Forbes Engineering (Asia) Pte Limited v Forbes [2007] FCA 67

Forbes Engineering (Asia) Pte Limited v Forbes [2007] FCA 67

An order for non-party discovery against Deloitte Touche Tohmatsu was appropriate because there was no suggestion the material sought did not exist, the respondents had made numerous endeavours to obtain it from the applicants, there was good reason to believe Deloittes had the relevant material, the material appeared to be relevant source documentation required by the respondents' expert, and the request was not a fishing exercise or an onerous obligation. Costs were reserved because the requested documents included internal documents of Deloittes outside the applicants' power to discover.

Jurisdiction
Australia
Judgment Date
05 February 2007
Procedural Posture
Application for Non Party Discovery Under O 15 a R 8 of the Federal Court Rules / Respondents' Interlocutory Application Filed 18 January 2007
Outcome
Application granted in part; non-party discovery ordered and costs reserved.
Legal Topics
['non Party Discovery' 'federal Court Rules O 15 a R 8' 'inspection and Copying of Discovered Documents' 'costs Reserved']
['civil Procedure'] ['non Party Discovery' 'federal Court Rules O 15 a R 8' 'inspection and Copying of Discovered Documents' 'costs Reserved']

Case Brief

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Procedural Posture

Application for Non Party Discovery Under O 15 a R 8 of the Federal Court Rules / Respondents' Interlocutory Application Filed 18 January 2007

Legal Issues

  1. 1 ['Whether Deloitte Touche Tohmatsu should be ordered to make non-party discovery of documents relating to the financial affairs of Forbes Engineering Holdings Australia Pty Ltd for the years ending 31 December 1997, 1998 and 1999.' 'Whether the respondents or their nominees should be authorised to inspect and copy documents disclosed by Deloitte Touche Tohmatsu.' "Whether the respondents' costs of the application should be their costs in the proceeding or reserved."]

Ratio Decidendi

An order for non-party discovery against Deloitte Touche Tohmatsu was appropriate because there was no suggestion the material sought did not exist, the respondents had made numerous endeavours to obtain it from the applicants, there was good reason to believe Deloittes had the relevant material, the material appeared to be relevant source documentation required by the respondents' expert, and the request was not a fishing exercise or an onerous obligation. Costs were reserved because the requested documents included internal documents of Deloittes outside the applicants' power to discover.

Court Disposition

Application granted in part; non-party discovery ordered and costs reserved.

Orders

  • ['Pursuant to Order 15A rule 8 of the Federal Court Rules, Deloitte Touche Tohmatsu make discovery to the respondents of all documents in its possession relating to the financial affairs of Forbes Engineering Holdings Australia Pty Ltd (ACN 010 832 023) concerning the years ending 31 December 1997, 1998 and 1999,...