Ward v C W McFarlane and Company

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

The central legal issue before the Court was whether an application for discovery of documents, made after issue had been joined in an action, could properly be made ex parte and without notice to the opposing party. The plaintiff's counsel argued that this was the usual practice under Victorian rules and cited several cases in support.

Griffith C.J. determined that an order for discovery of documents is not a matter of course and requires the Court to exercise its discretion regarding both the scope of discovery and its necessity. His Honour held that these discretionary considerations could not be adequately addressed in the absence of the defendant. Applying the principle of *audi alteram partem*, Griffith C.J. concluded that the rule requiring notice to the other party should be followed unless there are compelling reasons to depart from it. Consequently, the application was dismissed, and the plaintiff was directed to take out a summons.