NSW Caselaw
New South Wales Supreme Court
CITATION : AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1272
HEARING DATE(S) : 25 September 2009 JURISDICTION : Equity Division Expedition List
JUDGMENT OF : Brereton J
EX TEMPORE JUDGMENT DATE : 25 September 2009
DECISION : Orders for discovery
CATCHWORDS : PROCEDURE – Discovery – Discovery by category
LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005, r 21.2
CATEGORY : Procedural and other rulings
AMI Australia Holdings Pty Ltd (first plaintiff/respondent) Advanced Medical Institute Pty Ltd (second plaintiff/respondent) PARTIES : Fairfax Media Publications Pty Ltd (first defendant/applicant) Rita Almohty (second defendant) Kelly Burke (third defendant) Kate McClymont (fourth defendant)
FILE NUMBER(S) : SC 3219/09
Dr E M Peden (plaintiffs/respondents) COUNSEL : Mr D R Sibtain w Mr M A Polden (first, third & fourth defendants/applicant) Mr R E Dubler SC w Mr E W Young (second defendant)
Bruce Stewart Dimarco (plaintiffs/respondents) SOLICITORS : Johnson Winter & Slattery (first, third and fourth defendants/applicant) TressCox Lawyers (second defendant)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST
BRERETON J
Friday 25 September 2009
3219/09 AMI Australia Holdings Pty Limited v Fairfax Media Publishing Pty Limited JUDGMENT (ex tempore) 1 HIS HONOUR: Discoveries by categories is not a substitution for a subpoena. Being a process of discovery, it remains critical that what is discoverable relates to a fact in issue in the proceedings. It is for that reason that I have repeatedly said that categories for discovery should ordinarily be framed by reference to issues, or facts in issue, in the proceedings, and not by descriptions of the documents discovery of which is sought – although the latter course can sometimes be acceptable, where the description is plainly referable to a fact in issue in the proceedings. 2 It is not the function of discovery by categories to add to the burden of discovery, or to require discovery of documents that would not be discoverable were general discovery ordered. Part of the difficulty here is that, for example, categories 6 and 7 are not plainly linked to a fact in issue in the proceedings, and as originally framed would necessarily capture documents which are not relevant to a fact in issue, and would not be discoverable if general discovery had been ordered. 3 In these proceedings the essential facts in issue appear to be the truth, falsity or confidentiality of the subject matter of each of the particulars 1 to 5 in the list of further particulars.
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