GLOWTIDE PTY LIMITED v OCEANIC LIFE LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY P and CLARKE JA 2 December 1996 [1996] NSWCA 219 Mahoney P. This matter comes before the Court in relation to an application for leave to appeal which is listed to be heard next Monday. The leave to appeal application is a matter relating to an order which, it is said, Mr Justice Bainton made in respect of discovery of documents in the course of an application made to him on 8 November 1996. In the course of making that order, his Honour considered also the provision of documents by Mr Rushton's client in a context which I have during argument described (inaccurately but I think sufficiently clearly) as being pleading. The matter is before this Court today because the order that the judge made for discovery would involve, if it were complied with literally, that the documents be discovered before the matter comes before this Court for determination on Monday next. It seems sensible that some kind of extension be granted, some kind of stay be available of that order to ensure that the application for leave to appeal is not frustrated and rendered pointless. However, it is said that the stay of the order fordiscovery (as I shall describe it) should be coupled with an order effectively granting to Mr Rushton's client an extension of time to comply with the pleading order that has been made by the judge. Mr Wilson has indicated that his client opposed that, and he has now instructions from his Melbourne principles not to agree to it. It appears to me to be eminently sensible for orders to be made that if the grant of a stay in respect of the order for discovery be made, there should be also an order effectively making available to Mr Rushton's client the opportunity to file its documents after the discovery matter has been determined. Mr Rushton's clients contend that the discovery documents will be, or may be, relevant to what is put in the documents to be prepared for the pleading matter. Mr Wilson contested that is so. That is a matter which this Court cannot determine at this stage. In the circumstances, I think it is appropriate that the Court grant a stay of the order for discovery up to and including Monday next or further order and that it grant that stay upon condition that those Mr Wilson represents do not oppose an application to be subsequently made to the judge for an extension of time to lodge, as I have described it, the pleading which Mr Rushton's clients will lodge in due course. I would propose therefore that the order for stay in relation to the discovery order of Mr Justice Bainton be made upon that condition. Before parting with the matter I would say this. This is a matter which, in my opinion, ought to have been settled between the solicitors or the parties to the matter without the necessity of coming before this Court on an application of this kind. I am conscious that I do not know all of the details of the matter. But one would expect, in the context of an application pending before this Court, that all necessary interlocutory matters would have been dealt with by the parties and 2 UNREPORTED JUDGMENTS that an application of the present kind would not have been necessary. However, the orders that I propose are those which I have indicated. Clarke JA. I agree. 5 Mahoney P. The orders of the Court are therefore as I have indicated and the costs of today will be costs in the application on Monday. Orders accordingly.