Hastwell v Kott Gunning (No 3) [2019] FCA 1641

Hastwell v Kott Gunning (No 3) [2019] FCA 1641

Kott Gunning is required to itemise discovery of privileged documents in Part 2 of its lists under r 20.17(2), and to provide particular discovery in specified categories where there is a demonstrated likelihood of relevant undisclosed documents, but not where the requests are speculative, excessively broad, or disproportionate. The implied undertaking does not restrict Kott Gunning’s use of court documents obtained as a non-party from other proceedings, absent express restriction; documents subject to legal professional privilege must still be disclosed in discovery lists, with inspection withheld subject to privilege claim. Both parties are ordered to provide further discovery in...

Parties
Applicant: Haydyn Gary Hastwell; Respondent: Kott Gunning
Jurisdiction
Australia
Judgment Date
08 October 2019
Procedural Posture
Interlocutory Application (discovery) in Federal Court Proceeding Alleging Discrimination and Breach of Contract / Determination of Interlocutory Applications for Further and Particular Discovery
Outcome
Interlocutory orders for further and particular discovery made in favour of both parties in limited categories, with most of the extensive requests for additional discovery refused.
Legal Topics
Discovery, Legal Professional Privilege, Sex Discrimination, Disability Discrimination, Implied Undertaking/harman Principle, Evidence in Employment Litigation, Particular Discovery Orders
Employment Law Discrimination Law Civil Procedure Discovery Legal Professional Privilege Sex Discrimination Disability Discrimination Implied Undertaking/harman Principle +2 more

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Parties

Haydyn Gary Hastwell

Applicant

Kott Gunning

Respondent

Procedural Posture

Interlocutory Application (discovery) in Federal Court Proceeding Alleging Discrimination and Breach of Contract / Determination of Interlocutory Applications for Further and Particular Discovery

Legal Issues

  1. 1 Whether the respondent (Kott Gunning) should be ordered to provide further itemised discovery, including particular discovery of documents in specified categories, to the applicant (Mr Hastwell)
  2. 2 Whether the applicant (Mr Hastwell) should be ordered to provide further particular discovery to the respondent (Kott Gunning), including sensitive documents such as pre-employment medical records and documents relating to other proceedings
  3. 3 Whether the implied undertaking (Harman principle) or without prejudice privilege or other restrictions apply to court documents obtained in related proceedings and affect their discoverability

Ratio Decidendi

Kott Gunning is required to itemise discovery of privileged documents in Part 2 of its lists under r 20.17(2), and to provide particular discovery in specified categories where there is a demonstrated likelihood of relevant undisclosed documents, but not where the requests are speculative, excessively broad, or disproportionate. The implied undertaking does not restrict Kott Gunning’s use of court documents obtained as a non-party from other proceedings, absent express restriction; documents subject to legal professional privilege must still be disclosed in discovery lists, with inspection withheld subject to privilege claim. Both parties are ordered to provide further discovery in...

Court Disposition

Interlocutory orders for further and particular discovery made in favour of both parties in limited categories, with most of the extensive requests for additional discovery refused.

Orders

  • The parties are directed to confer as to orders reflecting these reasons.
  • The parties must confer about the costs of their interlocutory applications and the costs reserved from previous case management hearings, and by a specified date must provide a minute of consent orders dealing with those matters or, if agreement cannot be reached, separate minutes of orders.