Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: O’Connor v O’Connor [2018] NSWCA 214 Hearing dates: 30 August 2018 Decision date: 28 September 2018 Before: McColl JA at [1]
Macfarlan JA at [2]
Simpson AJA at [3]Decision: 1. Appeal allowed.
2. Judgment of the Supreme Court of 30 November 2017 set aside.
3. Within 42 days the first and second respondents give discovery under Part 5 Rule 3 of the Uniform Civil Procedure Rules 2005 (NSW) of documents of the kind specified in the Annexure to these reasons.
4.Division 1 of Part 21 of the Uniform Civil Procedure Rules applies to and in respect of discovery and inspection of documents the subject of order 3 in the same way as it applies to the discovery and inspection of documents the subject of an order for discovery under that division.
5. The first and second respondents pay the costs of the first and second appellants on the appeal; and
6. The first and second respondents pay the costs of the first and second appellants of the proceedings in the Supreme Court.Catchwords: APPEALS – civil procedure – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – where application dismissed for failure to satisfy the Court of entitlement to make a claim for relief – whether dismissal involved a determination of the merits of the claim at an interlocutory stage
CIVIL PROCEDURE – preliminary discovery – production of documents concerning negotiations leading to acquisition of company – applicants’ entitlement to disclosure – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – whether discovery may be given of documents relating only to quantumLegislation Cited: Civil Procedure Act (NSW) 2005
Uniform Civil Procedure Rules r 5.3; r 5.3(1); r 21.7Cases Cited: Brunninghausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWCA 199
Garth Barnett Interior Design Pty Ltd v Ellis
[2009] NSWCA 193
[Glavanics v Brunninghausen (1996) 19 ACSR 204; (1999) 14 ACLC 345
Hatfield v TCN Channel 9 Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ian Edward Morton & 5 Ors v Nylex Limited & 1 Or [2007] NSWSC 562
Pfizer Island Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 351 ALR 103; [2017] FCAFC 193
St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147
Steffen v ANZ Banking Group [2009] NSWSC 666
Strong v Repide [1909] USSC 119; (1909) 213 US 419Category: Principal judgment Parties: Morgan O’Connor (1st Appellant)
Michael Stack (2nd Appellant)
John O’Connor (1st Respondent)
Diona Pty Ltd (2nd Respondent)Representation: Counsel:
Solicitors:
Dr C Birch SC / D DeBuse (Appellants)
E A Cheeseman SC / L Gor (Respondents)
Coleman Greig Lawyers (Appellants)
Colin Biggers & Paisley (Respondents)
File Number(s): 2017/386706 Publication restriction: No Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Equity Division
- Citation:
O’Connor v O’Connor
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- AGLC
- O'Connor v O'Connor [2018] NSWCA 214
- Case
- [2018] NSWCA 214
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the Supreme Court erred in dismissing the application for preliminary discovery for failure to satisfy the requirements of rule 5.3(1) of the *Uniform Civil Procedure Rules 2005* (NSW), and whether such dismissal involved an impermissible determination of the merits of the applicants' claim at an interlocutory stage. The Court also considered whether discovery could be granted for documents relating solely to the quantum of a claim.
The Court of Appeal found that the Supreme Court had erred in its approach. It held that the threshold for obtaining preliminary discovery under rule 5.3(1) is not as high as that required for a final determination of the merits of a claim. The Court reasoned that the purpose of preliminary discovery is to enable a party to ascertain whether they have a cause of action and, if so, to identify the parties against whom it may be brought. The Court concluded that the applicants had demonstrated a sufficient entitlement to make a claim for relief to warrant the grant of preliminary discovery, and that the documents sought were relevant to establishing that entitlement.
Consequently, the Court of Appeal allowed the appeal, set aside the judgment of the Supreme Court, and ordered the first and second respondents to provide discovery of the specified documents within 42 days. The Court also ordered that the first and second respondents pay the costs of the appellants on the appeal and in the Supreme Court proceedings.
Orders
Orders of the court
1. Appeal allowed.
2. Judgment of the Supreme Court of 30 November 2017 set aside.
3. Within 42 days the first and second respondents give discovery under Part 5 Rule 3 of the Uniform Civil Procedure Rules 2005 (NSW) of documents of the kind specified in the Annexure to these reasons.
4.Division 1 of Part 21 of the Uniform Civil Procedure Rules applies to and in respect of discovery and inspection of documents the subject of order 3 in the same way as it applies to the discovery and inspection of documents the subject of an order for discovery under that division.
5. The first and second respondents pay the costs of the first and second appellants on the appeal; and
6. The first and second respondents pay the costs of the first and second appellants of the proceedings in the Supreme Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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