National Biofuels Group Pty Ltd v Elbow River Marketing Ltd Partnership [2010] FCA 88 (12 February 2010)

Last Updated: 18 February 2010

FEDERAL COURT OF AUSTRALIA

National Biofuels Group Pty Ltd v Elbow River Marketing Ltd Partnership [2010] FCA 88

Citation:		National Biofuels Group Pty Ltd v Elbow River Marketing Ltd Partnership [2010] FCA 88
Parties:		NATIONAL BIOFUELS GROUP PTY LIMITED v ELBOW RIVER MARKETING LIMITED PARTNERSHIP BY ITS GENERAL PARTNER, ELBOW RIVER MARKETING CORP.; ELBOW RIVER MARKETING LIMITED PARTNERSHIP BY ITS GENERAL PARTNER, ELBOW RIVER MARKETING CORP.; NATIONAL BIOFUELS GROUP PTY LIMITED
File number(s):		NSD 1808 of 2008
Judges:		BUCHANAN J
Date of judgment:		12 February 2010
Date of hearing:	12 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	8
Counsel for the Plaintiff/Cross-Defendant:	P.A. Maddigan
Solicitor for the Plaintiff/Cross-Defendant	Fox & Staniland
Counsel for the Defendant/Cross-Claimant:	M.R. Scott
Solicitor for the Defendant/Cross-Claimant:	Holman Fenwick Willan

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1808 of 2008

BETWEEN:	NATIONAL BIOFUELS GROUP PTY LIMITED Plaintiff ELBOW RIVER MARKETING LIMITED PARTNERSHIP BY ITS GENERAL PARTNER, ELBOW RIVER MARKETING CORP. Cross-Claimant
AND:	ELBOW RIVER MARKETING LIMITED PARTNERSHIP BY ITS GENERAL PARTNER, ELBOW RIVER MARKETING CORP. Defendant NATIONAL BIOFUELS GROUP PTY LIMITED Cross-Defendant

JUDGE:	BUCHANAN J
DATE OF ORDER:	12 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to Order 15(11) of the Federal Court Rules, the Plaintiff/Cross-Defendant produce for inspection by the Defendant/Cross-Claimant at the offices of the solicitors for the Plaintiff/Cross-Defendant on or before 26 February 2010 the documents listed in the Plaintiff/Cross-Defendant’s Supplementary List of Documents and Second Supplementary List of Documents and in unredacted form.
   
2. The Plaintiff/Cross-Defendant pay the Defendant/Cross-Claimant's costs of this application.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1808 of 2008

BETWEEN:	NATIONAL BIOFUELS GROUP PTY LIMITED Plaintiff ELBOW RIVER MARKETING LIMITED PARTNERSHIP BY ITS GENERAL PARTNER, ELBOW RIVER MARKETING CORP. Cross-Claimant
AND:	ELBOW RIVER MARKETING LIMITED PARTNERSHIP BY ITS GENERAL PARTNER, ELBOW RIVER MARKETING CORP. Defendant NATIONAL BIOFUELS GROUP PTY LIMITED Cross-Defendant

JUDGE:	BUCHANAN J
DATE:	12 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. These proceedings were commenced on 20 November 2008. They are now in my docket. The matter with which I am dealing this morning is a notice of motion filed by the defendant/cross-claimant (to whom I shall refer as the defendant) on 4 February 2010. The notice of motion seeks orders pursuant to O 15 r 11 of the Federal Court Rules for inspection of documents identified in a supplementary list of discovered documents and a second supplementary list of documents discovered by the plaintiff, filed in each case on 23 December 2009.
2. The notice of motion is supported by an affidavit sworn by Alistair Gavin Earles. Various exhibits to Mr Earles’ affidavit consist of correspondence passing between the parties about the subject matter of the present motion. It appears that inspection of the discovered documents has been sought but refused by the plaintiff upon various grounds. The ground upon which inspection of the documents continues to be resisted in connection with the present notice of motion is that they contain confidential information. No claim for privilege has been made in respect of any of the documents in either list; no application has, to this point, been made for confidentiality with respect to any of the documents. Inspection of the documents by legal representatives or relevant officers of the defendant would necessarily be subject, at this stage, to an implied undertaking that the contents not be used or disclosed, other than in connection with the present proceedings.
3. Order 15 r 6 requires that a list of documents shall, unless the court otherwise orders, be in accordance with form 22. Form 22 and O 15 r 6(7) require that a time for inspection be stated. Neither list complies with that requirement. Order 15 r 6(4) also requires that any claim for privilege be identified and that documents no longer in the possession, custody or power of the party giving discovery be identified. It seems clear from the structure and content of O 15 r 6 that it is to be expected, absent a claim for privilege stated in the list of documents, that inspection will be available, within seven days after service of the list, of those documents which remain in the possession, custody or power of the party giving discovery. I am satisfied that the requirements of O 15 r 6 have not been met in the present case.
4. Order 15 rule 11 provides that the Court may order a party to produce a document at a time and place specified in the order. No reason has been advanced, in my view, why such an order should not be now made in the light of the plaintiff’s failure to give inspection in accordance with the Federal Court Rules. If, at some appropriate time, a legitimate foundation arises upon which an order for confidentiality might be sought it will remain open for the plaintiff to make such an application. It is not necessary for me to say anything about the prospects of such an order being made with respect to any of the documents in either of the lists.
5. I propose to order that the documents be produced for inspection at the office of the solicitors for the plaintiff. Mr Scott who appears this morning for the defendant, has asked that inspection be granted within seven days. I propose to grant the plaintiff a little longer in which to comply with its obligations and with this order. I wish to make it clear, however, that I would not look with great favour upon a failure to grant inspection which did not comply with the order which I propose to make which, as things appear to me at the moment, should not have been necessary at all. I propose to allow the plaintiff 14 days in which to provide inspection of the documents.
6. I will make orders in the form sought in the notice of motion amended so that after the words “produced for inspection” in the second line, the following words will appear - “at the offices of the solicitors for the plaintiff on or before 26 February 2010”.
7. Costs of the motion were sought. Mr Madigan, who appeared for the plaintiff, correctly appreciated that there was no basis to resist such an order.
8. When I had dealt with the motion there were further submissions made about the future conduct of the proceedings. I indicated, as suggested by the plaintiff, that mediation should occur. I also varied earlier orders made by Lindgren J to accommodate current circumstances. If mediation is unsuccessful the matter will go to trial on dates to be fixed.
   

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 16 February 2010