Kelly v Scenic Tours Pty Limited [2019] NSWSC 1266

Kelly v Scenic Tours Pty Limited [2019] NSWSC 1266

Preliminary discovery was ordered because the plaintiffs satisfied UCPR 5.3(1): they may be entitled to make a claim for relief against the defendant in respect of cruises disrupted by drought in 2018; reasonable inquiries have been made but information is insufficient to decide on commencing proceedings, largely due to the commercial requirements of the litigation funder; the defendant may possess documents that would assist the decision; and a staged approach to discovery is appropriate and not unreasonably onerous.

Parties
First Plaintiff: Darran Kelly; Second Plaintiff: Gavin Lawrence; Defendant: Scenic Tours Pty Limited
Jurisdiction
Australia
Judgment Date
24 September 2019
Procedural Posture
Application for Preliminary Discovery in Representative Proceedings / Interlocutory Preliminary Discovery Order
Outcome
Preliminary discovery granted in part, with staged discovery for defined categories of documents for the 47 cruises in evidence.
Legal Topics
Preliminary Discovery, Representative Proceedings, Class Actions, Consumer Law, Discovery of Documents
Civil Procedure Preliminary Discovery Representative Proceedings Class Actions Consumer Law Discovery of Documents

Case Brief

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Parties

Darran Kelly

First Plaintiff

Gavin Lawrence

Second Plaintiff

Scenic Tours Pty Limited

Defendant

Procedural Posture

Application for Preliminary Discovery in Representative Proceedings / Interlocutory Preliminary Discovery Order

Legal Issues

  1. 1 Whether plaintiffs are entitled to preliminary discovery under UCPR 5.3(1) for the purpose of assessing the viability of representative proceedings.
  2. 2 Whether sufficient evidence exists that disrupted cruises other than the 14 identified may have arisen from similar or related circumstances.
  3. 3 Whether the nature and scope of enquiries made by plaintiffs amount to 'reasonable enquiries' under UCPR 5.3(1).

Ratio Decidendi

Preliminary discovery was ordered because the plaintiffs satisfied UCPR 5.3(1): they may be entitled to make a claim for relief against the defendant in respect of cruises disrupted by drought in 2018; reasonable inquiries have been made but information is insufficient to decide on commencing proceedings, largely due to the commercial requirements of the litigation funder; the defendant may possess documents that would assist the decision; and a staged approach to discovery is appropriate and not unreasonably onerous.

Court Disposition

Preliminary discovery granted in part, with staged discovery for defined categories of documents for the 47 cruises in evidence.

Orders

  • Defendant to give plaintiffs' solicitor preliminary discovery of documents in categories 3, 4, 6 and 9 of the schedule regarding the 14 disrupted cruises, 18 'probably' disrupted cruises, and 15 'possibly' disrupted cruises, by 25 November 2019.
  • Costs are reserved.