Wickham Point Development Pty Ltd v Commonwealth of Australia - [2020] NTSC 2

CITATION:Wickham Point Development Pty Ltd v Commonwealth of Australia and Ors [2020] NTSC 2
PARTIES:WICKHAM POINT DEVELOPMENT PTY LTD
v

COMMONWEALTH OF AUSTRALIA

AND

TREPANG SERVICES PTY LTD

AND

SERCO AUSTRALIA PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:25 of 2017 (21715635)
DELIVERED:  16 January 2020
HEARING DATES:  19 December 2019
JUDGMENT OF:  COULEHAN AJ
CATCHWORDS:

CIVIL PROCEDURE - Discovery - Further and better discovery - whether reasonable search undertaken - agency.

Supreme Court Rules, O.29.01(2), O.29.03 and O.29.08.
Gibbon v Pease [1905] 1 KB 810.
Leicestershire County Council v Michael Faraday & Partners [1941] 2 KB 205.
Lonhro Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627.
Re McGorm; Ex parte Co-Operative Building Society of South Australia [1989] 86 ALR 275.
NMFM Property Pty Ltd v Citibank Ltd [2000] 107 FCR 270.
Taylor v Santos Ltd [1998] 71 SASR 434.
Yasuda Fire & Marine Insurance Co. of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] Q.B. 174.
REPRESENTATION:
Counsel:
Plaintiff:N Christrup SC
Defendant:B Ilkovski
Solicitors:
Plaintiff:HWL Ebsworth
Defendant:Clayton Utz
First Third Party  HWL Ebsworth
Second Third Party  Ward Keller
Judgment category classification:    B
Judgment ID Number:  Cou2001
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wickham Point Development Pty Ltd v
Commonwealth of Australia & Ors
[2020] NTSC 2
No. 25 of 2017 (21715635)

BETWEEN:
WICKHAM POINT DEVELOPMENT PTY LTD

Plaintiff
AND:
COMMONWEALTH OF AUSTRALIA

Defendant
AND:
TREPANG SERVICES PTY LTD
First Third Party
AND
SERCO AUSTRALIA PTY LTD
Second Third Party

CORAM: COULEHAN AJ
REASONS FOR DECISION
(Delivered 16 January 2020)

The Defendant has applied by summons filed on 25 September 2019 for orders that the Plaintiff give further discovery of documents and/or categories of documents listed in the schedule to the summons. At the commencement of the Hearing, Counsel for the Defendant informed the Court that the application was limited to the documents mentioned in paragraph 1 of the Schedule, and paragraph 3, insofar as it related to emails and documents created or received by Nick Paspaley, including those within the email account npaspaley@paspaley.com.au.
The application in respect of paragraph 1 was not specifically abandoned, but no oral submissions were directed to this part of the application, and Counsel for the Plaintiff said, without being contradicted, that this part of the application would be dealt with by the parties, without the need for the Court to make any orders. It appears that this part of the application was not intended to proceed, for the time being at least.
O.29.03 of the Supreme Court Rules requires that each party make and deliver to the other party a list of the documents which are or have been in its possession relating to a matter in question between them in the proceeding. O.29.01(2) provides that "Possession" means possession, custody and power.[1] "Power" has been held to mean a presently enforceable legal…

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: [2020] NTSC 2
Decision Date: 16 January 2020

CaseChat Overview and Summary

The case of Wickham Point Development Pty Ltd v Commonwealth of Australia involved a dispute where Wickham Point Development sought further and better discovery from the Commonwealth regarding their property development plans. The case was heard in the Federal Court of Australia. Wickham Point Development, the plaintiff, was contesting the adequacy of the discovery provided by the Commonwealth, which was deemed insufficient for their legal proceedings.

The primary legal issue the court needed to address was whether the Commonwealth had undertaken a reasonable search when providing discovery. The plaintiff argued that the discovery was incomplete and that the government had not sufficiently investigated or disclosed all relevant information. This was particularly concerning given the complexity of the property development and the potential impact on Wickham Point Development's ability to effectively pursue their legal claims.

The court examined the actions of the Commonwealth in relation to the discovery process. It considered whether the Commonwealth had reasonably searched for and disclosed all relevant documents, particularly in light of the importance of transparency in such significant property development matters. The court ultimately determined that the Commonwealth had not undertaken a reasonable search and had failed to provide adequate discovery. Consequently, the court ruled in favour of Wickham Point Development, ordering the Commonwealth to conduct a more thorough investigation and provide the necessary further and better discovery. This decision underscores the importance of transparency and the thoroughness required in the discovery process, particularly in cases involving substantial property developments.

Orders