Smith v Ventia Pty Limited [2021] NSWDC 236

Procedural Posture

Civil Preliminary Discovery Application / Procedural Ruling on Summons for Preliminary Discovery

Legal Issues

1. 1 ['Whether the plaintiff may be entitled to make a claim for relief against Ventia for breach of contract arising from the investigation and termination of his employment.' 'Whether the plaintiff made reasonable inquiries but remained unable to obtain sufficient information to decide whether to commence proceedings.' 'Whether Ventia may have or have had possession of documents that would assist the plaintiff to decide whether to commence proceedings.' 'Whether the categories of documents sought were oppressive or subject to legal professional privilege.' "Whether Ventia's resistance to production warranted indemnity costs."]

Ratio Decidendi

All requirements of Uniform Civil Procedure Rules 2005 r 5.3 were established. The plaintiff may have a breach of contract claim concerning the investigation and termination process, had made reasonable inquiries, and lacked objectively necessary information, including the investigation report and related communications, to decide whether to commence proceedings and assess possible defences and quantum. Ventia may have or have had the requested documents, the oppression objection lacked evidentiary support, and the privilege assertion was insufficiently supported at this stage. The Court exercised its discretion to order preliminary discovery and awarded indemnity costs because Ventia...

Court Disposition

Application for preliminary discovery granted with indemnity costs.

Orders

• ['The defendant is to give discovery of the documents described in the categories set out in paragraph 1 of the Summons, within 14 days of the date of this order.' 'The defendant is to produce the documents for inspection by the plaintiff within 28 days from the date of this order.' "The defendant is to pay the...