Levis, Graham Donald & Ors v McDonald, Alice & Anor [1997] FCA 349

Levis, Graham Donald & Ors v McDonald, Alice & Anor [1997] FCA 349

The application for preliminary discovery and oral examination is not interlocutory but final. The hearsay evidence contained in paragraphs 10, 11, and 15 of Mr Lucas's affidavit is inadmissible, as the source of representations is not sufficiently identified, and s 75 is not satisfied. Discretionary grounds do not support granting preliminary discovery because at least one respondent (Mr Daly) can be identified for proceedings, and no sufficient factual basis is shown to warrant orders against additional persons.

Parties
Applicant: Graham Donald Levis; Applicant: Daniel Armstrong; Applicant: Denis Lee; Respondent: Alice McDonald; Respondent: Brian John Daly
Jurisdiction
Australia
Judgment Date
30 April 1997
Procedural Posture
Application for Preliminary Discovery / Judgment on Application
Outcome
Application dismissed
Legal Topics
Preliminary Discovery, Hearsay Evidence, Final Vs Interlocutory Orders
Civil Procedure Preliminary Discovery Hearsay Evidence Final Vs Interlocutory Orders

Case Brief

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Parties

Graham Donald Levis

Applicant

Daniel Armstrong

Applicant

Denis Lee

Applicant

Alice McDonald

Respondent

Brian John Daly

Respondent

Procedural Posture

Application for Preliminary Discovery / Judgment on Application

Legal Issues

  1. 1 Whether application for order to examine respondents and for discovery was interlocutory or final
  2. 2 Admissibility of hearsay evidence under s 75 Evidence Act 1995
  3. 3 Whether discretionary grounds support making preliminary discovery orders

Ratio Decidendi

The application for preliminary discovery and oral examination is not interlocutory but final. The hearsay evidence contained in paragraphs 10, 11, and 15 of Mr Lucas's affidavit is inadmissible, as the source of representations is not sufficiently identified, and s 75 is not satisfied. Discretionary grounds do not support granting preliminary discovery because at least one respondent (Mr Daly) can be identified for proceedings, and no sufficient factual basis is shown to warrant orders against additional persons.

Court Disposition

Application dismissed

Orders

  • Motion brought by notice of motion filed 20 February 1997 dismissed as incompetent.
  • Application dismissed.