Case: KC v Shiley Inc [1997] 796 FCA (14 August 1997)
Outcome: cited
earlier, Lyndhurst LC in Taylor v Rundell (1841) Cr &amp; Ph 104, 41 ER 429 framed discovery in terms of an obligation which parties to litigation must satisfy: 'If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it.' (ER 433, cf more recently von Doussa J in Re McGorm; ex parte Co-operative Building Society of SA (1989) 86 ALR 275 at 278 and Tamberlin J in KC v Shiley Inc [1997] 796 FCA (14 August 1997).) It is also in my view important to ensure that the parties, so far as possible, are on an even footing in relation to available evidence, their obligations to discover relevant material, and to paraphrase Tamberlin J in KC v Shiley Inc , are not surprised by new material unexpectedly appearing. ORDERS As to the First Notice of Motion the Court orders that: 1. The first and second respondents file an affidavit stating whether any of following documents or classes of documents referred to in the schedule to this application is or has been in their possession, custody or power and, if it has been but is no longer in their possession, custody or power when they parted with it, such affidavit to be filed and served within 7 days of the date of this order: &#8226; Agreement for Purchase of Assets dated 24 January 2001 &#8226; Budgets &#8226; Budget Summaries &#8226; Hancock Board paper evidencing the consideration of various options in relation to the orchards and the view that the orchards were not performing in accordance with their return criteria &#8226; Hancock Board minute evidencing the decision to sell the orchards referred to by Strahley &#8226; The actual pack out rates for 2004 and the notional budgeted packout rates for the financial year 30 June 2005 referred to by Strahley. 2. The first and second respondents file and serve a Supplementary List of Documents in Form 22 and otherwise in compliance with Order 15 Rule 6 of the Federal Court Rules within 14 days of the date of this order discovering any document annexed to the affidavits of the respondents' witnesses filed in this action which are not already listed in the first and second respondents' List of Documents filed 29 March 2006 and the documents referred to in the affidavit required to be discovered by paragraph 1 of this order. 3. Inspection of those documents in the supplementary list of documents is to be provided within 21 days of the date of this order. 4. The time for service of the notice of motion be abridged until a time no later than 4.00 pm, 20 July 2006. 5. Costs be reserved. As to the Second Notice of Motion the Court orders that: 1. The applicants file an affidavit stating whether any of following documents or classes of documents referred to in the schedule provided in support of this application is or has been in their possession, custody or power and, if it has been but is no longer in their possession, custody or power when they parted with it, such affidavit to be filed and served within 7 days of the date of this order: &#8226; Item 1 Confidentiality Agreement between the First Respondent and the Second Applicant &#8226; Items 19, 20 and 22 Spray Records &#8226; Item 14 The second applicant's 100 day plan &#8226; Item 13 Westpac and ANZ documents and correspondence &#8226; Item 15 Copies of all cash flow &#8226; Item 16 Creditors invoices for first applicant &#8226; Item 18 Email from David Breed to the second applicant &#8226; Item 21 Management reports for the Orchards and Packing shed &#8226; Item 25 Third applicant's orchard management plans &#8226; Items 26, 27 and 28 Cash flows, correspondence and emails 2. The applicants file and serve a Supplementary List of Documents in Form 22 and otherwise in compliance with Order 15 Rule 6 of the Federal Court Rules within 14 days of the date of this order discovering any document referred to in the affidavit required to be discovered by par 1 of this order. 3. Inspection of those documents in the supplementary list of documents is to be provided within 21 days of the date of this order. 4. Once the respondents allow the applicants to have access to the computer in the packing shed for the purpose of accessing the SmartPak, TotalPak and packout records the applicants are to, within 7 days of the date of access being provided, file and serve a Supplementary List of Documents in Form 22 and otherwise in compliance with O 15 r 6 of the Federal Court Rules discovering the SmartPak, TotalPak and packout records referred to in items 2, 17 and 30 of the Schedule provided in support of this notice of motion. Inspection of such documents is to be provided within 14 days of the date of access being provided. 5. The time for service of the notice of motion be abridged until a time no later than 4.00 pm, 20 July 2006. 6. Costs be reserved. I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 4 August 2006 Counsel for the Applicant: Mr RA Perry SC Solicitor for the Applicant: Lynch &amp; Co Counsel for the Respondent: Mr PP McQuade Solicitor for the Respondent: Mc Cullough Robertson Date of Hearing: 28 July 2006 Date of Judgment: 4 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1001.html