Ausgrid v Redbank Project Pty Ltd [2013] NSWSC 1596

Supreme Court New South Wales

Medium Neutral Citation: Ausgrid v Redbank Project Pty Ltd [2013] NSWSC 1596 Hearing dates: 31 October 2013 Decision date: 04 November 2013 Jurisdiction: Equity Division - Commercial List Before: Stevenson J Decision: Plaintiff entitled to preliminary discovery Catchwords: PRACTICE AND PROCEDURE - civil - interlocutory issues - preliminary discovery Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506 St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 Tandrin Aviation Holdings Ltd v Aero Toy Store LLC [2010] EWHC 40 Category: Principal judgment Parties: Ausgrid (plaintiff) Redbank Project Pty Ltd (defendant) Representation: Counsel: J R Williams (plaintiff) I M Jackman SC with J C Hewitt (defendant) Solicitors: King & Wood Mallesons (plaintiff) Resolve Litigation Lawyers (defendant) File Number(s): SC 2013/230810 Publication restriction: Nil

Judgment

Introduction 1By Summons filed on 30 July 2013 the plaintiff, Ausgrid, seeks orders pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 for preliminary discovery. 2UCPR r 5.3(1) is in the following terms: "(1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person ("the prospective defendant") but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief." 3Before me, there was no dispute as to the matters in UCPR r 5.3(1)(b) and (c). Nor was there any dispute that, assuming an order should be made, the particular order sought by Ausgrid was appropriate. 4The dispute before me was whether Ausgrid had established that it "may be entitled to make a claim for relief from the court" against the defendant, Redbank Project Pty Ltd. 5The documents Ausgrid seek from Redbank are relevant to the strength of a defence that communications between the parties reveal that Redbank would rely on, were proceedings to be commenced against it. 6Ausgrid contends that it cannot decide whether to commence proceedings against Redbank unless and until it has the documents sought and is thus able to assess the likely strength of that defence. The authorities establish that preliminary discovery may be available in these circumstances: St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 per Hely J at [26(f)]; and, generally, see Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506 per McColl JA at [47] - [52], particularly [51]. 7Redbank resists the application on the basis that, for a number of reasons, Ausgrid has not shown that it "may" be entitled to make a claim against Redbank "from the Court".