Fraser v Gorilla Rush Pty Ltd

By way of Notice of Motion filed on 17 March 2026, the first defendant, Gorilla Rush Pty Ltd, and the second defendant, Samuel Johnson, seek orders compelling production of certain documents by the plaintiff, Paul Fraser. On the application, Mr Johnson appears for himself and appears on behalf of Gorilla Rush, a company with which he is associated. Mr Hield, solicitor, appears on behalf of the plaintiff.

The Notice of Motion relates to a Notice to Produce filed and served by the defendants on the plaintiff seeking production of certain categories of documents. Although in written submissions Mr Johnson refers to the Notice to Produce as having been served on 18 February 2026, emails attached to the affidavits indicate that it was served at 1:17 pm on 19 February 2026.

In broad terms, the Notice to Produce seeks the following categories of documents:

Following service of that Notice to Produce, emails passed between the solicitor for the plaintiff and Mr Johnson on behalf of the defendants. In that correspondence, the plaintiff's solicitor indicated that his attitude to the Notice to Produce was that it was non-compliant with r 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) in that the document did not seek production of a specific document or thing, but instead sought production of categories of documents.

The solicitor for the plaintiff invited the defendants to withdraw the Notice to Produce and reissue a notice which was compliant with the Rules. Mr Johnson responded on 20 February indicating that the defendants maintained that the Notice to Produce was properly issued pursuant to the Rules and indicated that the documents sought were specific, clearly identified and relevant to facts in issue.

Without going into further details, the parties continued to correspond by email including an indication, on behalf of the defendants, that compliance with the Notice to Produce was expected by 4 March 2026. The chain of emails on the topic of the Notice to Produce, attached to Mr Johnson's affidavit of 17 March 2026, includes an email from the plaintiff's solicitor dated 3 March 2026 maintaining the plaintiff's position that the Notice was invalid because it did not comply with the Rules, but agreeing to voluntarily produce certain documents. Those documents included redacted bank statements concerning a receipt of an inheritance on 26 September 2022, redacted bank statements concerning the receipt of a modest sum slightly in excess of £1,000 for the sale of the plaintiff's Range Rover in March or April 2025, correspondence on 4, 5 and 7 February 2025 between the plaintiff's solicitor and Holding Redlich, the then solicitor for the defendants, and redacted bank statements showing the plaintiff's bank balance as at 6 February 2026 in an HSBC account of a relatively modest amount of approximately £5,500.

The 3 March 2026 email also asked the defendants to note that no documents were to be produced in answer to paragraph [3] of the Notice to Produce other than the correspondence between solicitors and indicated that the inheritance the plaintiff received in September 2022 had been expended by the plaintiff over the following year and three months whilst he was unemployed, unwell and unable to work.

A further email dated 11 March 2026 from the plaintiff's solicitor to the second defendant attaches a shared Google Drive folder that is said to contain further redacted bank statements in a further voluntary production.

Mr Johnson, on behalf of the defendants, has stated in sworn affidavits that he has never received the 3 March 2026 email or its attachments. However, it seems that the attachments to it must have been received by him at some time because they are annexed to his affidavit of 17 March 2026.

The issues to be determined are whether the Notice to Produce is compliant with the Rules, if so, whether the plaintiff has sufficiently complied with the Notice to Produce and whether the orders now sought by the defendants ought to be made.

The Rules in relation to notices to produce are clear. Rule 21.10 provides for a party to serve a Notice to Produce on an opposing party seeking the production of documents for inspection falling into one of two limbs. The first limb under r 21.10 is for any document or thing referred to in any originating process, pleading, affidavit or witness statement served by the opposing party. The second limb is for the production of any specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

The defendant's written submissions urge the Court to consider this application in terms of the first limb. Specifically, it is submitted that the documents or things referred to in the Notice to Produce were documents that the plaintiff himself had referred to in an affidavit. The affidavit in question, which was ultimately read on the application, is an affidavit affirmed by the plaintiff on 15 January 2025 and filed in the District Court of New South Wales. That affidavit related to a security for costs application which the defendants successfully brought against the plaintiff in the District Court. His Honour Judge Neilson made an order for security for costs on 3 April 2025. The order was complied with as is evidenced by a tax receipt indicating that the ordered funds were paid into the District Court by the plaintiff.

However, the affidavit of the plaintiff of 15 January 2025 does not refer to any of the documents referred to in the Notice to Produce. Rather, that affidavit refers, in fairly generic terms, to the plaintiff's financial position. It refers to his savings, the value of a car and the value of various pensions. There is no mention in the affidavit of any bank account, any inheritance amount, the ownership or sale of any Range Rover or documents between the plaintiff and financiers.

Accordingly, I am satisfied that the Notice to Produce is not compliant with the first limb of r 21.10. That is so because there has been no evidence to establish that the plaintiff has referred to any of the documents sought in any originating process, pleading, affidavit or witness statement.

What remains for consideration is the second limb of r 21.10, that is, whether or not the Notice to Produce seeks a specific document or thing that is clearly identified in the notice and whether such a thing is relevant to a fact in issue. Relevant to that second limb, I have taken into account the authorities referred to and relied on by the defendants and the plaintiff.

Notices to produce are a different mechanism to discovery. A notice to produce, as is set out in the second limb of r 21.10, requires specificity to identify the document or thing so that the opposing party knows with some particularity what it is that they have been required to produce. Additionally, a notice to produce requires, under the second limb, the document to have some relevance to a fact in issue.

Dealing now with the issue of whether the notice is appropriately specific about the documents to be produced. In Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182, his Honour Young CJ in Eq considered a rule which is in similar terms to r 21.10. There, his Honour considered the requirement that there be a specific document and that it be clearly identified.

The Chief Judge in Equity held that the rule in relation to notices to produce is not intended to subject the recipient to a general discovery obligation, but the words "clearly identified" in the rule mean that there must be something specific in relation to the way in which the document can be identified which is more specific than the ordinary processes of construction and employing intrinsic evidence or personal knowledge might require. That authority was followed by Brereton J in Norris v Kandiah [2007] NSWSC 1296 (“Norris”), which dealt with r 21.10.

Those authorities establish that the Notice to Produce must point out, in a manner that is distinct and free from confusion, the identity of a specific document or documents that are required to be produced. In those cases, the notices were found to be non-compliant with the Rules because they failed to clearly identify the documents required to be produced with sufficient particularity.

It is also relevant in Norris that the non-compliant Notice to Produce, not dissimilarly to the Notice to Produce in the present case, sought production of broadly described categories of documents including all files and letters of demands in relation to the sale of property, copies of all tax returns and assessments, profit and loss statements and balance sheets for the financial affairs of the plaintiff from a certain date, all bank accounts and financial statements in relation to all accounts held or operated by the plaintiff either alone or with another person from a specified date to the date of the application and all documents relating to the sale of some real estate.

Generic terms of the Notice to Produce in Norris are remarkably similar to the generic terms of the Notice to Produce in the present application.

As I have indicated, in Norris, Brereton J found that the terms of the Notice to Produce were not sufficiently specific to identify a specific document or thing and that the Notice to Produce was invalid.

Similarly, the Notice to Produce in this case does not seek specific documents or things, but rather seeks a broad range of generically described categories or classes of documents. As such, it fails to comply with the rules, specifically r 21.10.

In addition, if I was later found to be wrong about the generic nature of the Notice to Produce, the second part of the second limb requires the documents sought to be relevant to a fact in issue. The defendants submit that the documents are relevant to the issue of costs incurred in the District Court of New South Wales and whether the security for costs order previously imposed by Judge Neilson will be sufficient.

The present proceedings in the Supreme Court have been commenced by Summons filed on 8 October 2025. That Summons seeks an order under s 8(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) for the District Court proceedings to be transferred to the Supreme Court of New South Wales and for an order pursuant to s 5(1) of that same Act for the proceedings then to be transferred to the Federal Court of Australia. The Summons also seeks an order that any costs orders that have already been made in the proceedings to date, which can only be understood to be the costs in the District Court, are to remain costs in the cause.

The written submissions, filed on behalf of the defendants, in relation to the Supreme Court proceedings indicate that the defendants do not oppose the transfer of the proceedings from the District Court. The only issue, it seems, in relation to the transfer of proceedings is whether they should be transferred to the Supreme Court in New South Wales or to the Courts in Queensland. The other remaining issue is the issue of costs incurred in the District Court that the defendants submit may be thrown away by virtue of any transfer of proceedings and any possible expansion of the pleadings once transferred to the Federal Court.

In light of the nature of the proceedings in this Court, I accept the plaintiff's submissions that issues relating to inheritance, motor vehicles, bank accounts and related financial affairs of the plaintiff do not have any relevance to any fact in issue presently before this Court.

The issues upon which the plaintiff's financial position was relevant have already been dealt with in the District Court by way of the security for costs order and by the Court of Appeal in the defendant's unsuccessful appeal from that and another interlocutory order. In light of the fact that those issues have already been dealt with, there is presently no relevant fact in issue before this Court relating to the plaintiff's financial position.

Accordingly, I am not satisfied that any either of the limbs in r 21.10 are satisfied.

Accordingly, I make the following orders: