Ward v C W McFarlane and Company

[1917] HCA 3

22 CLR 488

C. W. McFARLANE &COMPANY Practice-High Court-Discovery, Application for-Issue joined-Notice-Rules - of

the High Court 1911, Part I., Order XXIX., r. .8. MELBOURNE,

An application for discovery of documents made after issue joined must, in general, be made upon notice to the other party. APPLICATION.

In an action brought in the High Court by Harold Seymour Kellam Ward against C. W. McFarlane &Co., an application was made on behalf of the plaintiff to Griffith C.J. in Chambers ex parte, and without affidavit, for an order for discovery of documents.

22 CLR 489

Lee, for the plaintiff, in support of the application. [GRIFFITH C.J. What is the state of the cause ? Are there pleadings, and has issue been joined ?]

Yes, but it is not usual under the Victorian practice to give notice to the other side. [He cited Crispe v. Appleton 1; Weigall V. Macpherson 2; Kepple v. Thornton 3.]

GRIFFITH C.J. An order for discovery of documents is not of course. The Court is required (Order XXIX., r. 8) both to exercise its discretion as to the documents of which discovery is to be made and to form an opinion upon the necessity of the discovery. I do not see my way to do either in the absence of the defendants. do not think that the words "without any affidavit " in r. 8 mean that the application may be disposed of ex parte. Whether it may or not must depend on other considerations. The rule Audi alteram partem should be followed unless there are special reasons for disre- garding it.

Summons to be taken out. Solicitor for the plaintiff, H. M. Lee.

16 A.L.T., 265. 26 A.L.T., 250. 37 A.L.T., 95