Fussell v Hanrahan trading as Dignan & Hanrahan Solicitors

HIS HONOUR: Practice Note SC CL 7 provides relevantly as follows:

At a directions hearing before me today, the defendants sought orders in the nature of discovery, including the notification of categories of documents, and the resolution of any dispute concerning proposed categories. The plaintiffs opposed any orders of this kind upon the basis that the defendants have not established any demonstrated need for such orders. The parties are otherwise effectively in agreement that an order should be made that the plaintiffs serve their evidence by no later than August 2022.

These proceedings were commenced in 2018. They have not moved at the speed of sound since then. As far as I am aware, the defendants have not previously sought orders from the court with respect to discovery. They have not provided evidence in support of their contention that discovery is necessary, beyond a general reference to the nature of the proceedings and the defences they have raised. The plaintiffs maintain, with some merit, that that is not sufficient.

The facts that give rise to these proceedings have already been the subject of detailed consideration by Parker J and the Court of Appeal: see Fussell v Deigan [2018] NSWSC 1419; Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299. However, none of the defendants in the present proceedings was a party to that dispute.

The current pleading is the amended statement of claim filed as recently as July 2021. The amendments effected by that pleading are extensive. Although defences have been filed with respect to the amended document, the court file does not contain any defences that may have been filed to its predecessor. On one view, the proceedings are accordingly not yet 12 months old.

The practice note supports the contention that discovery ought not to be made simply as a matter of course. The burden of the plaintiffs’ submissions is to that effect. Unless the defendants are able to show that discovery is necessary, particularly having regard to the extensive assessment of the competing legal issues between the contracting parties in the Court of Appeal, which relevantly informs the present proceedings, I am not prepared to make the orders sought.

In the circumstances, the following orders are sufficient: