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Discovery and interrogatories

Ahmed El Hayek v Josslyn Vasic &c [2010] NSWSC 1498. Garling J.

48 As the submissions of the parties accepted, both of the rules in the UCPR which address discovery and interrogatories, namely, r 21.8 and r 22.1(3), require that in proceedings of this kind, the Court must be persuaded that there are special reasons for it to make an order for discovery and the answering of interrogatories.

49 The requirement for special reasons to be established is a restrictive one. It is intended to act as a limitation on the circumstances in which an order will be made.

50 Whilst it is clear that “special reasons”, as a phrase, is an inexact one, capable of some elasticity in interpretation: see Keating v South East Sydney Illawarra Area Health Service (Supreme Court of NSW, 7 July 2006, unreported) [eds: does not appear in either NSW Supreme Court records, nor austlii list] at [24]-[25] per Hall J, it is necessary for an applicant for an order to show that there is something unusual or different which takes the matter out of the ordinary course: Priest v State of New South Wales [2006] NSWSC 12 at [126] to [128] per Johnson J; Keating at [24]; Boscolo v Secretary, Department of Social Security [1999] 90 FCR 531 at [18] per French J (as his Honour then was).

51 Typically, but not exclusively, what will take the matter “out of the ordinary” is:

(a) an inability to obtain the requisite factual material without the exercise of the discretion;

(b) that the applicant is in a position of some disability or disadvantage;

(c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant;

(d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised.

52 In addition, as with all questions of discovery, an issue of relevance must be satisfied, namely that the material sought to be discovered, and the answers to interrogatories will relate to a fact in issue. There are also other discretionary considerations.















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