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Murray v Wheeler

Murray v Wheeler

Case [2013] NSWSC 137 21 February 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Murray & Anor v Wheeler & Ors [2013] NSWSC 137
Hearing dates: 21 February 2013
Decision date: 21 February 2013
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Summons dismissed

Catchwords: [PRACTICE AND PROCEDURE] [PRELIMINARY DISCOVERY] - where parties against whom preliminary discovery under Part 5 rule 5.3 of the Uniform Civil Procedure Rules 2005 is sought had been notified previously that the applicants were going to join them to proceedings in the District Court in respect of the same issues the subject of the relief which they may be entitled to claim in this Court - whether such notification evidenced that the applicants had sufficient information to decide whether or not to commence proceedings
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Optiver Australia Pty Ltd v Tibra Trading Pty Ltd and Others (2008) 169 FCR 435
St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147
Category: Principal judgment
Parties: Craig Donald Murray (1st Applicant)
S.T.A.T. Security Training & Tactics Pty Limited (2nd Applicant)
Craig Wheeler (1st Respondent)
Mobile Witness Australia Pty Limited (2nd Respondent)
Digital Video Witness (Aust) Pty Limited (3rd Respondent)
Representation: DP O'Connor (Applicants)
JP Donohoe (Respondents)
Stevens Cottee Lawyers (Applicants)
Avondale Lawyers (Respondents)

File Number(s): 2012/200658
Publication restriction: Nil

Judgment

The applicants, Craig Donald Murray and S.T.A.T. Security Training and Tactics Pty. Limited (STAT) (a company of which Mr Murray is a director and shareholder), seek an order pursuant to Part 5 sub-rule 5.3(1) of the Uniform Civil Procedure Rules 2005 (NSW). That sub-rule provides as follows:

5.3 Discovery of documents from prospective defendant

(1) If it appears to the court that:

(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c) inspection of such a document would assist the applicant to make the decision concerned,

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

The applicants rely upon the affidavits of Candice Alana de Bressac, the applicants' solicitor, sworn on 25 June 2012 and those of Mr Murray of 25 June 2012 and 17 December 2012. The respondents, Craig Wheeler, Mobile Witness Australia Pty Limited and Digital Video Witness (Aust) Pty Limited, have relied upon the affidavit of the first respondent, Mr Wheeler, sworn 12 October 2012.

Mr Murray and Mr Wheeler met through their involvement in the security industry.…

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 Murray v Wheeler

Details

AGLC: Murray v Wheeler [2013] NSWSC 137
Case: [2013] NSWSC 137
Decision Date: 21 February 2013

CaseChat Overview and Summary

Murray v Wheeler involved a dispute between Murray, the applicant, and Wheeler, the defendant, concerning preliminary discovery under Part 5 rule 5.3 of the Uniform Civil Procedure Rules 2005. Murray sought discovery from Wheeler of documents potentially relevant to an upcoming District Court proceeding in which Murray intended to join Wheeler as a defendant. Murray had previously notified Wheeler that they intended to join them in the District Court proceeding regarding the same issues at hand. The legal question before the court was whether this prior notification to Wheeler constituted sufficient information for Murray to have made a decision on whether or not to commence proceedings.

The court considered the nature of preliminary discovery and whether the prior notification to Wheeler constituted sufficient information. The court noted that preliminary discovery is a tool to assist parties in deciding whether to commence proceedings by allowing them to obtain information necessary to make that decision. The court held that the notification to Wheeler, which informed them of Murray's intention to join them in the District Court proceeding, did not necessarily provide Murray with sufficient information to decide whether to commence proceedings. The court emphasised that the notification did not contain details of the evidence Murray intended to rely on, nor did it provide information about the merits of the claim. As a result, the court determined that Murray had not demonstrated that they had sufficient information to make a decision on whether to commence proceedings, and thus, the application for preliminary discovery was dismissed.

The court's decision in Murray v Wheeler highlights the importance of providing sufficient information when seeking preliminary discovery. The court underscored that prior notification of a potential joinder is not, in itself, sufficient to satisfy the threshold requirement for preliminary discovery. Instead, the party seeking discovery must demonstrate that they have enough information to make an informed decision on whether to commence proceedings. This decision serves as a reminder to parties that the standard for preliminary discovery is not easily met, and courts will closely scrutinise applications to ensure that the threshold requirement is met.

Orders