McGrath v HNSW Pty Limited (No 2) [2015] FCA 442

McGrath v HNSW Pty Limited (No 2) [2015] FCA 442

The notice to produce was not an abuse of process because it sought 13 specified documents, was not oppressive in scope, was not served at a disruptive or inconvenient time, and sought specific documents rather than further discovery or an order requiring the applicants to decide discoverability. The parties' agreement about discovery categories did not bar use of r 30.28(1). The documents had apparent relevance because they were reasonably likely to concern KPMG's valuation instructions, the possible application of a minority discount, the value of John McGrath's shares and minority rights arising from the 2006 restructure, and the applicants' alleged loss. The applicants had not shown...

Jurisdiction
Australia
Judgment Date
12 May 2015
Procedural Posture
Practice and Procedure Application to Set Aside a Notice to Produce Issued Pursuant to R 30.28(1) of the Federal Court Rules 2011 (cth) / Interlocutory Application
Outcome
Application dismissed with costs.
Legal Topics
['notice to Produce' 'discovery' 'apparent Relevance' 'abuse of Process' 'further Discovery' 'valuation Evidence' 'loss']
['practice and Procedure' 'civil Procedure'] ['notice to Produce' 'discovery' 'apparent Relevance' 'abuse of Process' 'further Discovery' 'valuation Evidence' 'loss']

Case Brief

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Procedural Posture

Practice and Procedure Application to Set Aside a Notice to Produce Issued Pursuant to R 30.28(1) of the Federal Court Rules 2011 (cth) / Interlocutory Application

Legal Issues

  1. 1 ['Whether the notice to produce dated 12 March 2015 should be set aside for lack of apparent relevance or as a fishing expedition.' 'Whether the documents sought were irrelevant or insufficiently relevant to justify production.' 'Whether the notice to produce was an abuse of process as an impermissible substitute for an application for further discovery after agreed discovery categories had been ordered.']

Ratio Decidendi

The notice to produce was not an abuse of process because it sought 13 specified documents, was not oppressive in scope, was not served at a disruptive or inconvenient time, and sought specific documents rather than further discovery or an order requiring the applicants to decide discoverability. The parties' agreement about discovery categories did not bar use of r 30.28(1). The documents had apparent relevance because they were reasonably likely to concern KPMG's valuation instructions, the possible application of a minority discount, the value of John McGrath's shares and minority rights arising from the 2006 restructure, and the applicants' alleged loss. The applicants had not shown...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application to set aside the notice to produce dated 12 March 2015 be dismissed with costs.' 'The notice to produce be made returnable on 11 June 2015 at 9.30 am.']