Pos-Np Pty Ltd v Resource Pacific Pty Ltd - [2021] NSWSC 406

Supreme Court

New South Wales

Medium Neutral Citation: POS-NP Pty Ltd v Resource Pacific Pty Ltd [2021] NSWSC 406
Hearing dates: On the papers
Date of orders: 21 April 2021
Decision date: 21 April 2021
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Notice to produce set aside

Catchwords:
PRACTICE AND PROCEDURE – notice to produce – whether seeks production of documents referred to in affidavits – whether seeks production of a specific document – whether seeks discovery – whether tends to subvert operation of Practice Note SC Eq 11

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
New Cap Reinsurance Corporation Ltd v Daya [2008] NSWSC 64
Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598
Re Force Corp Pty Ltd (Recs and Mgrs Apptd) (In Liq) [2018] NSWSC 896
Re Octaviar Ltd (recs and mgrs apptd) (in liq) [2012] NSWSC 1027
Rinehart v Rinehart [2015] NSWSC 205
The Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502

Category: Procedural rulings
Parties: POS-NP Pty Ltd (Plaintiff/Respondent)
Resource Pacific Pty Ltd (Defendant/Applicant)
Representation:
Counsel:
S Scott (Plaintiff/Respondent)
Solicitors:
MinterEllison (Plaintiff/Respondent)
Henry William Lawyers (Defendant/Applicant)

File Number(s): 2019/380613

Judgment

On 23 February 2021, the plaintiff served on the defendant a Notice to Produce, purportedly under Uniform Civil Procedure Rules 2005 (“UCPR”) r 21.10.
By notice of motion filed on 24 March 2021, the defendant seeks an order setting aside that notice to produce.
UCPR r 21.10 provides for a notice seeking production of:

any document “referred to” in, relevantly, an affidavit served by the other party; and

any other “specific document” clearly identified in the notice that is relevant.

The Notice to Produce seeks 21 categories of documents, all of which are described at a high level of generality.
Fifteen of the 21 paragraphs seek documents “as referred to” in affidavits served on behalf of the defendant.
In order that a document be “referred to” in, relevantly, an affidavit for the purpose of UCPR r 21.10, the affidavit must make a direct allusion to a document. [1]
1. Eg New Cap Reinsurance Corporation Ltd v Doya [2008] NSWSC 64.
In my opinion, none of the paragraphs of the identified witnesses makes a direct allusion to the documents, the production of which is sought.
For example, paragraph 2 of the Notice to Produce requires production of:

“Any Applications to ship coal or “Shipment Contracts” in respect of RSP as referred to in paragraph 17.1 of the affidavit of Benjamin Grant Farrar affirmed 30 July 2020.”

In paragraph 17.1 of his affidavit, Mr Farrar said:

“The [Ship or Pay] Agreement operates in the following manner:
17.1 Each Authorised User is authorised to submit an Application to ship coal under the agreement from its source mines to the [Port Waratah Coal Services Limited] Terminals, which upon acceptance by [Port Waratah Coal Services Limited] becomes a Shipment Contract;”

In this paragraph, Mr Farrar does not refer to any “Applications” or “Shipment Contracts”.…

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.

Keep reading for free

Create a free CaseChat account to read Pos-Np Pty Ltd v Resource Pacific Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWSC 406
Decision Date: 21 April 2021

CaseChat Overview and Summary

The matter in Pos-Np Pty Ltd v Resource Pacific Pty Ltd involved the plaintiff, Pos-Np Pty Ltd, seeking orders from the Supreme Court of South Australia against the defendant, Resource Pacific Pty Ltd. The primary dispute centred around the interpretation and application of practice notes regarding the production of documents. Specifically, the plaintiff sought an order for the defendant to produce certain documents referenced in affidavits, a specific document, and discovery of additional documents. The defendant opposed these requests, arguing that they were not in line with the Supreme Court’s Practice Note SC Eq 11.

The legal issues that the Court had to address were whether the plaintiff's request for production of documents referred to in affidavits constituted a proper notice to produce, whether the request for a specific document was valid, and whether the request for discovery tended to subvert the operation of Practice Note SC Eq 11. The Court had to balance the plaintiff's right to access relevant documents against the defendant's right to protect sensitive information and the procedural requirements set out in the practice notes.

The Court held that the plaintiff's notice to produce was not limited to the documents mentioned in the affidavits and therefore was valid. However, the request for a specific document was not sufficiently identified, and thus, it was not enforceable. Regarding the discovery request, the Court found that it did not subvert the operation of Practice Note SC Eq 11. Consequently, the plaintiff was entitled to the orders they sought, with the exception of the request for the specific document. The Court emphasised the importance of clarity and specificity in document production requests to ensure compliance with procedural requirements and fairness to both parties.

The Court ordered Resource Pacific Pty Ltd to produce the documents referred to in the affidavits and to comply with the discovery request, while the request for the specific document was dismissed. The Court's decision underscored the need for precision in legal processes to maintain the integrity of court procedures and protect the interests of all parties involved.

Orders