Leighton Contractors Pty Limited ABN 98 000 893 667 v Page Kirkland Management Pty Limited ABN 46 097 111 245 [2005] FCA 1508

Leighton Contractors Pty Limited ABN 98 000 893 667 v Page Kirkland Management Pty Limited ABN 46 097 111 245 [2005] FCA 1508

Where, in preliminary discovery, a party asserts on affidavit that all documents sought are protected by legal professional privilege and the grounds are not refuted or circumvented, the notices to produce should not be pursued and the applicant is entitled to its costs incurred after that point, with earlier costs to follow the event or be costs in the proceeding.

Parties
Applicant: Leighton Contractors Pty Limited; First Respondent: Page Kirkland Management Pty Limited; Second Respondent: Tyco Australia Pty Limited trading as Wormald Fire Systems
Jurisdiction
Australia
Judgment Date
21 October 2005
Procedural Posture
Preliminary Discovery Application / Interlocutory (costs of Notices to Produce and Motions)
Outcome
Applicant's notice of motion dismissed; orders as to costs made in favour of applicant for parts of the motions
Legal Topics
Preliminary Discovery, Discovery, Notices to Produce, Costs
Civil Procedure Preliminary Discovery Discovery Notices to Produce Costs

Case Brief

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Parties

Leighton Contractors Pty Limited

Applicant

Page Kirkland Management Pty Limited

First Respondent

Tyco Australia Pty Limited trading as Wormald Fire Systems

Second Respondent

Procedural Posture

Preliminary Discovery Application / Interlocutory (costs of Notices to Produce and Motions)

Legal Issues

  1. 1 Whether respondents are entitled to serve notices to produce in preliminary discovery proceedings
  2. 2 Entitlement to costs arising from notices to produce and related motions

Ratio Decidendi

Where, in preliminary discovery, a party asserts on affidavit that all documents sought are protected by legal professional privilege and the grounds are not refuted or circumvented, the notices to produce should not be pursued and the applicant is entitled to its costs incurred after that point, with earlier costs to follow the event or be costs in the proceeding.

Court Disposition

Applicant's notice of motion dismissed; orders as to costs made in favour of applicant for parts of the motions

Orders

  • The Applicant's Notice of Motion filed 7 September 2005 be dismissed.
  • The Second Respondent (Tyco) pay the Applicant's (Leighton's) costs of the motion filed 11 February 2005 (except as to questions of power to issue notices to produce), insofar as incurred from 16 February 2005 in relation to Tyco's notices to produce.