By and -

Key decisions

  • ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 2) [2023] FCA 172
  • Acciona Infrastructure Australia Pty Ltd v Zurich Australian Insurance Limited [2023] FCAFC 47


Notices to produce – principles governing notices to produce under FCR 30.28

ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 2) [2023] FCA 172 (Lee J)

In class action proceedings concerning alleged fraud in relation to collateralised debt obligations, the applicants sought to amend their pleadings. That prompted the respondents (‘S&P’) to file and serve a notice to produce pursuant to rule 30.28 of the Federal Court Rules 2011 (Cth) (‘FCR’) seeking documents regarding the applicants’ decision to introduce an additional fraud claim at that time.

The first two paragraphs of the notice to produce provided as follows:

To the First and Second Applicants

The First and Second Respondents require you to produce the following documents or things by no later than 5pm on Monday 20 February 2023: … (emphasis added)

In determining whether to set the notice to produce aside, his Honour Justice Lee observed (at [6]-[7]):

‘Apparently, a practice has arisen whereby parties have been advised that such a formulation conforms to the requirements of FCR 30.28 and documents can just be produced outside of a hearing between the parties in compliance with the notice.

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