Trampolines R Great Pty Ltd v Jalco Group Pty Ltd

[2024] NSWSC 1644

Supreme Court

New South Wales

Medium Neutral Citation:

Trampolines R Great Pty Ltd v Jalco Group Pty Ltd [2024] NSWSC 1644

Hearing dates:

18 December 2024

Date of orders:

18 December 2024

Decision date:

18 December 2024

Jurisdiction:

Common Law

Before:

Chen J

Decision:

See [51]

Catchwords:

CIVIL PROCEDURE – Discovery – Application by plaintiffs in proceedings for damages arising out of a fire at industrial premises for discovery under r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) – Whether categories identified by plaintiffs relate to a fact in issue in the proceedings – Application for discovery granted

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Environmental Planning and Assessment Regulation 2000 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

BHP Billiton Ltd v Dunning [2013] NSWCA 421

Lakatoi Universal Pty Limited v Walker [1998] NSWSC 470

National Australia Bank Ltd v Craig Trevor Smith [2012] NSWSC 1121

PPK Willoughby Pty Ltd vRoads and Maritime Services & Minister Administering the Environmental Planning and Assessment Act 1979 [2015] NSWSC 1489

The Commissioner of the Australian Federal Police v Mazzco Investments Pty Ltd & Ors. [2023] NSWSC 425

Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74

Category:

Procedural rulings

Parties:

Trampolines R Great Pty Ltd (First Plaintiff)
FO Franchising Pty Ltd (Second Plaintiff)
Teznic Pty Ltd (Third Plaintiff)
Nick’s Happy Days Amusements (Syd Ops) Pty Ltd (Fourth Plaintiff)
Jalco Group Pty Ltd (First Defendant)
Jalco Automotive Pty Ltd (Second Defendant)
Jalco Australia Pty Ltd (Third Defendant)

Representation:

Counsel:
L Edwards / J Nixon (Plaintiffs)
C P O’Neill (Defendants)

Solicitors:
United Legal (Plaintiffs)
Carter Newell Lawyers (Defendants)

File Number(s):

2023/00309543

Publication restriction:

Nil

JUDGMENT

Introduction

1. These reasons deal with a contested application for discovery in proceedings involving the recovery of damages arising out of a fire that occurred on 19 March 2021 at industrial premises in Prestons, New South Wales.

2. The plaintiffs, by notice of motion filed 11 November 2024, seek an order that the defendants give discovery, pursuant to r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’), across five categories of documents.

3. The defendants oppose the application, arguing that the categories identified by the plaintiffs do not relate to any fact in issue in the proceedings, with the result that discovery should not be ordered (defendants’ submissions at [2]).

Background

4. It is necessary to briefly sketch the background facts before dealing with the arguments of the parties. I will do this across four parts: first, a general description of the premises; secondly, an explanation of the fire that occurred on 19 March 2021; thirdly, an overview of the proceedings; and, fourthly, a summary of the claims advanced and the issues raised by the defendants in their defence.

5. The factual matters are largely drawn from the pleadings supplemented where necessary by the evidence, including the expert evidence tendered on the current application. The current version of the pleadings are: for the plaintiffs, an amended statement of claim filed on 6 December 2023 (‘ASOC’); for the defendants, a defence filed 18 March 2024.

The premises

6. The industrial premises, which are located at 238 Hoxton Park Road, Prestons (‘the premises’), incorporate four commercial buildings identified as units A, B, C and D. The layout of the units, and the site more generally, is shown in an on-site fire hydrant block plan.

7. The lessor of the units is Wincrow Pty Ltd. They were occupied as follows:

1. Unit A: Teznic Pty Ltd (‘the third plaintiff’) and it conducted a business that provided multipurpose indoor sporting and recreational activities known as “Sportsworld Liverpool”.

2. Unit B: Trampolines R Great Pty Ltd (‘the first plaintiff’) and it conducted an indoor amusement and trampoline business known as “Flip Out Prestons”.

3. Units C and D: Jalco Automotive Pty Ltd (‘the second defendant’) was the occupier of both units, and it conducted an automotive business from them.

8. The lessee of units C and D was the third defendant (Jalco Australia Pty Ltd), albeit that the second defendant occupied those units.

The fire

9. It is admitted that on 19 March 2021, at approximately 4:58am, a fire began within unit D of the premises (ASOC, par 21; defence, par 11), however beyond this simple admission very little about the fire has been admitted by the defendants in their defence.

10. The following further matters are alleged by the plaintiffs:

1. Following the attendance of Fire & Rescue NSW (‘FRNSW’), they observed “a small amount of flame” coming out of the roof of units C and D (ASOC, par 12 and 23(a)).

2. Upon gaining access to units C and D, it was observed that there was “no fire conditions in the ‘office area’” in unit C and “fire conditions within the ‘factory area’” in unit D (ASOC, par 23(b)).

3. Subsequently, “large vertical chemical fire explosions” were observed (ASOC, par 23(c)).

4. The fire spread from unit D in a north-easterly direction into unit C and then, ultimately, into unit B but not into unit A (ASOC, par 24).

5. The fire at the premises had an “approximate burn time” of 10.5 hours (ASOC, par 25).

11. It should also be noted that the plaintiffs do not expressly plead the actual or likely cause of the fire. The explanation for this no doubt rests in the expert evidence that the plaintiffs have secured – namely, a report prepared by Mr Doron Levy, a fire engineer and fire and arson investigator, dated 12 July 2023. Relevantly, Mr Levy expressed the opinion that “the fire started within the North-Eastern area of Unit D. However, the ignition source and point of origin cannot be confirmed” (report, par 6). He also expressed the opinion that the quantity of permissible liquids stored on site – evidenced by what was said to be the quantity of intermediate bulk containers on site – “exceeded the requirements of Safe Work Australia storage requirements” (report, pars 35 and 69). Further, the opinion was expressed that, if the “internal fuel load” was appropriately restricted in accordance with acceptable guidelines, then “the fire size would have been minimal and potentially manageable”, particularly with the additional fire safety measures in place (report, pars 79 and 80).

12. The defendants suggested that absent identification of the “actual cause of the fire” has been considered “historically and typically fatal” to claims such as this (defendants’ submissions at [9]). The breadth of that proposition may be doubted (see, for example, the discussion in Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 at [112]ff), but it is unnecessary to dwell upon it in an application such as this.

13. As a result of the fire, the premises were later condemned and subsequently demolished (ASOC, par 36).

The proceedings: an overview

14. There are four plaintiffs – two of which (the first and third plaintiffs) have previously been identified as the occupants of units A and B. The second plaintiff is FO Franchising Pty Ltd, who was the franchisor of the business conducted by the first plaintiff. The fourth plaintiff is Nick’s Happy Days Amusements (Syd Ops) Pty Ltd, and it carried on a business of renting for use amusement arcade modules which were located within unit B.

15. There are three defendants – one of which (the second defendant) has been previously identified as the occupant of units C and D. The third defendant (Jalco Australia Pty Ltd) was the lessee of units C and D. The first defendant (Jalco Group Pty Ltd) is the parent company of the Jalco Automotive Group, of which the second and third defendants are subsidiary members.

16. The causes of action relied upon are in negligence and nuisance. It is presently necessary only to refer to the cause of action in negligence, and against the second and third defendants (and, even then, distinguishing them only where necessary). The essential case advanced by the plaintiffs may be summarised in the following way:

1. That the part of the premises leased to the third defendant was “only permitted to be used for the purpose of carrying on the Tenant’s Business, which was defined to mean ‘Packaging and Blending and associated offices’”: ASOC, par 13(b).

2. That the second defendant, as the entity occupying and using the units, was “provided an external storage area to store flammable liquids”: ASOC, par 14.

3. That they caused combustible materials to be stored within units C and D with inadequate fire safety measures (being those prescribed by the Building Code of Australia): ASOC, pars 19, 29 and 29A.

4. That they failed to exercise reasonable care by, inter alia, failing to store the combustible materials within a designated area outside the premises; by storing a quantity of combustible material within units C and D that was contrary to acceptable standards, including Australian Standards; by failing to have appropriate fire safety measures in place, including failing to cause the installation of fire sprinklers; and that the second defendant failed to cause an Annual Fire Safety Statement to be provided to Liverpool Council and the Commissioner of FRNSW: ASOC, pars 33 and 35B.

Discovery: rule 21.2 of the UCPR

The power to order discovery

17. Rule 21.2 of the UCPR relevantly provides:

21.2 Order for discovery

(1) The court may order that party B must give discovery to party A of--

(a) documents within a class or classes specified in the order, or

(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3) Subject to subrule (2), a class of documents may be specified--

(a) by relevance to one or more facts in issue, or

(b) by description of the nature of the documents and the period within which they were brought into existence, or

(c) in such other manner as the court considers appropriate in the circumstances.

(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.

18. It is also necessary, given the arguments raised by the defendants, to refer to the definition of “relevant to a fact in issue”, contained within r 21.1(2) of the UCPR – which provides:

For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

Further principles and discussion

19. Thus, drawing upon the above, the position may be summarised as follows. Before an order for discovery is made, the Court must be satisfied that the documents of which discovery is sought are relevant to a fact in issue: rr 21.2(1) and (4) of the UCPR. A document is taken to be relevant to a fact in issue if it could, or contains material that could, “rationally affect the assessment of the probability of the existence of that fact…regardless of whether the document … would be admissible in evidence”: r 21.1(2).

20. In The Commissioner of the Australian Federal Police v Mazzco Investments Pty Ltd & Ors. [2023] NSWSC 425 at [34]-[36], I summarised some of the organising principles, relevant to an application of this kind, as follows:

34.   In Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 at [19], Bellew J set out a convenient summary of the principles which apply to an order for discovery. Two are of present relevance. The first is that as discovery cannot be ordered other than in connection with documents that are relevant to a fact in issue, it is “necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue” (at [19](1)). The second was that “the facts in issue will be primarily identified by an examination of the pleadings” (at [19](2)).

35. Although r 21.2 contains no requirement for a party seeking an order for discovery to demonstrate that an order is “necessary” – the position may be contrasted to an application for the administration of interrogatories where there is such a requirement: see r 22.1(4) of the UCPR – the parties nevertheless argued the application, at least partly, by reference to that concept. Given the order sought by the applicant is ultimately discretionary, a consideration of necessity is not unhelpful, in my view.

36.   The concept of necessity focusses upon the need for disclosure: “the accepted test of necessity is what is reasonably necessary for the disposing fairly of the matter or necessary in the interests of a fair trial”: Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 at [23] (‘Gerard Cassegrain’); Chong v Nguyen [2005] NSWSC 588 at [12]-[16]. Necessity does not mean essential, but is to be understood as referring to what was reasonably required for the achievement of a fair trial: Gerard Cassegrain at [22]; Leighton International v Hodges [2012] NSWSC 458 at [21]-[22].

21. It is also necessary to say something about the need for the content of a document to be relevant to a fact in issue, and the approach to take when addressing that question. It has long been established that, when determining the permissible scope of discovery, documents that may be relevant to a fact in issue should not be unduly restricted, and that “the Court must bear in mind that the parties are entitled to build up an evidentiary mosaic”: Lakatoi Universal Pty Limited v Walker [1998] NSWSC 470 at p 19 (‘Lakatoi Universal’). The short point is that the Court should not be astute to find irrelevance at an early stage of proceedings. Although this decision was made in the context of applications to set aside subpoenas for production, the statements of principle have been accepted as informing the relevant criteria in applications for discovery: see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [43]. Further, these background principles have been widely accepted as directly applicable to applications for discovery under Part 21 of the UCPR, and that a “restrictive approach is not appropriate”: see, for example, National Australia Bank Ltd v Craig Trevor Smith [2012] NSWSC 1121 at [16]; PPK Willoughby Pty Ltd vRoads and Maritime Services & Minister Administering the Environmental Planning and Assessment Act 1979 [2015] NSWSC 1489 at [27].

The application for discovery

Introduction

22. The plaintiffs seek discovery of the following categories of documents:

1. The building’s Fire Safety Schedule for units C & D.

2. The building’s Fire Safety Statement for units C & D.

3. Fire safety plans prepared for units C & D in effect at the time of the fire on 19 March 2021.

4. Work process guides, or task guides, maintained by the defendants concerning the tasks undertaken in regard to the storage of chemicals, alcohols, oils (synthetic or otherwise), flammable gases or flammable liquids within units C & D in effect at the time of the fire on 19 March 2021.

5. Documents including (but not limited to) records and reports in connection with the investigation into the cause and damage of the fire on 19 March 2021.

Discussion and consideration

23. As I have indicated, the defendants oppose giving discovery in connection with each category identified by the plaintiffs, advancing specific complaints as well as making the overarching submission that none of the categories of documents or the documents themselves are relevant to a fact in issue. I will deal with the respective arguments in what follows.

The fire safety schedules for units C and D

24. The argument advanced by the plaintiffs is that a fire safety schedule is a document that is required to be prepared and issued pursuant to the Environmental Planning and Assessment Regulation 2000 (NSW) (the ‘EPAR’) which contains details of the fire safety measures currently implemented, or proposed to be implemented, in the building (cll 167(2)(c) and 168(3)(b) of the EPAR), and that this category of documents is directly relevant to their claim (plaintiffs’ submissions at [31]-[34]): in particular, the plaintiffs point out that these matters are directly relevant to the matters alleged in ASOC, par 33.

25. The defendants submit that documents of this kind are not relevant to a fact in issue, arguing that they are not – nor alleged to be – any of the persons who would be required to issue a fire safety schedule within cl 168(1) of the EPAR and, separately, they argue that the possession, or lack of possession, of such a document (or documents) is simply not relevant to any cause of action against them (defendants’ submissions at [15]).

26. The fact that the defendants are not within the category of those who would be required to issue a fire safety schedule is not, in my view, to the point. Nor do I accept that the possession, or lack of possession, of such a schedule is irrelevant to any cause of action against them, as the defendants categorically asserted. Assuming, for the purposes of this argument, the defendants were in possession of a fire safety schedule specifying the fire safety measures “that should be implemented”, within cl 168 of the EPAR for units C and D then, depending upon what is contained within it, particularly in relation to the fire safety measures, such a document could well turn out to be significant, potentially highly significant. Further, and overlapping with this assumed scenario, the content of the fire safety schedule may also be relevant, in the required sense, to the identification of the risk of harm and what reasonable precautions were required.

27. As the plaintiffs point out, there is a term of the lease (cl 11.4) that, relevantly, provided that the tenant (relevantly here, the third defendant) was required, at its cost, to comply with “all Laws, Standards and Requirements in relation to sprinklers, fire alarms and fire prevention in respect of the Premises. In particular, the Tenant must obtain at its cost and lodge with Council all annual fire safety certificates…” (plaintiff’s reply submissions at [11]).

28. The defendants submit that the “problem” with the argument is that the clause refers to fire safety certificates, not a fire safety schedule. That is only partly correct. The second part of the clause, quoted above, certainly requires the tenant to secure, and lodge with council, all annual fire safety certificates – however, the introductory words, and indeed those that appear after the words “fire safety certificates”, are not so confined. In any event, I consider this to be something of a false issue. Whether there is, or is not, a contractual stipulation is not in any way decisive on the question as to whether discovering such a document in the present case is relevant in the sense required. In my view, for the reasons given, I consider there to be that nexus, particularly given the approach mandated the authorities discussed in [21], above.

The fire safety statements for units C and D

29. The argument advanced by the plaintiffs is that, pursuant to cl 175 of the EPAR, an annual fire safety statement is required to be issued by or on behalf of the owner of a building, in effect, specifying the essential fire safety measures in place, as assessed by an accredited practitioner (fire safety) to the relevant standard, such that the content of such a document would, self-evidently, identify the essential fire safety measures in place for the units and is thus directly relevant to the matters alleged in ASOC, par 33 (plaintiffs’ submissions at [35]-[37]).

30. The defendants submit that none of the defendants “are owners” of units C and D which of itself is disentitling and the position is not otherwise in connection with the terms of the lease entered between the third defendant and Wincrow Pty Ltd (defendants’ submissions at [16]-[20]).

29. In my view, the fact that the obligation cast by cl 175 of the EPAR is for an annual fire safety statement to issue by or on behalf of the owner of the building is not decisive as to whether discovery of that class of document is relevant in the required sense and, thus, whether discovery should be ordered. Consistent with my finding in relation to the fire safety schedules category, so too here, I consider there to be that nexus – again particularly given the approach mandated by the authorities discussed in [21], above.

30. The defendants submitted that, in fact, they do not have any such documents and pointed out that this was communicated to the solicitors for the plaintiffs in a letter dated 4 December 2024. The plaintiffs submitted, putting to one side the recency with which that was communicated, that does not disentitle them to an order for discovery: it merely means that there will be nothing to discover, and the plaintiffs can secure some forensic benefit from this. Further, in any event, what is contained in the letter from the solicitors for the defendants only deals with “2020 or 2021”, not more generally. In my view, none of the matters raised by the defendants undercut the conclusion that I have reached.

The fire safety plans for units C and D in force at the time of the fire

33. The argument advanced by the plaintiffs is that “fire safety plans” for units C and D are also directly relevant to what is alleged in ASOC, par 33 – in particular, whether the second defendant had devised, installed and maintained a system of risk identification relating to fire hazards is of central importance in the proceedings (plaintiffs’ submissions at [42]).

34. The defendants’ response, which is largely one of complaint, is that the plaintiffs “are yet to inform the defendants of what a fire safety plan is”, and that because they have not done so, it was said to be impossible “to know whether a document is relevant to a fact in issue if it is unclear as to what it is” (defendants’ submissions at [21]). The defendants thus argue that because neither the pleading, nor the EPAR, “make plain what the document is, what purpose it serves, or why it should exist in the possession of the defendants”, discovery should not be ordered (defendants’ submissions at [22]).

35. In my view, there is no substance to the defendants’ complaint. The documents that are sought by the category are, I consider, clear: fire safety plans. They are not sought to be defined by reference to any external standard, nor the EPAR. It is merely any document that is a fire safety plan. Separately, this is what was communicated to the solicitors for the defendants in a letter dated 8 October 2024: there it was said that the description “fire safety plan” was “not intended to refer to the style adopted for a document… but is intended to capture a class of documents which contain plans in respect of fire safety for units C & D”. This matter only reinforces why I do not accept the defendants’ complaint.

36. There is a further matter which should be noted. The defendants have, as it happens, advised the plaintiffs that they are “not aware of any document” which would meet this description: see the letter from the solicitors for the defendants dated 2 October 2024, p 2. Not only did this letter show that, in practical terms, the documents sought by the category are clear in the sense of being sufficiently identified and identifiable, but it also raises a question about the purpose underlying the approach taken by the defendants in connection with the discovery of this category of documents.

37. I consider that this category of documents is clearly and directly relevant in the required sense.

“Work process guides” for the tasks undertaken in relation to the storage of chemicals in force at the time of the fire

38. The argument advanced by the plaintiffs is that “work process guides” in relation to the storage of chemicals within the units is also directly relevant to what is alleged in ASOC, par 33 – in particular, whether the second defendant had devised, installed and maintained an environment compatible with safely storing the combustible materials within the units (plaintiffs’ submissions at [42]).

39. The defendants, whilst acknowledging that in effect what are sought are documents that may broadly be described as “policies and procedures for the handling of flammable materials”, nevertheless advanced a number of complaints: first, there “is no timeframe for when the guides are sought” and, secondly, there is “no allegation as to what they should consist of, or contain, for the purposes of knowing what is being sought” (defendants’ submissions at [23](a) and (b)). The defendants also complain that the plaintiffs are in substance making “a classic trawl for material that is not attendant to any specific issue in the present case” and, furthermore, that in some way the plaintiffs are attempting to “plug [a] gap in case theory with a perceived breach” which is “not the purpose of discovery” (defendants’ submissions at [24]-[25]).

40. Whilst, generally speaking, limiting the period provides a reasonable restraint on the category, the plaintiffs, at least in correspondence, sought to do this: in the letter from the solicitors for the defendants dated 2 October 2024, it was noted that the plaintiffs sought discovery for the period “19 March 2019 to 19 March 2021”. The defendants, in that letter, suggested, however, a refinement being discovery of documents “relevant to the state of affairs which existed at the time of the fire, 19 March 2021”. To the extent there is a difference between the period suggested by the plaintiffs when compared to that suggested by the defendants, it is difficult to accept that it is of any particular moment; if anything, at least arguably, the defendants’ formulation is wider than the plaintiffs. Putting that last discrete issue to one side, despite the correspondence that had passed between the solicitors for the parties, it was suggested in submissions that no timeframe was placed upon this category of discovery. Based upon this letter, that is simply not so. The defendants’ suggestion that there is “no allegation as to what they should consist of” etc., is, I consider, not to the point.

41. The question is whether the guides that the plaintiffs seek “concerning the tasks undertaken in regard to the storage of chemicals” is relevant in the required sense. In my view, they clearly are; indeed, given the nature of the complaints made by the defendants, it does not appear to have been seriously suggested otherwise. At a minimum, documents of this kind bear upon the nature and quantity of what the defendants accept would be “flammable materials”; the way that those materials were to be handled and stored; and the existence of the risk of harm and the reasonable precautions that may be required to name just some of the matters.

Documents in connection with the investigation into the cause of, and damage sustained in, the fire

42. The argument advanced by the plaintiffs is that “records and reports in connection with the investigation into the cause of the fire”, and any consequential damage, are self-evidently connected to an issue in dispute in the proceedings – namely, the cause of the fire, and whether the defendants exercised reasonable care in the operation of the business from the premises (plaintiffs’ submissions at [44]).

43. The defendants, somewhat boldly, assert that there “is not a fact presently in issue to which those documents could relate” (defendants’ submissions at [26]), asserting that the plaintiffs do not presently advance matters “such as the cause and origin of the fire” (defendants’ submissions at [27]). I do not accept the defendants’ submission relating to the cause and origin of the fire. That is a matter that is squarely dealt with in the expert report from Mr Levy and although it is true that he was, at that point and on the material that he had, unable to express an opinion on how the fire started or the precise origin, he did express the opinion that the origin of the fire was the north-east area of unit D – based, at a minimum, upon alarm activation reports as well as burn patterns (report, pars 60-61). It bears repeating, given the submission made by the defendants, that it is one thing for an expert fire engineer to say that, on the evidence then available, he was unable to identify precisely the cause of the fire, but it is quite different to argue, as the defendants have, that that matter is “not in issue”. The plaintiffs are entitled to continue to investigate this issue in order to ascertain whether, in fact, there is further material available that may permit their expert to express an opinion on these matters or otherwise address the possibilities given what is known. Undoubtedly, the defendants are doing the same. The plaintiffs are “entitled to build up an evidentiary mosaic” in connection with this issue: Lakatoi Universal at p 19. The logic of the submissions of the defendants, which I am unable to accept, appears to be that the plaintiffs would be forever denied the prospect of dealing with this matter at any future point utilising, and aided by, the Court’s processes. The fact remains, I consider, that, irrespective of the exact footing as to how the case is put – whether it is one of cause, contribution or acceleration or a combination – documents of this kind are clearly relevant.

44. Separately, the defendants raised a number of other arguments: the category was, given the use of the phrase “but not limited to”, impermissibly broad and that the category was “a trawl for documents and should not be permitted” (defendants’ submissions at [26] and [29]).

45. I do not accept that the contentious phrase creates the problem suggested by the defendants, at least on its own; rather, the difficulty with the breadth of this category relates, in my view, to the use of the relational phrase “in connection with”. Notwithstanding, it is clear that the plaintiffs seek, in substance, investigations undertaken following the fire. Indeed, during submissions, the category was confined to: all investigations into the cause and damage of the fire on 19 March 2021. The suggestion that the category involves “a trawl for documents” is, I consider, without substance.

46. The defendants argued that this would clearly encompass investigations undertaken by experts retained by their solicitors. That may be so, but r 21.3(2)(d) clearly makes provision for how to deal with that scenario, if it arises. I do not accept, as was submitted, that the likelihood that there were reports prepared by experts is a reason to decline to order discovery of this category of documents.

47. The defendants also complained that, in respect of all categories, they should be restricted in time. The plaintiffs submitted, and I accept, that “any time” would be relevant, and not unreasonable and that is particularly so given the period of the lease (being 10 July 2018-9 July 2023).

48. To sum up. Across each of the proposed categories of discovery, I consider, for the reasons given, that the documents produced are relevant to a fact in issue in the sense required by r 21.1(2) of the UCPR. The approach that I have taken has been informed by the authorities to which I have referred, authorities which have emphasised the importance, particularly at early stages of proceedings, in avoiding an unduly restrictive approach and not being astute to find irrelevance. Further, I have considered the overriding purpose (ss 56(1) and (2) of the Civil Procedure Act 2005 (NSW) (‘the CPA’)) when exercising the power as well as the objects of case management (s 57(1) of the CPA). The order that I propose to make facilitates, in particular, the just determination of the proceedings, their efficient and timely and cost affordable disposal and thus the interests of justice and the elimination of delay (ss 58-60 of the CPA).

49. In relation to the matters last raised, I observe that the dispute between the parties concerning discovery, or production of documents more generally, has extended well over a year (some of the correspondence dates from May 2023) and generated a considerable amount of correspondence between the solicitors. The dispute about discovery also appears to have had a significant impact on the progress of the claim (or the lack thereof), and it has involved multiple appearances before the Common Law Registrar. The practical effect of the dispute has been that the matter has not meaningfully progressed, notwithstanding proceedings were commenced in September 2023.

Discretionary matters

50. No specific discretionary matters were raised by the defendants that were suggested to tell against the orders sought. In my view, none arise.

Orders

51. For the above reasons, I make the following orders:

1. Order, pursuant to r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW), that the defendants, within 28 days of the making of these orders, give the plaintiffs discovery of the following documents or categories of documents:

1. The building’s Fire Safety Schedule for units C & D;

2. The building’s Fire Safety Statement for units C & D;

3. Fire safety plans prepared for units C & D in effect at the time of the fire on 19 March 2021;

4. Work process guides, or task guides, maintained by the defendants concerning the tasks undertaken in regard to the storage of chemicals, alcohols, oils (synthetic or otherwise), flammable gases or flammable liquids within units C & D in effect at the time of the fire on 19 March 2021; and

5. all investigations into the cause and damage of the fire on 19 March 2021.

2. Order that the costs of and incidental to the plaintiffs’ notice of motion filed 11 November 2024 be costs in the cause.

3. List the matter for status review before Chen J on 14 March 2025.

4. Vacate the listing before the Registrar on 17 February 2025.

5. Order the defendants, if so advised, to file and serve by 3 February 2025, 4pm any notice of motion and affidavit in support seeking to strike out all or some of the plaintiffs’ pleading.

6. Order that any notice of motion filed in accordance with the above order is listed for directions only before Chen J on 14 March 2025.

7. Order the plaintiffs to serve any evidence in reply to any notice of motion filed by the defendants by 3 March 2025, 4pm.

8. Order the defendants to file and serve an outline of submissions in relation to any notice of motion filed seeking to strike out the pleading by 3 February 2025, 4pm with such submissions to be limited to no more than 4 pages. Those submissions are not to contain any footnotes.

9. Order that the plaintiffs file and serve any submissions in reply by 3 March 2025, 4pm with such submissions to be limited to no more than 4 pages. Those submissions are not to contain any footnotes.

10. Liberty to apply on 48 hours’ notice.

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Decision last updated: 19 December 2024