Metcash Trading Limited v Bunn [2008] FCA 1010

Metcash Trading Limited v Bunn [2008] FCA 1010

The Court was not satisfied at this stage that the respondent had failed to comply with his discovery obligations so as to justify judgment under O 35A, particularly given his evidence about the stolen laptop. However, because the respondent's many lists of documents did not identify documents by reference to the 4 May 2007 orders and categories, the applicants were entitled to know precisely what documents had been discovered in compliance with those orders. The respondent was therefore ordered to file an identifying affidavit and to make further and better discovery of relevant electronic records, with costs reserved.

Jurisdiction
Australia
Judgment Date
03 July 2008
Procedural Posture
Notice of Motion for Orders Under O 35 a R 2(2)(d) and (g) and R 3(2) of the Federal Court of Australia Rules 1979 (cth) for Alleged Default in Complying With Discovery Orders / Interlocutory Application Concerning Further and Better Discovery and Default Judgment
Outcome
Application allowed in part; affidavit and further electronic discovery ordered; no judgment entered against the respondent at this stage; costs reserved.
Legal Topics
['further and Better Discovery' 'default for Failure to Comply With Court Orders' 'electronic Records' 'affidavit Identifying Discovered Documents' 'reserved Costs']
['civil Procedure' 'discovery'] ['further and Better Discovery' 'default for Failure to Comply With Court Orders' 'electronic Records' 'affidavit Identifying Discovered Documents' 'reserved Costs']

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Procedural Posture

Notice of Motion for Orders Under O 35 a R 2(2)(d) and (g) and R 3(2) of the Federal Court of Australia Rules 1979 (cth) for Alleged Default in Complying With Discovery Orders / Interlocutory Application Concerning Further and Better Discovery and Default Judgment

Legal Issues

  1. 1 ['Whether the respondent was in default in complying with the orders made on 4 May 2007 for further and better discovery.' 'Whether the respondent should be ordered to file an affidavit identifying documents discovered in response to the 4 May 2007 orders and documents formerly in his possession, custody or power.' 'Whether the respondent should make further and better discovery of electronic records relevant to the issues in dispute.' 'Whether judgment should be entered, or conditionally entered, against the respondent under O 35A for alleged non-compliance.']

Ratio Decidendi

The Court was not satisfied at this stage that the respondent had failed to comply with his discovery obligations so as to justify judgment under O 35A, particularly given his evidence about the stolen laptop. However, because the respondent's many lists of documents did not identify documents by reference to the 4 May 2007 orders and categories, the applicants were entitled to know precisely what documents had been discovered in compliance with those orders. The respondent was therefore ordered to file an identifying affidavit and to make further and better discovery of relevant electronic records, with costs reserved.

Court Disposition

Application allowed in part; affidavit and further electronic discovery ordered; no judgment entered against the respondent at this stage; costs reserved.

Orders

  • ["The respondent file an affidavit within 21 days identifying precisely the documents in the further list of documents filed after 4 May 2007 which identify: the documents, if any, which respond to orders 1 and 2 of the orders made on 4 May 2007 by reference to the categories in the order and the notice of motion...