P & T Aviation Pty Limited v Wilson Aviation Pty Limited

[1993] FCA 1063

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JUDGMENT No. ........ *.*.**..../ , .*

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 3255 of 1992
GENERAL DIVISION	1

BETWEEN :  p & T AVIATION PTY LIMITED

Applicant

AND :  WILSON AVIATION PTY LIMITED

Respondent

21 June 1993

REASONS FOR JUDGMENT

LOCKHART J.

There is before the Court today a motion by the respondent to the principal proceeding, Wilson Aviation Pty Limited, seeking to set aside a notice to produce documents issued by the applicant, P & T Aviation Pty Limited. The principal proceeding commenced in this Court on 2 November 1992 and since then it has had a number of directions hearings before registrars. So far as I can discern, this is the first occasion on which the matter has come before a judge. It comes before this Court today because of the notice of motion to set aside the notice to produce.

it on an aircraft of Wilson Aviation some time ago. There is a

The case is one where P & T Aviation seeks to wind up Wilson Aviation following the service of a S . 460 notice. The amount involved in the case is small, less than $50,000 and the debt is disputed. The claim of P & T relates to work carried out by

real issue as to whether the dispute of the debt is bona fide or not, so the issues include whether there is a bona fide dispute about the debt and, to the extent that it is relevant to the case, whether Wilson Aviation is or has been at material times insolvent.

A deal of evidence has been filed in the form of affidavits touching these issues and the case is approaching the stage where	-
it is ready for hearing. The notice to produce is a document which is couched, in my view, in the widest possible terms and indeed, in my view, impermissibly wide. I need not recite the seven numbered paragraphs where it sets out the categories of documents of which production is required, for the period from
1 March 1990 to date. That is something a little over three
years.
In effect the notice seeks, as I read the document, to have access to all documents in that period held by Wilson Aviation
relating to: any financial arrangements it may have had or sought	to have with banks or other financiers, including applications
for loan and correspondence relating to it; a list of all its creditors and debtors during that period and all claims that may have been propounded against it by other parties during that time; and all correspondence between itself and certain statutory aviation authorities.

I think this is too wide and is the type of notice to

produce that should be set aside. On the other hand, plainly P

& T Aviation is entitled to production of certain of the records

of Wilson Aviation. But I think the best way to achieve that, in the circumstances, is by there being an order for discovery

of documents by Wilson Aviation and discovery by P & T Aviation. I have been informed by counsel for P & T Aviation, if not all,

certainly most of the documents in its possession relating to the issues and the case have been informally discovered. That will, no doubt, make its task of formal discovery an easy one.

I order that the notice to produce dated 20 April 1993 be In my view, the proper order for costs of the motion should
be that Wilson Aviation's costs of the motion should be paid by set aside .

P & T Aviation in any event. In the course of discussion, it

emerged that it is a case that is appropriate for mediation within the court system pursuant to 0 72 and both parties join

that the matter be referred to mediation pursuant to 0 72.	in an application to that effect. Accordingly the Court directs
The Court vacates the directions hearing fixed by the registrar for 25 June next at 9.30 am. The Court directs that there be mutual verified discovery given by the parties on the issues of whether there is a bona fide dispute as to the
existence of the debt claimed by P & T Aviation against Wilson
Aviation, and the solvency of Wilson Aviation.
I direct the registrar, in the event that the mediation is not successful, to fix a date for the giving of mutual verified discovery by the parties limited to the two issues to which I have referred and for the inspection of documents thereafter.
I direct that a recently filed motion for security for costs by Wilson Aviation should not receive a return date at this stage 1
but direct that, in the event of mediation being unsuccessful, the registrar assign it a convenient return date.

I certify that this and the

preceding three (3) pages are a
true copy of

judgment herein

Mr. Justice Lockhqrt. i

1 'i

Associate c - d,&&

Dated: 21 June 1993

Solicitors for the Applicant :	T G Hartmann & Associates
Solicitors for the Respondent :	Brian Robinson & CO

Date of Hearing	.	21 June 1993
Date of Judgment	21 June 1993