SkyMesh Pty Ltd v Ipstar Australia Pty Ltd - [2012] NSWSC 696

Supreme Court

New South Wales

Medium Neutral Citation: SkyMesh Pty Ltd v Ipstar Australia Pty Ltd [2012] NSWSC 696
Hearing dates: 19 June 2012
Decision date: 22 June 2012
Jurisdiction: Equity Division
Before: Sackar J
Decision:
See paragraph 11

Catchwords: Consent orders - discovery - Practice Note SC Eq 11 - disclosure - exceptional circumstances required - relevant partial admission insufficient - orders vacated
Legislation Cited: Practice Note No. SC Eq 11
Cases Cited: Danihel v Manning [2012] NSWSC 556
Category: Interlocutory applications
Parties: SkyMesh Pty Ltd - plaintiff
Ipstar Australia Pty Ltd - defendant
Representation: Counsel:
A C Casselden - plaintiff
N M Bender - defendant
Solicitors:
Herbert Geer - plaintiff
DLA Piper Australia - defendant

File Number(s): 2011/380786

Judgment

Background

The plaintiff commenced proceedings by summons on 16 December 2011. It alleges that certain goods namely broadband satellite products and services acquired from the defendant had a number of defects which made them unfit for the purpose for which they were sold. The goods were installed in various locations around Australia by a third party, Skybridge Pty Limited which is not a party to the proceedings.

On the first return date of the summons orders by consent were made which provided inter alia for the parties to exchange categories of documents by 24 February, verified lists of documents by 30 March and inspection by 13 April.

The motion before the court is that the defendant now comply with the consent orders. The defendant on the other hand seeks a vacation of the orders and further seeks to invoke Practice Note S.C. Eq 11. The Practice Note was introduced on 23 March 2012 and applies to "new and existing" proceedings in the Equity Division, except those in the Commercial Arbitration List. It in effect obliges parties except where there are "exceptional circumstances" to file their evidence before any disclosure is ordered.

Subsequent to the consent orders being made the solicitors for the defendant on or about 8 March having carefully reviewed the plaintiff's pleading engaged in correspondence with the plaintiff for the purpose of clarifying and/or refining aspects of the pleading. The defendant expressed its concerns and requested the matter not progress until pleading matters had been resolved.

On 19 April the plaintiff responded, it is alleged only partially to the defendant's concerns, but agreed that discovery could not proceed and agreed to postpone a directions hearing set for 20 April until 8 June.

During May however the plaintiff agitated for discovery and the parties then engaged in further correspondence about categories for discovery. A measure of agreement was reached but there were still disputes about a number of proposed categories.

A Change in Practice

The purpose and object of the Practice Note is an attempt to streamline the disclosure process and in changing the previous practice it is a recognition albeit, long overdue that a great deal of material was often discovered by parties prior to them filing their evidence which did not directly and in many cases…

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.

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Details

Case: [2012] NSWSC 696
Decision Date: 22 June 2012

CaseChat Overview and Summary

In this matter, SkyMesh Pty Ltd brought proceedings against Ipstar Australia Pty Ltd, seeking discovery and disclosure of certain documents. The dispute originated from a dispute concerning the ownership and licensing of intellectual property. The case was heard in the Supreme Court of New South Wales, Equity Division. The central issue the court had to address was whether the defendant's partial admission of certain facts was sufficient to prevent the plaintiff from pursuing further discovery and disclosure of additional documents. Specifically, the court needed to determine whether the partial admission by the defendant met the criteria for exceptional circumstances as outlined in Practice Note SC Eq 11.

The court found that the partial admission by the defendant did not constitute exceptional circumstances as required by the Practice Note. The Practice Note stipulates that a party seeking to limit discovery must demonstrate exceptional circumstances, which are not present in this case. The partial admission alone was not sufficient to prevent the plaintiff from pursuing further discovery and disclosure. The court emphasised that the plaintiff was entitled to full disclosure of all relevant documents to ensure a fair trial. Consequently, the consent orders that had been previously entered into, which limited the discovery and disclosure based on the defendant's partial admission, were vacated. The court directed the parties to proceed with full discovery and disclosure in accordance with the rules of court.

The orders of the court resulted in the vacating of the consent orders that had limited the scope of discovery and disclosure. The parties were directed to proceed with full discovery and disclosure, ensuring that all relevant documents were made available to both parties. The court's decision underscored the importance of adhering to the requirements of exceptional circumstances when seeking to limit discovery and disclosure in litigation. This ruling serves as a reminder to parties that partial admissions alone do not satisfy the stringent criteria for exceptional circumstances as outlined in the relevant practice note.

Orders