FEDERAL COURT OF AUSTRALIA

Ng v Yanjian Group (Australia) Pty Ltd [2013] FCA 1246

THE COURT ORDERS THAT:

1.    Leave is given to the applicant to issue a subpoena directed to the Managing Partner of Norton Rose Lawyers for the production of a Settlement Schedule in relation to the sale of units in a development project described as the “Midtown Project” located at 27 Charlotte Street, Brisbane, in the possession of Norton Rose Lawyers (if any).

2.    Any subpoena issued pursuant to leave granted by Order 1 shall be returnable before the Court at 9.30am on Wednesday, 4 December 2013.

3.    The respondent pay the costs of the applicant of and incidental to the application for further and better discovery.

4.    The costs payable pursuant to Order 3 be paid within 14 days of being taxed or otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

1    This is an application in respect of discovery in the proceedings. A List of Documents was either filed and/or served, dated 21 May 2013, which identifies the documents in the possession of the respondent which are said to be the field of documents directly relevant to the issues in the proceeding. The application came before the Court on 25 October 2013 and was adjourned to today to enable discussions to take place between the parties in relation to the production of a range of documents which are identified in a document called “Amended Annexure A”.

2    In respect of many of the documents in that annexure, there has been supplementary production of material. Having regard to the issues in the proceeding and a List of Documents previously sworn on 21 May 2013, I am satisfied that the production of directly relevant documents in May 2013 was not adequate or comprehensive. It is not necessary in these reasons to illustrate each of the categories demonstrating why that is so, but I am satisfied that the production was initially unsatisfactory.

3    The remaining question is the question of costs. I am satisfied that the application was brought in circumstances where the adequacy of the respondent’s discovery had to be tested before the Court, and in many respects that application was resisted.

4    In the period of the week’s adjournment, a range of documents have been produced, and, as I say, I am satisfied that the original production of directly relevant documents was not satisfactory. I therefore order the respondent to pay the costs of and incidental to the application for further discovery.

5    I further order that the costs be paid within 14 days of being taxed or agreed.

Associate:

Dated:    4 November 2013