Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252

Markovic v Northern Sydney Area Health Service & Anor [2001] NSWSC 252

The plaintiff failed to discharge the onus of satisfying both the threshold requirement of r 7 and the necessity requirement of r 14 of the Supreme Court Rules 1970. The evidence did not sufficiently establish grounds for belief that the documents sought were or had been in the second defendant’s possession, nor that the discovery sought was necessary. Thus, the court was prohibited from making the order for further discovery and exercised its discretion to dismiss the application.

Jurisdiction
Australia
Judgment Date
06 April 2001
Procedural Posture
Civil / Interlocutory Hearing on Notice of Motion for Discovery
Outcome
Notice of Motion dismissed; costs awarded against the plaintiff.
Legal Topics
['discovery' 'procedural Requirements' 'threshold for Court Orders' 'personal Injury' 'negligence']
['civil Procedure' 'professional Negligence'] ['discovery' 'procedural Requirements' 'threshold for Court Orders' 'personal Injury' 'negligence']

Case Brief

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Procedural Posture

Civil / Interlocutory Hearing on Notice of Motion for Discovery

Legal Issues

  1. 1 ['Whether the plaintiff has satisfied the threshold and necessity requirements under Supreme Court Rules 1970, Pt 23 r 7 and r 14 for further discovery against the second defendant.' 'Whether the classes of documents sought relate to any matter in question in the proceedings under r 7.' "Correct meaning of 'necessary' in r 14 and whether Boyle v Downs (1979) 1 NSWLR 192 was correctly followed."]

Ratio Decidendi

The plaintiff failed to discharge the onus of satisfying both the threshold requirement of r 7 and the necessity requirement of r 14 of the Supreme Court Rules 1970. The evidence did not sufficiently establish grounds for belief that the documents sought were or had been in the second defendant’s possession, nor that the discovery sought was necessary. Thus, the court was prohibited from making the order for further discovery and exercised its discretion to dismiss the application.

Court Disposition

Notice of Motion dismissed; costs awarded against the plaintiff.

Orders

  • ['Notice of Motion is dismissed.' 'Plaintiff is to pay the costs of the Notice of Motion.' 'Exhibits may be returned.']