Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 DISCOVERY – dispute over discoverable categories of documents – relationship between 'categories' and Federal Court Rules O 15 r 2(3).
PRACTICE AND PROCEDURE – discovery – dispute over discoverable categories of documents – relationship between 'categories' and Federal Court Rules O 15 r 2(3).
Federal Court Rules O 15 r 2
Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 cited The Compagnie Financičre et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 cited
ANTHONY AVELING v UBS CAPITAL MARKETS
AUSTRALIA HOLDINGS LIMITED NSD 858 OF 2003 LINDGREN J 14 APRIL 2005 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 858 OF 2003
BETWEEN: ANTHONY AVELING
APPLICANT
AND: UBS CAPITAL MARKETS AUSTRALIA HOLDINGS LIMITED
RESPONDENT
JUDGE: LINDGREN J
DATE OF ORDER: 14 APRIL 2005
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: The proceeding be stood over to Wednesday, 20 April 2005 at 9.30 am for the making of orders. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 858 OF 2003
BETWEEN: ANTHONY AVELING
APPLICANT
AND: UBS CAPITAL MARKETS AUSTRALIA HOLDINGS LIMITED
RESPONDENT
JUDGE: LINDGREN J
DATE: 14 APRIL 2005
PLACE: SYDNEY
REASONS FOR JUDGMENT (Discovery)
INTRODUCTION 1 The motion before the Court concerns yet another dispute over categories of documents of which discovery is to be given; cf Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 ('ACCC v Advanced Medical Institute')decided on 7 April 2005. 2 By a notice of motion filed on 18 March 2005, the applicant seeks an order that the respondent discover the documents identified in certain paragraphs of a list which the applicant served on the respondent on 29 December 2004. 3 The proceeding arises out of the employment of the applicant by the respondent in a senior executive position. In particular, it concerns the termination of his employment by the respondent with effect from 23 August 2002, and the non-payment to him of any amount by way of 'bonus' or 'incentive award' in respect of the part of the calendar year 2002 down to that date. 4 Apparently the applicant's employment commenced on 19 July 1999, and for the period down to 31 December 2001, by far the greater part of his remuneration was by way of bonus, the amount of his salary having been relatively small – though only 'relatively' by comparison with the amount of the bonus. 5 On 17 November 2004 I ordered by consent that the parties serve lists of categories of documents by 24 December 2004 and that inspection of documents take place by 4 February 2005. On 29 December 2004 the applicant served his list of categories. If there had been no dispute over the categories, the parties' discovery obligations would have been sourced in the order and the categories listed, as distinct from being sourced in a notice for discovery: ACCC v Advanced Medical Institute at [22].
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