Peter Simson v Wotif.com Holdings Limited [2013] NSWSC 1809

Peter Simson v Wotif.com Holdings Limited [2013] NSWSC 1809

Limited pre-evidence disclosure was ordered because much of the relevant material is solely in the possession of the defendants, constituting exceptional circumstances under Practice Note SC Eq 11. However, broad discovery and further and better particulars were refused. The plaintiffs' failure to comply precisely with procedure was excused in favour of substance, but the majority of their relief was unreasonable and thus they were ordered to pay the defendants' costs forthwith under UCPR Part 42 r 42.7.

Jurisdiction
Australia
Judgment Date
29 November 2013
Procedural Posture
Interlocutory Application / Decision on Plaintiff's Notice of Motion Regarding Discovery, Particulars and Expert Evidence
Outcome
Limited disclosure allowed before evidence on specific categories only; remainder of notice of motion dismissed; plaintiffs to pay defendants' costs of the motion forthwith.
Legal Topics
['disclosure Before Evidence' 'discovery' 'practice Note SC Eq 11' 'particulars of Pleading' 'expert Evidence' 'costs']
['civil Procedure' 'equity'] ['disclosure Before Evidence' 'discovery' 'practice Note SC Eq 11' 'particulars of Pleading' 'expert Evidence' 'costs']

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Procedural Posture

Interlocutory Application / Decision on Plaintiff's Notice of Motion Regarding Discovery, Particulars and Expert Evidence

Legal Issues

  1. 1 ['Whether exceptional circumstances exist to warrant disclosure before evidence is served under Practice Note SC Eq 11' 'Whether further and better particulars should be ordered' 'Appropriateness of directions on expert evidence timing' 'Appropriateness of ordering costs to be paid forthwith']

Ratio Decidendi

Limited pre-evidence disclosure was ordered because much of the relevant material is solely in the possession of the defendants, constituting exceptional circumstances under Practice Note SC Eq 11. However, broad discovery and further and better particulars were refused. The plaintiffs' failure to comply precisely with procedure was excused in favour of substance, but the majority of their relief was unreasonable and thus they were ordered to pay the defendants' costs forthwith under UCPR Part 42 r 42.7.

Court Disposition

Limited disclosure allowed before evidence on specific categories only; remainder of notice of motion dismissed; plaintiffs to pay defendants' costs of the motion forthwith.

Orders

  • ['Plaintiffs granted limited discovery per revised schedule after luncheon adjournment, before filing of evidence.' 'Request for further and better particulars dismissed.' 'Application for expert evidence directions dismissed.' "Plaintiffs to pay defendants' costs of and incidental to the motion forthwith under UCPR...