SkyMesh Pty Ltd v Ipstar Australia Pty Ltd
[2012] NSWSC 696
•22 June 2012
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 - defendantRepresentation: 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 even indirectly have any relevance to the ultimate issues before the Court. The scope and extent of discovery especially when it occurs before evidence has often had the tendency to delay the parties and the Court from clearly and hence effectively confronting the real issues for trial, and thereby in turn delay the cost effective case management of proceedings.
Delay translates ultimately into cost with the filtering of often large volumes of materials much of which will never play a part in the ultimate forensic confrontation. On many occasions curiosity has been the culprit in perpetuating unnecessary and wasteful interlocutory confrontation over at best what are often tangential materials.
If a party is forced promptly to apply its mind not only what its real case is but how to prove it, this should have the benefit of not only exposing the strengths of the case but also its weaknesses. The unreliable or uncertain witness is earlier exposed as are documents which help or hinder the case on either side. This ought to cause practitioners to purposefully and immediately deal with core issues where if needs be case management can be more constructive. Hopefully this will also cause a timely appraisal of such critical notions as onus with a realistic assessment of prospects.
None of this is to stifle or dilute the need in certain cases to oblige a party to disclose its information before evidence is filed. It is undesirable however to attempt to formulate with any precision what would demand such approach. There needs to be exposed exceptional circumstances necessitating an order. To attempt to articulate what will qualify as such would likely fetter rather than advance what should be a flexible approach consistent with the underlying purpose and objectives of the Practice Note and the dictates of justice. As Bergin CJ in Eq observed in Danihel v Manning [2012] NSWSC 556 at [14].
Since Practice Note SC Eq 11 Disclosure in the Equity Division commenced on 26 March 2012 there have been some applications relating to claims of "exceptional circumstances": Prowse v Rocklands Richfield [2012] NSWSC 448; Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458. In this particular category of case, where there is a claim that a deceased lacked testamentary capacity, one can envisage a necessity to obtain documents for the purpose of instructing a geriatrician to assist in deciding whether an application should be made. It may be that in cases where parties are concerned that a person lacked testamentary capacity at the time a will was made, they would seek the expert opinion before commencing proceedings by way of preliminary discovery. Practice Note SC Eq 11 does not affect that process for preliminary discovery.
I invited counsel for the plaintiff in this matter to identify what if any exceptional circumstances might here exist. The example given was the partial admission by the defendant in its commercial list response that there were defects in certain of the goods. It was said that access to the defendant's documents now might have the effect of reducing the issues for trial. I do not regard that as however providing an example of an exceptional circumstance. The plaintiff bears the onus to precisely articulate the type and incidence of the defects and ultimately quantify whatever loss is said to have been occasioned by them. The fact that some concession has been made by the defendant may in due course cause a commercial resolution or at the very least go to the length of any proposed trial but I do not regard it as requiring disclosure at this stage.
In all the circumstances I consider it is appropriate to vacate the orders previously made by consent in relation to discovery. I also propose to make orders for the filing of evidence so as to have the matter progress as efficiently as can be.
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Decision last updated: 22 June 2012
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