Ward v C W McFarlane & Company [1917] HCA 3; (1917) 22 CLR 488 (6 March 1917)

HIGH COURT OF AUSTRALIA

Ward Plaintiff; and C. W. McFarlane & Company Defendants.

H C of A

6 March 1917

Griffith C.J.

Lee, for the plaintiff, in support of the application.

Griffith C.J.

An order for discovery of documents is not of course. The Court is required (Order XXIX., r. 8) both to exercise its discretion as to the documents of which discovery is to be made and to form an opinion upon the necessity of the discovery. I do not see my way to do either in the absence of the defendants. I do not think that the words "without any affidavit" in r. 8 mean that the application may be disposed of ex parte. Whether it may or not must depend on other considerations. The rule Audi alteram partem should be followed unless there are special reasons for disregarding it.

Summons to be taken out.

Solicitor for the plaintiff, H. M. Lee.