuine dispute about whether the 34 lots were developed by CGSF. That dispute is part of the factual material relevant to Common Question 2 which refers to the developer of the lots in the whole of the Cornish Masterplan Area.

60. In those circumstances, I am satisfied that the plaintiff is entitled to discovery but limited to the 34 lots described in Annexure A to the letter of 22 December 2023. With the category being so limited, the cost and expense would not, in my estimation, amount to a sum which would be oppressive.

61. The category for discovery which gives effect to this conclusion ought to be expressed in this way:

“All documents evidencing the entity or entities including but not limited to the Second Defendant, responsible for the development of, or who entered into an agreement to develop, the 34 lots of Land in the Cornish Masterplan Area described in Annexure A to the letter dated 22 December 2023 from Hall & Wilcox Lawyers to Mayweathers Lawyers.”

62. It follows from my conclusion and the permitted category outlined above that proposed Category 3, i.e., planning agreements or instruments, is unnecessary because such documents would be unlikely to fall outside of the Development category documents.

63. The remaining category, “Testing Documents”, is sought only against the third defendant. It is a category which relates to the whole of the Cornish Masterplan Area, and excludes the area of the Council Land. It seeks documents “addressing or referring to” the conditions of the soil, the suitability of the land for building works, and any structure built on the land.

64. This is a very broad category and is justified by the plaintiff on a very similar basis to the Earthworks Category. In addition, the plaintiff submits that the documents would be relevant to and assist in identifying in answer to Common Question 17, which lots in the Council Masterplan Area were the subject of an SCR issued by the third defendant.

65. Discovery had previously been ordered against the third defendant for a very wide range of documents limited to the area of the Council Land. Since that time, Common Question 17 has been identified.

66. It seems to me that the plaintiff is entitled to discovery of documents which assist him in proving which lots were the subject of SCR. I would be prepared to allow discovery to that end of the following category of document:

“All Site Classification Reports, including laboratory and testing results prepared and issued by the Third Defendant with respect to any lots in the Cornish Masterplan Area, excluding any lots in the Council Land area.”

Costs

67. I now turn to consider the question of the costs of the Further Discovery Motion. In my view, the starting point is that costs ordinarily follow the event.

68. The plaintiff has been wholly unsuccessful against the first defendant. He should pay the first defendant’s costs of the Further Discovery Notices.

69. The plaintiff has been granted further discovery against the second and third defendants, however the discovery ordered is not in the formulation sought by the plaintiff. Indeed, the scope of the discovery is significantly more limited. Opposition to the ambit of the discovery with respect to the Earthworks Category was sought in the submissions of the first and second defendants. In my view, each of the plaintiff, second and third defendants has had a measure of “success” in the Further Discovery Motion and the appropriate costs order is for their costs of the Motion to be costs in the cause.

Orders

70. I make the following orders:

1. Pursuant to r 21(2)(a) of the Uniform Civil Procedure Rules 2005, the second defendant is to give discovery of the documents in the following category:

“All documents evidencing the entity or entities including but not limited to the second defendant, responsible for the development of, or who entered into an agreement to develop, the 34 lots of Land in the Cornish Masterplan Area described in Annexure A to the letter dated 22 December 2023 from Hall & Wilcox Lawyers to Mayweathers Lawyers.”

2. Pursuant to r 21(2)(a) of the Uniform Civil Procedure Rules 2005, the third defendant is to give discovery of the documents in the following category:

“All Site Classification Reports, including laboratory and testing results prepared and issued by the third defendant with respect to any lots in the Cornish Masterplan Area, excluding any lots in the Council Land area.”

3. Both defendants are respectively to give discovery pursuant to Order 1 and Order 2:

(a) by serving a verified list of documents in accordance with r 21.3 and r 21.4 of the Uniform Civil Procedure Rules 2005, the format of which may be modified so as to accommodate the terms of the Protocol;

(b)   electronically, in accordance with the Protocol, including by serving a copy of all documents, other than privileged documents, set out in the verified list.

4. Order that such Discovery is to occur by 30 June 2025.

5. Notice of Motion filed 15 December 2023 by the plaintiff is otherwise dismissed.

6. Order the plaintiff to pay the first defendant’s costs of the Motion.

7. Order that the costs of the plaintiff, second defendant and third defendant be costs in the cause.

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Decision last updated: 14 March 2025