O’Connor v O’Connor [2018] NSWCA 214
Court of Appeal of New South Wales
McColl & Macfarlan JJA; Simpson AJA
Preliminary discovery – appellants sought order for preliminary discovery – primary judge dismissed summons – appellants appealed in respect of two prospective defendants – respondents by Notice of contention contended primary judge’s decision should be affirmed – House v The King (1936) 55 CLR 499 – Brunninghausen v Glavanics (1999) 46 NSWLR 538 – rr5.3; 5.3(1) & 21.7 Uniform Civil Procedure Rules 2005 (NSW) – held: primary judge’s determination of application erroneously involved determination of claim’s merits – primary judge applied wrong test, namely “reasonable cause to believe” test, which was not required by r5.3 of the Rules – primary judge also erred in finding r5.3(1) did not extend to documents which were relevant to quantum only – appeal allowed
