Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465

Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465

Paragraphs 1, 2, 4 and 5 did not properly specify documents for production under UCPR r 34.1 because compliance would require identifying the processes of preparation and drafting of the letters and obtaining instructions from their authors as to what was used or referred to. The breadth of the expressions 'used for or referred to' and 'preparation and drafting' placed the requests in the nature of discovery rather than production under r 34.1, so the paragraphs were set aside.

Jurisdiction
Australia
Judgment Date
20 September 2018
Procedural Posture
Practice – Notice to Produce – Application to Set Aside / Ex Tempore Judgment on Defendant/applicant's Amended Notice of Motion
Outcome
Paragraphs 1, 2, 4 and 5 of the amended notice to produce were set aside and the plaintiff/respondent was ordered to pay the defendant/applicant's costs of paragraph 2 of its amended notice of motion.
Legal Topics
['notice to Produce' 'application to Set Aside' 'specification of Documents' 'uniform Civil Procedure Rules 2005 (nsw), R 34.1' 'discovery']
['civil Procedure'] ['notice to Produce' 'application to Set Aside' 'specification of Documents' 'uniform Civil Procedure Rules 2005 (nsw), R 34.1' 'discovery']

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Procedural Posture

Practice – Notice to Produce – Application to Set Aside / Ex Tempore Judgment on Defendant/applicant's Amended Notice of Motion

Legal Issues

  1. 1 ['Whether paragraphs 1, 2, 4 and 5 of the amended notice to produce sufficiently specified documents for the purposes of Uniform Civil Procedure Rules 2005 (NSW), r 34.1.' 'Whether the notice to produce impermissibly required interrogation of the authors of correspondence and operated as a substitute for discovery.' 'Whether paragraphs 4 and 5 had apparent relevance to the issues in the proceedings.']

Ratio Decidendi

Paragraphs 1, 2, 4 and 5 did not properly specify documents for production under UCPR r 34.1 because compliance would require identifying the processes of preparation and drafting of the letters and obtaining instructions from their authors as to what was used or referred to. The breadth of the expressions 'used for or referred to' and 'preparation and drafting' placed the requests in the nature of discovery rather than production under r 34.1, so the paragraphs were set aside.

Court Disposition

Paragraphs 1, 2, 4 and 5 of the amended notice to produce were set aside and the plaintiff/respondent was ordered to pay the defendant/applicant's costs of paragraph 2 of its amended notice of motion.

Orders

  • ['Paragraphs 1, 2, 4, 5 of the amended notice to produce dated 20 September 2018 set aside.' 'Order that the plaintiff/respondent pay the costs of the defendant/applicant of paragraph 2 of its amended notice of motion originally dated 6 September 2018.']