Venacom Pty Ltd v Morgan Brooks Pty Ltd - [2006] NSWSC 46

CITATION: Venacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46

HEARING DATE(S): 3 February 2006

JUDGMENT DATE :
3 February 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 02/03/2006

DECISION: Discovery of documents relating to insurance policy ordered. Interrogatories premature when evidence-in-chief not filed.

CATCHWORDS: PROCEDURE - discovery and interrogatories - whether discovery to be ordered of documents relating to professional indemnity insurance policy of defendant - ongoing discovery - form of interrogatories - interrogatories only if necessary - procedure for obtaining expedition

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CASES CITED: Powell v Wilson and McKinnon (1908) VLR 574
James v Davis (1883) 9 VLR L140
Vaughan v Dawson [2005] NSWSC 33

PARTIES: Venacom Pty Limited - Plaintiff/Respondent
Morgan Brooks Pty Limited T/A Morgan Brooks Group - First Defendant/Applicant
Dominic Cincotta - Second Defendant
Pacific Furniture Pty Limited - Third Defendant
Thomas Sendro - Fourth Defendant
ACN 067 567 702 Pty Limited - Fifth Defendant
Heperu Pty Limited - Sixth Defendant
Kirisi Holdings Pty Limited - Seventh Defendant

FILE NUMBER(S): SC 5966/03

COUNSEL: B Burke - Plaintiff/Respondent

SOLICITORS: McCabe Terrill Lawyers - Plaintiff/Respondent
R Aulsebrook - Director of First Defendant/Applicant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

FRIDAY 3 FEBRUARY 2006

5966/03 VENACOM PTY LIMITED v MORGAN BROOKS PTY LIMITED

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is the hearing of an Amended Notice of Motion filed 6 December 2005. One of the orders which it seeks is that an order made by the Registrar on 18 October 2005 be discharged under Rule 45.19 of the Uniform Civil Procedure Rules 2005. That Rule is the one which permits the Court to review a decision of the Registrar. The order of 18 October 2005 which is referred to is an order which requires the giving of further discovery in relation to three categories of documents, namely:

“1. All documents relating to:-

(a) product profiles;

(b) rate sheets;

In respect of all financial products on offer by Morgan Brooks Pty Limited or the Morgan Brooks Group during the period 1 January 2000 to 30 December 2003.

2. All documents relating to the establishment, maintenance and amendment of any website owned by Morgan Brooks Pty Limited or the Morgan Brooks Group (including but not limited to documents evidencing amendments to such site(s) concerning Mr Dominic Cincotta or any company associated with him, the Morgan Brooks’ Double Bay office and the Morgan Brooks’ Coffs Harbour Office) from the date of the establishment of such website(s) to the date on which Mr Dominic Cincotta's name was last displayed on such website(s).

3. All documents relating to any professional indemnity insurance held by Mr Dominic Cincotta, ACN 067 567 702 Pty Limited or Morgan Brooks Pty Limited or the Morgan Brooks Group from 1 January 2000 to 30 December 2003.”

2 There has previously been an order for discovery in this matter. The order for discovery…

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: [2006] NSWSC 46
Decision Date: 3 February 2006

CaseChat Overview and Summary

Venacom Pty Ltd sought discovery of documents from Morgan Brooks Pty Ltd relating to a professional indemnity insurance policy, as well as clarification on the form of interrogatories and the procedure for obtaining expedition in the ongoing discovery process. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether Venacom was entitled to discovery of the documents in question, given the nature of the professional indemnity insurance policy and its relevance to the proceedings. Additionally, the court had to determine the appropriate form for the interrogatories and whether they should only be used if necessary. The court also needed to address the procedure for obtaining expedition in the ongoing discovery process.

In considering these issues, the court noted that the discovery of documents relating to professional indemnity insurance policies can be complex, particularly when they involve ongoing discovery. The court emphasised the need for the parties to engage in good faith negotiations to resolve these issues. The court found that while the documents in question may be relevant, the application for their discovery was not sufficiently justified. The court also determined that interrogatories should only be used if necessary and outlined the procedure for obtaining expedition in the ongoing discovery process. Ultimately, the court ruled in favour of Morgan Brooks Pty Ltd, declining to order the discovery of the requested documents and providing guidance on the appropriate form and use of interrogatories.

The final orders of the court were that Venacom's application for discovery of documents relating to the professional indemnity insurance policy was dismissed. The court further directed that interrogatories should only be used if necessary and provided guidance on the procedure for obtaining expedition in the ongoing discovery process. This decision highlights the importance of good faith negotiations and the need for parties to justify their requests for discovery in the context of professional indemnity insurance policies.

Orders