Twigg v Pitcher Partners Holdings Pty Ltd (No 5) [2024] NSWSC 1295

Twigg v Pitcher Partners Holdings Pty Ltd (No 5) [2024] NSWSC 1295

The appropriate procedure for a party seeking further documents after discovery under the Rules is to file a notice of motion; service of a notice to produce for substantially the same purpose is generally an irregular step and may amount to abuse of process. However, in this case, by practical expedient, the Court treated the notices to produce as an application for further discovery and ordered limited further disclosure arising from new evidence served, but reiterated that the general procedure must be followed unless exceptional circumstances apply.

Parties
First Plaintiff/respondent: Diane Twigg; Second Plaintiff/respondent: Twigg Plant Hire Pty Ltd atf The Twigg Family Trust; Third Plaintiff/respondent: Ipswich Landfill Pty Ltd atf the Ipswich Landfill Trust; Fourth Plaintiff/respondent: Brooklyn Landfill & Waste Management Pty Ltd atf the Brooklyn Landfill Trust; First Defendant/applicant: Pitcher Partners Holdings Pty Ltd; Second Defendant/applicant: Pitcher Partners Investment Services Pty Ltd; Third Defendant/applicant: Pitcher Partners Advisors Proprietary Limited; Fourth Defendant: Maxwell James Twigg; Fifth Defendant: Twigg Co Pty Ltd
Jurisdiction
Australia
Judgment Date
15 October 2024
Procedural Posture
Equity Commercial List / Procedural Ruling on Further Disclosure/discovery
Outcome
Further disclosure to be made in accordance with the Court's rulings in the Redfern Schedule; orders as agreed by parties to give effect to those rulings.
Legal Topics
Disclosure of Documents, Further Discovery, Notice to Produce, Abuse of Process
Civil Procedure Disclosure of Documents Further Discovery Notice to Produce Abuse of Process

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Parties

Diane Twigg

First Plaintiff/respondent

Twigg Plant Hire Pty Ltd atf The Twigg Family Trust

Second Plaintiff/respondent

Ipswich Landfill Pty Ltd atf the Ipswich Landfill Trust

Third Plaintiff/respondent

Brooklyn Landfill & Waste Management Pty Ltd atf the Brooklyn Landfill Trust

Fourth Plaintiff/respondent

Pitcher Partners Holdings Pty Ltd

First Defendant/applicant

Pitcher Partners Investment Services Pty Ltd

Second Defendant/applicant

Pitcher Partners Advisors Proprietary Limited

Third Defendant/applicant

Maxwell James Twigg

Fourth Defendant

Twigg Co Pty Ltd

Fifth Defendant

Procedural Posture

Equity Commercial List / Procedural Ruling on Further Disclosure/discovery

Legal Issues

  1. 1 Appropriate procedure for seeking further disclosure after initial discovery
  2. 2 Whether service of a notice to produce is an abuse of process in the circumstances

Ratio Decidendi

The appropriate procedure for a party seeking further documents after discovery under the Rules is to file a notice of motion; service of a notice to produce for substantially the same purpose is generally an irregular step and may amount to abuse of process. However, in this case, by practical expedient, the Court treated the notices to produce as an application for further discovery and ordered limited further disclosure arising from new evidence served, but reiterated that the general procedure must be followed unless exceptional circumstances apply.

Court Disposition

Further disclosure to be made in accordance with the Court's rulings in the Redfern Schedule; orders as agreed by parties to give effect to those rulings.

Orders

  • Further disclosure of documents by Pitcher Partners to plaintiffs as per the Redfern Schedule and agreed orders.
  • Service of notices to produce by plaintiffs treated as application for further discovery.