Dove v Everforex Financial Pty Ltd [2023] FCA 1171

Dove v Everforex Financial Pty Ltd [2023] FCA 1171

Everforex's application to set aside the Notices to Produce was dismissed because the first Notice to Produce was issued under r 20.31 and, absent any objection based on lack of control or privilege, Mr Dove was entitled to inspect the documents mentioned in Everforex's affidavit. The documents sought by the second Notice to Produce were relevant to Everforex's claimed loss and to the pending security for costs application. The possible operation of s 570 of the Fair Work Act 2009 (Cth) did not bar production, because there was some prospect that s 570(2) could be engaged and the documents were relevant to whether security should be ordered.

Jurisdiction
Australia
Judgment Date
03 October 2023
Procedural Posture
Practice and Procedure Application to Set Aside Notices to Produce in an Employment and Industrial Relations Proceeding / Interlocutory Application Heard on 4 August 2023 and on the Papers; Judgment Delivered on 3 October 2023
Outcome
Everforex's application to set aside the Notices to Produce was dismissed.
Legal Topics
['notices to Produce' 'relevance of Documents' 'security for Costs' 'fair Work Act Costs Discretion' 'production of Documents']
['practice and Procedure' 'employment and Industrial Relations' 'fair Work'] ['notices to Produce' 'relevance of Documents' 'security for Costs' 'fair Work Act Costs Discretion' 'production of Documents']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Practice and Procedure Application to Set Aside Notices to Produce in an Employment and Industrial Relations Proceeding / Interlocutory Application Heard on 4 August 2023 and on the Papers; Judgment Delivered on 3 October 2023

Legal Issues

  1. 1 ['Whether the Notices to Produce dated 20 December 2022, 7 June 2023 and 13 July 2023 should be set aside for lack of relevance.' 'Whether documents sought under r 20.31 of the Federal Court Rules 2011 (Cth) had to be produced where no objection of lack of control or privilege was taken.' 'Whether the potential operation of s 570 of the Fair Work Act 2009 (Cth) barred production of documents relevant to an application for security for costs.' "Whether historical financial records of Everforex were relevant to loss claimed in the cross-claim and to Everforex's ability to meet an adverse costs order."]

Ratio Decidendi

Everforex's application to set aside the Notices to Produce was dismissed because the first Notice to Produce was issued under r 20.31 and, absent any objection based on lack of control or privilege, Mr Dove was entitled to inspect the documents mentioned in Everforex's affidavit. The documents sought by the second Notice to Produce were relevant to Everforex's claimed loss and to the pending security for costs application. The possible operation of s 570 of the Fair Work Act 2009 (Cth) did not bar production, because there was some prospect that s 570(2) could be engaged and the documents were relevant to whether security should be ordered.

Court Disposition

Everforex's application to set aside the Notices to Produce was dismissed.

Orders

  • ["The respondent/cross-applicant's application to set aside the Notices to Produce dated 20 December 2022, 7 June 2023 and 13 July 2023 (Notices to Produce) be dismissed." 'The respondent/cross-applicant is to produce for inspection the documents sought by the Notice to Produce dated 20 December 2022 by 9.30 a.m. on...