CIVIL PROCEDURE — Where the only issue remaining in the proceedings is to determine the quantum of an account of profits or equitable compensation against the defendants who have been found to have breached fiduciary duties or knowingly assisted in such breaches — Where discovery orders made against defendants in December 2025 — Where eighth and ninth defendants failed to comply with discovery orders and remain in default, asserting that documents ordered to be discovered are not relevant, without having sought leave to appeal from the discovery orders — Where first and second defendants are in the process of complying with discovery orders belatedly — Application by each of the eighth and ninth defendants and first and second defendants for leave to file evidence responsive to quantum evidence prepared by plaintiff without the benefit of any discovery and served on defendants — Civil Procedure Act 2005 (NSW) ss 56-61 — Inherent jurisdiction — Abuse of process — Whether first and second defendants should be precluded from serving responsive quantum evidence by reason of their historical non-compliance with the discovery orders which they are in the process of rectifying — Whether Court should exercise power under s 61 of the Civil Procedure Act 2005 (NSW) or inherent power to prevent abuse of its processes to preclude eighth and ninth defendants from serving responsive quantum evidence in circumstances where they remain in default of the discovery orders and that default has deprived the plaintiff of the ability to make an informed election between remedies and the ability to pursue the remedy of an account of profits against the eighth and ninth defendants
Quick Take
1A party that deliberately refuses to comply with discovery orders it has neither appealed nor sought to stay, substituting its own view of relevance for the Court's determination, may commit an abuse of process if it simultaneously seeks to use the Court's evidentiary procedures. This is particularly so where the non-disclosure deprives the opposing party of the information needed to elect between an account of profits and equitable compensation.
2Where liability has already been determined, so that a stay or strike-out would not serve the overriding purpose, the Court may, under its inherent jurisdiction and/or s 61(3)(e) of the Civil Procedure Act 2005 (NSW), preclude a defaulting party from adducing responsive evidence while still permitting it to cross-examine and make submissions. Such an order is not punitive but a proportionate response to prevent abuse of process.
3A party's past default in discovery that it is actively and expeditiously rectifying does not, on the facts, warrant preclusion from adducing evidence; prejudice from the delay may instead be addressed by an order for wasted costs.
