Sykes v Intermediate Capital Asia Pacific 2008 GP Limited (No 2) [2019] FCA 483

Sykes v Intermediate Capital Asia Pacific 2008 GP Limited (No 2) [2019] FCA 483

Because the applicants did not plead the relevant representations as representations as to future matters and did not show that the broad Investment Committee categories were directly relevant to pleaded issues, the broad discovery sought was speculative or amounted to fishing. The narrower categories offered by the ICG Respondents were sufficient to cover documents directly relevant to the pleaded issues, so discovery was ordered only in those terms.

Jurisdiction
Australia
Judgment Date
10 April 2019
Procedural Posture
Interlocutory Application for Discovery / Application Under R 20.13 of the Federal Court Rules 2011 (cth) for Non Standard Discovery
Outcome
Application allowed only to the extent of the narrower categories conceded by the ICG Respondents; broader discovery categories refused.
Legal Topics
['non Standard Discovery' 'direct Relevance to Issues Raised by the Pleadings' 'representations as to Future Matters' 'misleading or Deceptive Conduct' 'fishing Expedition']
['discovery' 'commercial and Corporations' 'commercial Contracts, Banking, Finance and Insurance' 'australian Consumer Law'] ['non Standard Discovery' 'direct Relevance to Issues Raised by the Pleadings' 'representations as to Future Matters' 'misleading or Deceptive Conduct' 'fishing Expedition']

Case Brief

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Procedural Posture

Interlocutory Application for Discovery / Application Under R 20.13 of the Federal Court Rules 2011 (cth) for Non Standard Discovery

Legal Issues

  1. 1 ['Whether the first to fourth and sixth to eighth respondents should make discovery of the three categories of documents sought by the applicants under r 20.13 of the Federal Court Rules 2011 (Cth).' 'Whether the documents sought were directly relevant to issues raised by the pleadings, given the application was for non-standard discovery and the applicants had not identified the directly relevant requirement as a criterion that should not apply.' 'Whether the Tax Representation, Approvals Representation, Exit Date Representation and Surplus Funds Representation supported the discovery categories sought, including by raising issues about representations as to future matters and reasonable grounds under s 4 of the Australian Consumer Law.' 'Whether the discovery sought was speculative or a fishing expedition.']

Ratio Decidendi

Because the applicants did not plead the relevant representations as representations as to future matters and did not show that the broad Investment Committee categories were directly relevant to pleaded issues, the broad discovery sought was speculative or amounted to fishing. The narrower categories offered by the ICG Respondents were sufficient to cover documents directly relevant to the pleaded issues, so discovery was ordered only in those terms.

Court Disposition

Application allowed only to the extent of the narrower categories conceded by the ICG Respondents; broader discovery categories refused.

Orders

  • ['Discovery be made by any or all of the First to Fourth and Sixth to Eighth Respondents (the ICG Respondents) within 10 weeks in respect of the following categories of documents: a. documents relied upon by Mr Shelswell, or to which he had regard, in making the statement "if I have understood the Deloitte\'s advice...