Slater v Smith

In Slater v Smith, the applicant, Matthew Slater, sought several orders, including that the opposite parties be designated as dux litis and various discovery orders in relation to documents produced by Ecosol Pty Ltd. The case involved a complex web of claims and counterclaims, with Slater being both the applicant in the action and the respondent in the cross-action. The respondents, including Ecosol and its principal, argued against Slater’s requests for discovery and the designation of dux litis.

The court addressed several key legal issues. Firstly, it considered the appropriate party to be designated as dux litis, a decision that involved weighing various relevant circumstances. Secondly, the court examined the scope of discovery, particularly concerning documents in the custody of Janic Consulting Pty Ltd, which had been retained by Ecosol to negotiate the sale of its business. The court also assessed whether Slater was entitled to specific discovery of documents related to negotiations for the sale of Ecosol's business and potential alternative disposals.

In its reasoning, the court determined that designating the opposite parties as dux litis was not warranted given the circumstances of the case. Regarding discovery, the court found that documents in the custody of Janic Consulting, retained by Ecosol, were subject to the power of discovery. The court granted specific discovery orders for documents produced in October 2018 and those related to the sale negotiations, while denying the request for documents concerning proactive steps taken by Ecosol to dispose of its business from August 2008 onwards. The court further ruled that if Ecosol had to pay Janic Consulting or its principal to produce documents for compliance with the discovery orders, Ecosol could recover those reasonable costs from Slater if an order was made for Slater to pay Ecosol's costs of action.

The final orders included specific discovery orders verified on oath for certain documents, with provisions for cost recovery if necessary. Slater’s request for an order for discovery of records of proactive steps taken by Ecosol from August 2008 onwards was denied as Slater had not established a sufficient basis for such an order.