Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80

Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80

The summons was well commenced and could be disposed of in the Court of Appeal under s 51(2) despite the interlocutory appeal ordinarily lying to the Common Law Division. However, no appellable error was shown in the associate Judge's discretionary refusal of preliminary discovery. Her Honour had not applied an unduly narrow concept of possession, had expressly recognised past possession, and the evidence addressed possession, custody or control. The refusal was justified by the excessive breadth of the categories sought, the failure to identify particular documents, and the steps and evidence provided by the respondents. No case warranting leave was established, making it unnecessary...

Jurisdiction
Australia
Judgment Date
18 April 2019
Procedural Posture
Summons Seeking Leave to Appeal From an Interlocutory Decision Refusing Preliminary Discovery / Court of Appeal Application for Leave to Appeal
Outcome
Leave to appeal refused; summons seeking leave to appeal dismissed with costs.
Legal Topics
['leave to Appeal' 'interlocutory Decision of Associate Judge' 'preliminary Discovery' 'possession, Custody or Power of Documents' 'supreme Court Act 1970 (nsw), S 51(2)']
['appeals' 'civil Procedure'] ['leave to Appeal' 'interlocutory Decision of Associate Judge' 'preliminary Discovery' 'possession, Custody or Power of Documents' 'supreme Court Act 1970 (nsw), S 51(2)']

Case Brief

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Procedural Posture

Summons Seeking Leave to Appeal From an Interlocutory Decision Refusing Preliminary Discovery / Court of Appeal Application for Leave to Appeal

Legal Issues

  1. 1 ["Whether an appeal from the associate Judge's interlocutory decision lay to the Court of Appeal or was nevertheless well commenced and able to be disposed of in the Court of Appeal under s 51(2) of the Supreme Court Act 1970 (NSW)." 'Whether the associate Judge made appellable error in refusing preliminary discovery.' 'Whether the associate Judge applied an unduly narrow concept of possession by failing to have regard to custody and power.' 'Whether leave to appeal, and any necessary extension of time, should be granted.']

Ratio Decidendi

The summons was well commenced and could be disposed of in the Court of Appeal under s 51(2) despite the interlocutory appeal ordinarily lying to the Common Law Division. However, no appellable error was shown in the associate Judge's discretionary refusal of preliminary discovery. Her Honour had not applied an unduly narrow concept of possession, had expressly recognised past possession, and the evidence addressed possession, custody or control. The refusal was justified by the excessive breadth of the categories sought, the failure to identify particular documents, and the steps and evidence provided by the respondents. No case warranting leave was established, making it unnecessary...

Court Disposition

Leave to appeal refused; summons seeking leave to appeal dismissed with costs.

Orders

  • ['Summons seeking leave to appeal filed 29 October 2018 dismissed with costs.' 'Reasons reserved.']