The Appellant appealed a Decision by an Applications Judge that certain undertakings were not relevant or material to the matters in issue and did not require a response.

The underlying Action arose from a construction dispute. The Appellant had issued a request for proposal for the replacement of a swimming pool membrane liner, and the Respondent was awarded the contract, which stipulated a lump sum payment. Upon removal of the existing liner, structural issues were discovered, leading to a stop work order. The Respondent later invoiced an additional amount, which the Appellant disputed on the basis that the cost of materials was inflated. During the Questioning of the Respondent’s corporate representative, several undertakings relating to the cost of the materials were refused, leading to this Appeal.

The Court noted Rule 5.2, which establishes that for a question, record, or information to be considered relevant and material in the litigation, it must significantly assist to determine one or more issues raised in the pleadings or lead to evidence that could assist in this determination. Relevance is tied to the issues outlined in the pleadings. Materiality depends on whether the information can directly or indirectly prove a fact in issue.

Courts take a pragmatic approach and assess relevance and materiality broadly. The party seeking disclosure must demonstrate a plausible line of argument or provide some underlying foundation, but the burden is not intended to be onerous. At the production stage, Courts should avoid fine-tuning counsel’s arguments, aiming to prevent abusive discovery practices while allowing legitimate lines of inquiry.

Justice Loparco analyzed each refused undertaking individually and allowed the Appeal in part, directing the Respondent to answer two undertakings.