Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233

Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233

The witness statement's reference to Infrassure having received 'reports from time to time during the adjusting process' was not a direct allusion to any document or class of documents for the purposes of r 20.31, even though it was highly likely and later conceded that the reports included documents. The affidavit or witness statement itself had to mention the documents. The notice to produce was therefore set aside. Particular discovery was also refused because, although there was a basis to say the reports may have been in Infrassure's control, their relevance to the s 57 interest issue was doubtful and peripheral, and discovery would not facilitate the efficient conduct of the...

Jurisdiction
Australia
Judgment Date
28 February 2020
Procedural Posture
Commercial and Corporations Commercial Contracts, Banking, Finance and Insurance; Insurance Indemnity Proceeding Under a Business Interruption Insurance Policy / Interlocutory Application for Production Under R 20.31 of the Federal Court Rules 2011 (cth), Alternatively Particular Discovery; Amended Interlocutory Application Dated 25 February 2020
Outcome
Notice to produce dated 20 February 2020 set aside; application for discovery of the reports refused; amended interlocutory application otherwise dismissed, with other procedural orders made.
Legal Topics
['notice to Produce Documents Mentioned in a Pleading or Affidavit' 'direct Allusion to Documents' 'particular Discovery' 'business Interruption Insurance' 'interest Under S 57 of the Insurance Contracts Act 1984 (cth)' 'efficient Conduct of Proceedings']
['practice and Procedure' 'insurance' 'discovery'] ['notice to Produce Documents Mentioned in a Pleading or Affidavit' 'direct Allusion to Documents' 'particular Discovery' 'business Interruption Insurance' 'interest Under S 57 of the Insurance Contracts Act 1984 (cth)' 'efficient Conduct of Proceedings']

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Procedural Posture

Commercial and Corporations Commercial Contracts, Banking, Finance and Insurance; Insurance Indemnity Proceeding Under a Business Interruption Insurance Policy / Interlocutory Application for Production Under R 20.31 of the Federal Court Rules 2011 (cth), Alternatively Particular Discovery; Amended Interlocutory Application Dated 25 February 2020

Legal Issues

  1. 1 ["Whether the reference in a witness statement annexed to an affidavit to Infrassure having received 'reports from time to time during the adjusting process' amounted to mention of documents for the purposes of r 20.31 of the Federal Court Rules 2011 (Cth)." 'Whether the notice to produce dated 20 February 2020 should be set aside.' 'Whether, alternatively, particular discovery of the reports should be ordered under r 20.21 of the Federal Court Rules 2011 (Cth).' 'Whether discovery of the reports would be relevant to the s 57 interest issue and facilitate the efficient conduct of the proceeding.']

Ratio Decidendi

The witness statement's reference to Infrassure having received 'reports from time to time during the adjusting process' was not a direct allusion to any document or class of documents for the purposes of r 20.31, even though it was highly likely and later conceded that the reports included documents. The affidavit or witness statement itself had to mention the documents. The notice to produce was therefore set aside. Particular discovery was also refused because, although there was a basis to say the reports may have been in Infrassure's control, their relevance to the s 57 interest issue was doubtful and peripheral, and discovery would not facilitate the efficient conduct of the...

Court Disposition

Notice to produce dated 20 February 2020 set aside; application for discovery of the reports refused; amended interlocutory application otherwise dismissed, with other procedural orders made.

Orders

  • ['The applicant has leave to file and serve on the respondent the second witness statement of Mark Davidson dated 3 February 2020, the third witness statement of Mark Davidson dated 7 February 2020, and the supplementary expert report of John McKenzie dated 16 January 2020.' 'The applicant has leave to file and...