Kimberley Securities v Byrne [2008] NSWSC 1214

New South Wales Supreme Court

CITATION : Kimberley Securities v Byrne [2008] NSWSC 1214

HEARING DATE(S) : 7 November 2008 JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 7 November 2008

DECISION : See paragraph [11] of the judgment.

CATCHWORDS : DISCOVERY - power of court to make order for discovery against non-party in existing proceedings - Uniform Civil Procedure Rules, Part 5, r 5.4.

LEGISLATION CITED : Uniform Civil Procedure Rules

CASES CITED : Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASCA 123

Kimberley Securities Limited (Plaintiff) PARTIES : Byrne Lewis Group Pty Limited (First Defendant) Kilmory Estate Pty Limited (Second Defendant)

FILE NUMBER(S) : SC 55048/08

COUNSEL : F G Kalyk (Plaintiff) F F Salama (First Defendant)

SOLICITORS : Osborne & Associates (Plaintiff) Marsdens (First Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

7 November 2008 ex tempore (revised – 10 November 2008)

55048/08 KIMBERLEY SECURITIES v BYRNE TECHNOLOGY JUDGMENT - re application for discovery

1 HIS HONOUR: This is an application by the plaintiff for an order that a non-party to these proceedings, Byrne Lewis Constructions Pty Ltd, give discovery of documents within categories defined in paragraph 1 of the plaintiff's notice of motion filed on 27 October 2008. The only issue is as to the Court's power to make such an order. It is common ground that if the Court does have such power then discovery within those categories ought be ordered. 2 The point arises because the plaintiff, having obtained an order for discovery against the first defendant, Byrne Lewis Group Pty Ltd, was answered by a list of documents that said, as to certain documents, that they were believed to be in the possession of Byrne Lewis Constructions. It is apparent that Byrne Lewis Group and Byrne Lewis Constructions are related companies, having the same registered office, same officers and shareholders, and same place of business. 3 The application was pressed pursuant to UCPR r 5.4. That rule appears in Part 5 of the Rules, dealing with preliminary discovery and inspection. The point that was taken on behalf of Byrne Lewis Constructions was that the operation of r 5.4 ought be governed, or more accurately limited, by the fact that it occurs in Part 5 and having regard to the title of Part 5. Thus, it was submitted, r 5.4 operates only to authorise third party discovery in the nature of preliminary discovery. Reliance was placed on r 21.2, dealing with discovery between parties. I have to confess that I do not understand the significance of r 21.2 in this context of this dispute. 4 Rule 5.4 reads as follows: (1) The court may order that a person who is not a party to proceedings, but in respect of whom it appears to the court that the person may have or have had possession of a document that relates to any question in the proceedings, must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to that question. (2) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.