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Muchnicki v Avalanche Management Pty Ltd

Muchnicki v Avalanche Management Pty Ltd

Case [2020] VSC 710 28 October 2020

Discovery & Disclosure

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2019 03144

JERZY MUCHNICKI and THOMAS DANIEL GRAY	Plaintiffs
v
AVALANCHE MANAGEMENT PTY LTD (ACN 139 517 463) and AVALANCHE ALPINE HOLDINGS PTY LTD (ACN 082 328 505)	Defendants

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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2020
DATE OF RULING:	28 October 2020
CASE MAY BE CITED AS:	Muchnicki & Anor v Avalanche Management Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 710

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PRACTICE AND PROCEDURE – Discovery of documents – Particular discovery pursuant to r 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 – Whether order should be made – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Colman	LFS Legal
For the Defendants	Mr P Best	Telford Story & Associates

JUDICIAL REGISTRAR:

Introduction

By summons filed 14 July 2020, the Plaintiffs seek orders for particular discovery from the Defendants pursuant to r 29.08 of the Supreme Court (General Civil Procedures) Rules 2015 (‘Rules’). By orders made on the Court’s own motion, the summons has been referred to me, pursuant to r 84.04 of the Rules, for hearing and determination.

In support of their application, the Plaintiffs rely on the following:

(a) Affidavit of George Muchnicki (also known as Jerzy Muchnicki), the First Plaintiff, sworn 20 July 2020 (‘Muchnicki Affidavit’);

(b) Affidavit of Thomas Daniel Gray, the Second Plaintiff, sworn 20 July 2020 (‘Gray Affidavit’);

(c) Affidavit of Francis Higgins Hill sworn 27 July 2020 (‘Hill Affidavit’). Mr Hill is a solicitor with LFS Legal, solicitors for the Plaintiffs; and

(d) written outline of submissions filed 19 August 2020 (‘Plaintiffs’ Outline’).

The Defendants oppose the Plaintiffs’ application. The Defendants rely on the following:

(a) Affidavit of Shane William Short dated 14 August 2020 (‘Short Affidavit’). Mr Short is a director of each of the Defendants; and

(b) written outline of submissions filed 19 August 2020 (‘Defendants’ Outline’).

Oral submissions were made by the parties at the hearing on 21 August 2020.

The summons does not specify what further discovery is sought by the Plaintiffs. Rather, that is discernible from the Hill Affidavit, the correspondence between the parties and from their written outlines. There are 9 categories of documents in respect of which the Plaintiffs seek particular discovery. These will be explained below.

For the reasons set out below, the application for particular discovery will be dismissed.

Background

It is necessary to briefly explain what this proceeding is about and what issues are in dispute between the parties, based on the pleadings.

This proceeding has had a somewhat tortured history. The Plaintiffs originally commenced the proceeding in the Magistrates Court of Victoria as an application for preliminary discovery. That proceeding was transferred to this Court. By the time it came before me, it was apparent that the criteria for orders for preliminary discovery were not able…

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.

Continue reading Muchnicki v Avalanche Management Pty Ltd

Details

AGLC: Muchnicki v Avalanche Management Pty Ltd [2020] VSC 710
Case: [2020] VSC 710
Decision Date: 28 October 2020

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of Muchnicki v Avalanche Management Pty Ltd was heard. The dispute concerns a particular discovery application brought by the plaintiff against the defendant. The plaintiff sought to compel the defendant to produce specific documents, which were alleged to be relevant to the proceedings. The court was tasked with deciding whether an order should be made in favour of the plaintiff to compel the defendant to produce the requested documents.

The primary legal issue before the court was whether the plaintiff had established a sufficient basis to justify the particular discovery of the documents. The plaintiff argued that the documents were necessary to establish the defendant's liability in the matter. The defendant, on the other hand, contended that the documents were irrelevant and privileged, and thus should not be disclosed. The court had to assess the merits of the plaintiff's application and determine whether the plaintiff had met the threshold for compelling the production of the documents.

The court found that the plaintiff had not demonstrated a sufficient basis for the particular discovery of the documents. The plaintiff's application was based on a general belief that the documents might be relevant, rather than on specific evidence or a clear connection to the issues in the case. The court held that the threshold for compelling particular discovery was not met, and therefore, the application was refused. The court emphasised that particular discovery should only be ordered when there is a clear and compelling need for the documents in question.

The court made no order as to costs.

Orders