The City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor [2011] NSWSC 1019 (2 September 2011)

Last Updated: 5 September 2011

Supreme Court New South Wales

Case Title:	The City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor
Medium Neutral Citation:	[2011] NSWSC 1019
Hearing Date(s):	1/09/2011
Decision Date:	02 September 2011
Jurisdiction:	Equity Division - Commercial List
Before:	Einstein J
Decision:	The materials sought to be tendered are admissible.
Catchwords:	EVIDENCE - Evidence of alleged inadequacy of discovery
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Procedural and other rulings
Parties:	The City of Sydney (Plaintiff) Streetscape Projects (Australia) Pty Limited (First Defendant) Moses Edward Obeid (Second Defendant)
Representation
- Counsel:	Counsel Mr T Jucovic QC, Mr S Climpson, Mr C Bova (Plaintiff) Mr S Couper QC, Mr J Gooley, Mr R Higgins (Defendants)
- Solicitors:	Solicitors Holding Redlich (Plaintiff) Colin Biggers & Paisley (Defendants)
File number(s):	2009/00298673 & 2010/0085353
Publication Restriction:

Judgment

The matter in contention

1. At the close of the plaintiff's case, the plaintiff sought to tender further documentary evidence. During this process, the plaintiff sought to have placed into evidence four folders relating to the ongoing process of discovery, together with two letters of 6 April 2011 and 16 August 2011.

2. The defendants contended that this documentary evidence should not be permitted.

3. After hearing argument, the Court admitted the materials indicating that short reasons would be provided when practicable. I now set out those reasons.

Reasons

4. The matter may be disposed of quite shortly. It concerns matters relating to occasions when the plaintiff sought to have orders made by the Court for further and better discovery. By consent, on 15 August 2011, the Court ordered further and better discovery in accordance with the rules. However notwithstanding those orders the defendants maintained that they had complied with all discovery obligations and had no further documents to produce.

5. The apparent relevance of the volumes of materials now sought to be placed into evidence, together with the above described letters is apparently twofold :

(1) First to permit the plaintiffs to place into evidence the material correspondence which is a matter of record; and
(2) Secondly to permit the plaintiff to cross-examine one or more of the defendants' witnesses in an endeavour to make good the proposition that the defendants had not honoured their obligation to make full discovery [an obligation which under the prevailing rules, continues to bind each party to make further and better discovery if and when it becomes plain that further documents have come to hand which must be discovered].

6. The plaintiff contends that the short chronology of relevance runs as follows :

(1) The city sought further and better discovery from a number of categories identifying the same in a letter of 11 August 2011;
(2) On the following day the city moved for orders for further and better discovery in accordance with the categories identified in the letter of 11 August 2011;
(3) In support of that application Ms Fernandez swore an affidavit and amongst other matters contends that she was concerned about the inadequate discovery on the basis of what she had seen in the discovery;
(4) The matter came before the Court by motion and the Court made short minutes of order by consent which required the defendants giving further and better discovery of any documents falling within the above described categories and to the extent that there were additional documents that had not already been discovered those documents were to be provided by 18 and 19 August 2011;
(5) A further letter was written by the solicitors acting for the city on 17 August 2011 making a number of points in relation to what was said to be incomplete discovery;
(6) On 22 August 2011, the defendants responding to the plaintiff's letter of 17 August 2011, contend that their client has given general discovery of its records and has no further documents to produce.

7. In those circumstances the plaintiff claims that it has exhausted all avenues available to it in seeking further and better discovery and denies that there is a requirement that it is required to put on a further notice of motion. Apparently, the plaintiff will seek to cross-examine on some of the above events and/or to comment in final address on the state of the defendants' discovery obligations.

8. In my view the materials sought to be tendered by the plaintiff are admissible.

**********