Lakaev v Denny [2010] NSWSC 136

Lakaev v Denny [2010] NSWSC 136

Because preliminary discovery had already been ordered, the issue was whether the objected material should be excluded as irrelevant, confidential, outside the orders, or under any residual discretion. The Court held that the circumstances did not warrant discretionary refusal, there was no want of reasonable enquiries by the plaintiff, and most of the Report and appendices related to publication of the specified blogs because they evidenced the process, participants, usernames, or involvement in publication. The orders did not require that the records be publications by the defendants rather than to them. However, Appendices 2, 36 and 37 were excluded because they consisted of...

Jurisdiction
Australia
Judgment Date
05 March 2010
Procedural Posture
Procedural Ruling on Preliminary Discovery in a Defamation Proceeding / Determination of the First and Second Defendants' Objections to Disclosure of an Expert Report Prepared Pursuant to Preliminary Discovery Orders
Outcome
Plaintiff granted access to Mr Robert Atkins' report and related material, subject to specified exclusions; defendants' undertaking noted; liberty to re-list granted.
Legal Topics
['preliminary Discovery' 'objections to Discovery' 'relevance' 'confidentiality' 'residual Discretion' 'internet Publication']
['practice and Procedure' 'defamation'] ['preliminary Discovery' 'objections to Discovery' 'relevance' 'confidentiality' 'residual Discretion' 'internet Publication']

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Procedural Posture

Procedural Ruling on Preliminary Discovery in a Defamation Proceeding / Determination of the First and Second Defendants' Objections to Disclosure of an Expert Report Prepared Pursuant to Preliminary Discovery Orders

Legal Issues

  1. 1 ["Whether access to the objected material in Mr Robert Atkins' report should be refused because it was irrelevant, confidential, outside the terms of the orders dated 8 April 2009, or subject to a residual discretion to refuse discovery." 'Whether communications not published by the defendants or not directly published on the named websites nevertheless related to the publication of the blogs for the purposes of the preliminary discovery orders.' 'Whether Appendices 2, 36 and 37 could assist in identifying a potential defendant.']

Ratio Decidendi

Because preliminary discovery had already been ordered, the issue was whether the objected material should be excluded as irrelevant, confidential, outside the orders, or under any residual discretion. The Court held that the circumstances did not warrant discretionary refusal, there was no want of reasonable enquiries by the plaintiff, and most of the Report and appendices related to publication of the specified blogs because they evidenced the process, participants, usernames, or involvement in publication. The orders did not require that the records be publications by the defendants rather than to them. However, Appendices 2, 36 and 37 were excluded because they consisted of...

Court Disposition

Plaintiff granted access to Mr Robert Atkins' report and related material, subject to specified exclusions; defendants' undertaking noted; liberty to re-list granted.

Orders

  • ['The Court notes the undertaking of the first and second defendants not to take any steps under Order 10 of the orders dated 8 April 2009, until further order of the Court.' 'The plaintiff be granted access to the Report of Mr Robert Atkins dated 1 October 2009, prepared pursuant to Order 4 of the orders dated 8...