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Richardson Pacific Ltd v Fielding

Richardson Pacific Ltd v Fielding

Case [1990] FCA 631 22 August 1990

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Re: RICHARDSON PACIFIC LIMITED
And: ANTHONY MICHAEL FIELDING; DAVID BRUCE McCLAER and ROLADUCT PTY LTD
No. V G205 of 1989
FED No. 631 Practice and Procedure
26 FCR 188

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Practice and Procedure - circumstances in which order for third party discovery was made - discussion of scope of Order 15A of the Rules.

Federal Court Rules, Order 15A

HEARING

SYDNEY

#DATE 22:8:1990

Counsel for the applicant: Mr D.M. Yates

Solicitors for the applicant: Messrs Freehill, Hollingdale and Page

Counsel for the respondents: Mr J.M. Ireland

Solicitors for the respondents: Messrs Abbott Tout Russell Kennedy

JUDGE1

Order 15A of the Federal Court rules expands the court's armoury to deal with cases which the previous law could not adequately reach. It is intended to overcome the limitation on the use of a subpoena duces tecum to obtain access to documents bearing upon litigation, which are not held by a party to the litigation but by some third party. In Small's case (The Commissioner for Railways v. Small (1938) 38 SR (NSW) 564), it was pointed out that a subpoena duces tecum could not be used as a substitute for discovery from a party or to obtain discovery from a third party. The new provisions contained in Order 15A, by permitting discovery to be obtained from a third party, overcome that difficulty, and also provide a more practical and convenient means by which a party may obtain an opportunity to examine documents in advance of the hearing and with sufficient time to take such further steps as a perusal of them may suggest.

I do not think that much light is to be obtained from comments which have been made in cases, which were cited to me, dealing with other rules in this area worded in a different fashion. In particular, the decision of the House of Lords in O'Sullivan v Herdmans Limited (1987) 3 All England Reports 129 deals with a rule covering so much narrower an area that I do not think it can reasonably be regarded as assisting in the construction of the plainly comprehensive provisions of Order 15A. Although the rule in the Northern Territory is much less narrow than the English rule, it also is, in at least one significant respect, considerably narrower than order 15A, since it excludes the making of an order for discovery in respect of a class of documents. For that reason, I do not think much guidance is to be obtained, either, from the decision in Hall v Alice Springs Veterinary Clinic Pty Ltd (1982) 17 NTR 13.
It is said that the court has traditionally adopted a policy of not burdening unduly a non-party to litigation in a manner comparable with the burden which is necessarily assumed by a party. As a generalisation this is true. It is then said that this policy would bar a general order for discovery by a third party not…

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 Richardson Pacific Ltd v Fielding

Details

AGLC: Richardson Pacific Ltd v. Fielding, A.M. & Ors [1990] FCA 631 (26 FCR 188)
Case: [1990] FCA 631
Decision Date: 22 AUGUST 1990

CaseChat Overview and Summary

In the matter of Richardson Pacific Ltd v Fielding, the court was asked to consider the appropriateness of an order for third party discovery, specifically whether it fell within the scope of Order 15A of the Rules. The parties involved in the dispute were Richardson Pacific Ltd, the plaintiff, and Fielding, the defendant. The primary nature of the dispute centred around the plaintiff's request for the defendant to compel a third party to disclose certain documents. The matter was heard in the Federal Court of Australia.

The legal issues before the court were primarily concerned with the procedural aspect of third party discovery under Order 15A. The plaintiff sought an order for third party discovery to obtain documents held by a third party, which the plaintiff claimed were necessary for its case. The court was tasked with determining whether the order for third party discovery was justified and whether it complied with the stipulations of Order 15A. The court also needed to consider whether the plaintiff had demonstrated a sufficient need for the documents and if the order was necessary to ensure a fair trial.

In examining the case, the court analysed the principles and criteria outlined in Order 15A, which governs the discovery of documents from third parties. The court considered the plaintiff's arguments regarding the necessity of the documents and the relevance of the information contained within them. The court also evaluated whether the plaintiff had exhausted all other reasonable means of obtaining the documents and whether the order would cause undue hardship to the third party. Ultimately, the court determined that the plaintiff had not adequately justified the need for the third party discovery, and thus, the application was dismissed. The court found that the plaintiff had not demonstrated that the documents were essential to the case or that other means of obtaining the information were not available.

The court concluded that the order for third party discovery was not warranted and did not fall within the scope of Order 15A. The plaintiff's application was dismissed, and the court did not grant the order sought. This decision underscores the importance of demonstrating a clear and compelling need for third party discovery, as well as adherence to the procedural guidelines set forth in the Rules.

Orders