PRACTICE AND PROCEDURE – COMMENTARY ON ASSIGNMENT DUE 20/1/2014
A relevant case on UCPR 5.3 is the NSW Court of Appeal decision in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506.
Young JA at page 543 says that there are jurisdictional questions and considerations of discretion.
McColl JA looked at the jurisdictional questions, especially the element that the applicant has to establish that “the applicant may be entitled to make a claim for relief”. At paragraphs 46-52 McColl JA sets out the 6 key principles relevant to this issue.
In making submissions you must cover each of these principles, and why they are satisfied ( or at least, are not adverse) on the facts – for each of the 3 respondents. There are differences – against the employees, and more so Phil Smith, an argument for restraint of employment trade, as against the three, confidential information.
Then, in relation to reasonable inquiries, address, for each of the 3 respondents, why the Court should be satisfied. McColl JA at page 528 looks at the test as to what constitutes reasonable inquiries.
Then on a submission that for each of the 3 respondents, the jurisdictional issue has been satisfactorily met, move on to why the Court should exercise its discretion. Young JA discusses the principles at paragraphs 135 – 138. McColl JA considers this question at paragraph 65.
It is obvious from the facts of the assignment that the applicant, once having made a decision to bring proceedings, will be seeking urgent interlocutory injunctive relief to reduce continuing damage. Young JA at paragraph 158 and McColl JA at paragraph 105 are looking at interlocutory injunctions in the context of defamation - this can be distinguished on the facts in the assignment.
Then, very briefly, make submissions why the various documents sought ought to be discovered.
Some answers relied on decisions of the Federal Court, without referring to those of the NSW Supreme Court. In the Supreme Court of NSW it is important to refer to relevant decisions.