Findex Group Ltd v McKay [2019] NSWCA 93

Findex Group Ltd v McKay [2019] NSWCA 93

Leave to appeal was refused because the proposed appeal concerned interlocutory procedural orders, did not have real prospects beyond being merely arguable, and did not disclose error warranting appellate intervention. The primary judge was entitled to treat the application for unrestricted access as an impermissible fishing expedition and use of a search order for discovery or investigation, particularly where no substantive proceedings had been commenced in relation to the causes of action for which the order was obtained and the applicants already had access through their solicitors and nominated officer. The complaint about order 3(ii) did not itself warrant leave and was not shown to...

Jurisdiction
Australia
Judgment Date
03 May 2019
Procedural Posture
Application for Leave to Appeal From Interlocutory Orders / Court of Appeal Leave Application
Outcome
Leave to appeal refused.
Legal Topics
['interlocutory Orders' 'leave to Appeal' 'search Orders' 'anton Piller Orders' 'preliminary Discovery' 'confidentiality Regime' 'implied Undertaking' 'preservation of Evidence']
['civil Procedure'] ['interlocutory Orders' 'leave to Appeal' 'search Orders' 'anton Piller Orders' 'preliminary Discovery' 'confidentiality Regime' 'implied Undertaking' 'preservation of Evidence']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Interlocutory Orders / Court of Appeal Leave Application

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from interlocutory orders refusing the applicants unrestricted access to documents obtained under a search order.' 'Whether documents seized under a search order may be inspected or used to investigate or formulate potential causes of action beyond the purpose for which the search order was granted.' 'Whether order 3(ii), requiring return of documents identified by Mr McKay as not sent, forwarded or otherwise provided to another person, warranted leave to appeal.']

Ratio Decidendi

Leave to appeal was refused because the proposed appeal concerned interlocutory procedural orders, did not have real prospects beyond being merely arguable, and did not disclose error warranting appellate intervention. The primary judge was entitled to treat the application for unrestricted access as an impermissible fishing expedition and use of a search order for discovery or investigation, particularly where no substantive proceedings had been commenced in relation to the causes of action for which the order was obtained and the applicants already had access through their solicitors and nominated officer. The complaint about order 3(ii) did not itself warrant leave and was not shown to...

Court Disposition

Leave to appeal refused.

Orders

  • ['Refuse leave to appeal from orders 1, 3(ii) and 5 made by Ward CJ in Eq on 19 October 2018.' 'Order that the applicants pay the costs of the respondent, David Keith McKay, in this Court.']