Barach v University of New South Wales (No 2) [2011] NSWSC 185

Barach v University of New South Wales (No 2) [2011] NSWSC 185

The seventh defendant was a party, and an active party, to the proceedings despite being a foreign defendant contesting jurisdiction. Part 21 of the Uniform Civil Procedure Rules 2005 was not to be read down so as to exclude notices to produce directed to such a defendant in interlocutory proceedings concerning jurisdiction or stay. Because the documents sought were specifically referred to in affidavits filed by the seventh defendant in support of his motion, the onus was on him to justify an order relieving him of production. He did not establish that the emails were irrelevant, oppressive, or sought only for fishing; their reference in his own affidavit supported their relevance to the...

Jurisdiction
Australia
Judgment Date
22 March 2011
Procedural Posture
Defamation Proceedings; Interlocutory Practice and Procedure Motion Concerning Notices to Produce / Plaintiff's Motion for Production of Documents and Seventh Defendant's Motion to Set Aside Notices to Produce Before the Hearing of the Seventh Defendant's Jurisdiction and Stay Motion
Outcome
The seventh defendant was granted leave to proceed on his motion of 18 March 2011, but that motion was dismissed. The plaintiff's requested production orders were made, and the seventh defendant was ordered to pay the plaintiff's costs of the motion.
Legal Topics
['notice to Produce' 'production of Documents Referred to in Affidavits' 'foreign Defendant Contesting Jurisdiction' 'forum Non Conveniens' 'stay of Proceedings' 'uniform Civil Procedure Rules 2005 Rr 21.10 and 21.11']
['civil Procedure' 'defamation' 'private International Law'] ['notice to Produce' 'production of Documents Referred to in Affidavits' 'foreign Defendant Contesting Jurisdiction' 'forum Non Conveniens' 'stay of Proceedings' 'uniform Civil Procedure Rules 2005 Rr 21.10 and 21.11']

Case Brief

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Procedural Posture

Defamation Proceedings; Interlocutory Practice and Procedure Motion Concerning Notices to Produce / Plaintiff's Motion for Production of Documents and Seventh Defendant's Motion to Set Aside Notices to Produce Before the Hearing of the Seventh Defendant's Jurisdiction and Stay Motion

Legal Issues

  1. 1 ["Whether the seventh defendant should be given leave to proceed on his motion filed on 18 March 2011 to set aside the plaintiff's notices to produce." 'Whether Part 21 of the Uniform Civil Procedure Rules 2005 empowers service of a notice to produce on a foreign defendant who has not submitted to jurisdiction and has an unresolved challenge to jurisdiction.' 'Whether the Court should otherwise order under r 21.11 so that the seventh defendant need not produce emails and a book referred to in affidavits filed in support of his motion.' 'Whether the notices to produce were oppressive, irrelevant, or an impermissible fishing exercise.']

Ratio Decidendi

The seventh defendant was a party, and an active party, to the proceedings despite being a foreign defendant contesting jurisdiction. Part 21 of the Uniform Civil Procedure Rules 2005 was not to be read down so as to exclude notices to produce directed to such a defendant in interlocutory proceedings concerning jurisdiction or stay. Because the documents sought were specifically referred to in affidavits filed by the seventh defendant in support of his motion, the onus was on him to justify an order relieving him of production. He did not establish that the emails were irrelevant, oppressive, or sought only for fishing; their reference in his own affidavit supported their relevance to the...

Court Disposition

The seventh defendant was granted leave to proceed on his motion of 18 March 2011, but that motion was dismissed. The plaintiff's requested production orders were made, and the seventh defendant was ordered to pay the plaintiff's costs of the motion.

Orders

  • ['The seventh defendant is given leave to proceed on his motion of 18 March 2011 and the motion is dismissed.' 'By 5pm on 23 March 2011 the seventh defendant produce for inspection each of the emails referred to in paragraph 7 of the affidavit sworn by him on 14 January 2011.' 'By 5pm on 23 March 2011 the seventh...