Lippiatt & Co v Wain[2003] QCA 411

SUPREME COURT OF QUEENSLAND

PHILIPPIDES J:  This is an appeal from an interlocutory decision dismissing the appellant's application for disclosure of certain documents.  The disclosure sought was of employee record cards described as, "Employee record cards in respect of all employees of the plaintiff other than professional staff in respect of the period commencing 17 February 1986 and concluding 26 April 2001".

The appellant seeks the Court's leave to appeal, as it must do, under section 118 of the District Court of Queensland Act.  Leave to appeal from interlocutory decision is granted where the decision below involves an important question of law or justice. 

The matters raised by the appeal concern three issues.  Firstly, whether the particular documents in respect of which disclosure was sought are "directly relevant" to the matters in issue in the proceeding.  That involves a consideration of the term, "directly relevant", an issue examined by his Honour Justice Pincus in Mercantile Mutual Custodians Pty Ltd v. Village Nine Network Restaurants and Bars Pty Ltd.  The appeal also raises the correct interpretation of that decision.  Thirdly the issue is raised whether a disclosure ought to have been ordered in the interests of justice under rule 223. 

The appellant argues that the learned Judge at first instance erred in finding that the employee record cards of the respondent's other employees were not directly relevant to the matter in issue in the pleadings.  The pleadings disclose that the respondent alleges that the appellant altered her own employee record card on a number of occasions between March 1987 and September 2000 and that she did so without authority.

The appellant pleads that any alteration was made within her authority and with the authorisation of the respondent and in order to reflect a change in the relevant award or review of pay rates as approved by the respondent.  The appellant alleges that she did the same in respect of other staff of the respondent.

The appellant's contention is that disclosure is sought to prove that the process of amendment of her cards on some specified occasions by use of liquid paper was also used by her when amending cards of other employees.  The appellant submits that the respondent's pleading that liquid paper was used on some occasions amounts to an implication of fraud in respect of those occasions.  However the use of liquid paper is not in fact material to the respondent's allegation and is irrelevant to the issue of whether the alteration was made fraudulently.  It should also be noted that the defendant's pleading only alleges a parity with respect to one other specified employee and for a limited period.  Records of that employee have been disclosed.

The respondent alleges that it was untrue that the appellant's employee record card recorded her legal entitlement and that the alterations were made dishonestly and in bad faith and fraudulently so as to secure a rate of pay above that to which she was entitled.  In my opinion, it has not been demonstrated that any error of law was made by the learned judge at first instance in respect of his decision that the documents sought were not directly relevant to an allegation in issue in the pleadings. 

Furthermore, I am unable to discern any error in construing or applying the statement of principle of Justice Pincus in Mercantile Mutual Custodians, nor do I consider that any issue of uncertainty as to the effect of that decision arises.

As regards the third matter raised concerning rule 223, I do not consider that this appeal is an appropriate vehicle for examination of that rule.  On no view of the material does the application for disclosure fall within the prerequisites for the exercise of the power to make an order under that rule.

Accordingly I do not consider that a question of law or justice arises which warrants leave being granted.  I would refuse leave to appeal. 

JERRARD JA:  I agree.  The defendant's pleading describes specific agreement between the defendant and Mr Lippiatt whereby the defendant would receive a rate of pay at a particular level comparable with that of his secretary and a subsequent agreement whereby she would receive payment at the rate of a weekly award for a person working full-time although she was, to his knowledge and hers, working only some 28.75 hours per week.

The plaintiff in its reply denies any such agreement of either sort and has provided, by disclosure, the relevant cards for Mr Lippiatt's secretary.  Whilst I am quite willing to accept the submission made by Mr Newton of counsel with respect to his alternative ground of appeal mainly that the learned judge ought to have made orders pursuant to UCPR rule 223(1) and (4) because of that being required in the interests of justice.

And while I accept that that rule should be invoked where in serious cases a party would be deprived of the opportunity to put before the Court significant evidence to explain that party's conduct Mr Newton's submission has not identified how his client's being able to view the cards of other employees would provide her with significant evidence to explain her conduct. 

There was either the agreement with Mr Lippiatt or there was not regarding the particular levels of salary paid to her.  And despite Mr Newton's best endeavours he was unable to satisfy me that he could show that the learned judge was in error in not concluding or that this Court should conclude that reasonable opportunity to her to refute the allegation made against her necessitated in the interests of justice her being able to examine those other cards.

DUTNEY J:  The documents in relation to which discovery is sought have not been demonstrated to be discoverable, on even the broadest basis.

It is thus pointless to consider the width of the current rules, whatever their width they will not encompass these documents which cannot bear on, or assist in, an investigation of the issues of whether the challenged alterations which are admitted were made with the authority of the plaintiff.

The other use of the documents relied on was to reconstruct the period staff pay summaries which went to the bank and were not retained by the plaintiff.  No attempt has been made to obtain the documents from the bank nor is it submitted that there was any parity between the rate of pay of the appellant and anyone else, except for a limited period, Ms Williams.

The argument is that Mr Lippiatt should have noticed the higher amount shown to the appellant.  I regard this as a tenuous basis for ordering disclosure of source documents relative to other employees whose pay details are not said to be comparable.

I agree for the reasons expressed by the other members of the Court that the application should be dismissed.

JERRARD JA:  The order of the Court is that the application for leave to appeal is dismissed. 

...

JERRARD JA:  The applicant is ordered to pay the respondent's costs of and incidental to the application to be taxed on a standard basis.