Republic Coal Pty Ltd v Baralaba Coal Pty Ltd [2009] NSWSC 748

New South Wales Supreme Court

CITATION : Republic Coal Pty Ltd v Baralaba Coal Pty Ltd [2009] NSWSC 748 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 6 July 2009 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 7 July 2009

DECISION : Limited order for discovery made in relation to specific disputed allegation – leave to amend originating process granted subject to certain qualifications – motion otherwise dismissed

CATCHWORDS : EVIDENCE – Expert evidence – Application for directions permitting plaintiff to obtain and produce expert evidence – examination of issues - where evidence on which expert would report is not relevant to true issue before the court – directions refused - DISCOVERY – Oppression suit - ordinarily appropriate to make order for discovery in oppression suit – where relationship between proposed categories and issues not apparent on face of categories – categories should ordinarily be expressed in terms of issues in proceedings - orders for discovery made only in respect of disputed allegations in pleadings

LEGISLATION CITED : (CTH) Corporations Act 2001, s 232 (NSW) Uniform Civil Procedure Rules 2005 r 21.1, r 21.2, r 21.2(3)(b)

CATEGORY : Procedural and other rulings

Re ABT Holdings Pty Limited (1979) 4 ACLR 40 CASES CITED : Re Australian Marinas (Australasia) Pty Ltd [1975] VR 372 Syndicate Mortgage Solutions Pty Limited v El-Sayed [2008] NSWSC 1396

Republic Coal Pty Limited (plaintiff) Baralaba Coal Pty Limited (first defendant) Cockatoo Coal Limited (second defendant) PARTIES : Cockatoo Coal Marketing company Pty Ltd (third defendant) Mark Lochtenberg (fourth defendant) Peter James Nightingale (fifth defendant) Norman Alfred Seckold (sixth defendant)