Ilumba Pty Ltd v Malouf [2019] FCA 2095

Ilumba Pty Ltd v Malouf [2019] FCA 2095

The references in the statement of claim were to an agreement or intended transaction, not a direct allusion to a tangible document, and the agreement was prospective rather than actual at the relevant point. Rule 20.31 therefore did not apply. Although the Court had broad power under s 23, the second and fourth respondents had not shown that production was required to avoid injustice or to enable them to respond to the statement of claim; their concerns about loss were presently speculative and could be pursued through discovery if appropriate. The interlocutory application was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
09 December 2019
Procedural Posture
Practice and Procedure Application for Production of Documents Mentioned in a Pleading / Interlocutory Application Filed by the Second and Fourth Respondents
Outcome
Interlocutory application dismissed.
Legal Topics
['notice to Produce Document Mentioned in Pleading or Affidavit' 'production for Inspection' 'federal Court Interlocutory Powers' 'discovery']
['practice and Procedure' 'commercial and Corporations' 'commercial Contracts'] ['notice to Produce Document Mentioned in Pleading or Affidavit' 'production for Inspection' 'federal Court Interlocutory Powers' 'discovery']

Case Brief

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Procedural Posture

Practice and Procedure Application for Production of Documents Mentioned in a Pleading / Interlocutory Application Filed by the Second and Fourth Respondents

Legal Issues

  1. 1 ['Whether references in paragraphs 8 and 9 of the statement of claim to a proposed franchise agreement were references to a document mentioned in a pleading for the purposes of r 20.31 of the Federal Court Rules 2011 (Cth).' 'Whether the Court should order production of the franchise agreement under s 23 of the Federal Court of Australia Act 1976 (Cth).' 'Whether the second and fourth respondents had shown sufficient grounds to warrant production of the documents before filing a defence or through discovery.']

Ratio Decidendi

The references in the statement of claim were to an agreement or intended transaction, not a direct allusion to a tangible document, and the agreement was prospective rather than actual at the relevant point. Rule 20.31 therefore did not apply. Although the Court had broad power under s 23, the second and fourth respondents had not shown that production was required to avoid injustice or to enable them to respond to the statement of claim; their concerns about loss were presently speculative and could be pursued through discovery if appropriate. The interlocutory application was therefore dismissed with costs.

Court Disposition

Interlocutory application dismissed.

Orders

  • ['The interlocutory application filed by the second and fourth respondents on 27 November 2019 be dismissed.' "The second and fourth respondents pay the applicant's costs of the interlocutory application, to be agreed or taxed."]