RE Spence & Co Pty Ltd v Tatton Developments Pty Ltd
[2006] QDC 350
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- Unreported Judgment
- RE Spence & Co Pty Ltd v Tatton Developments Pty Ltd[2006] QDC 350
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RE Spence & Co Pty Ltd v Tatton Developments Pty Ltd[2006] QDC 350
RE Spence & Co Pty Ltd v Tatton Developments Pty Ltd[2006] QDC 350
DISTRICT COURT OF QUEENSLAND
CITATION: | RE Spence & Co Pty Ltd v Tatton Developments Pty Ltd [2006] QDC 350 |
PARTIES: | RE SPENCE & CO PTY LTD trading as SPENCE DOOR PRODUCTS (ACN 004 519 331)Plaintiff AND DEREK JAMES TATTON & DELWYN GAY TATTON trading as JIM TATTON DEVELOPMENTS(Defendant) |
FILE NO/S: | CLD52/02 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Maroochydore |
DELIVERED ON: | 26 September 2006 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 22 September 2006 |
JUDGE: | Judge J.M. Robertson |
ORDER: |
|
CATCHWORDS: | Application seeking further disclosure – whether documents sought are “directly relevant to an allegation in issue” Legislation: Uniform Civil Procedure Rules¸ r. 211 |
COUNSEL: | Mr M.D. Ambrose (for the respondent/plaintiff) Mr G. Beacham (for the applicant/defendant) |
SOLICITORS: | SJP Law Solicitors (for the plaintiff) Sykes Pearson & Miller Solicitors (for the defendant) |
- [1]The defendant is seeking further disclosure from the plaintiff of “documents relevant to the time ordinarily required by (the plaintiff) to order and obtain the wood and the time ordinarily required by (the plaintiff) to manufacture, supply and install similar product.”[1] The plaintiff says that these documents are irrelevant to any disputed issue in the proceedings and that the defendant’s application is an impermissible “fishing expedition”.
- [2]The claim arises out of the supply of joinery by the plaintiff to the defendants for a unit development being undertaken by the defendants at Sunshine Beach in 2001. The plaintiff alleges that the defendants have failed to pay the balance of the agreed contract price for the supply of the joinery, and the defendants say some of the work was defective and have counterclaimed seeking damages for delay and breach of contract.
- [3]For a claim and counterclaim involving relatively modest monetary sums, the file has already grown to an alarming size with a number of applications by both parties.
- [4]The dispute here concerns a discrete issue raised in the pleadings. The defendant alleges (in paragraph 10A of the further Amended Defence and Counterclaim filed 1 August 2005) that the plaintiff agreed pursuant to the contract to supply and install the joinery progressively in accordance with a fixed time table. The plaintiff’s disputes this and pleads (in paragraph 5(d) of its further Amended Reply and Answer filed on 26 August 2005) that it did not and would not have agreed to such a time table as:
“(i) for a job of the size at issue a lead in time of approximately 6 to 8 weeks is ordinarily required to order and obtain the wood to be used in the manufacture of the finished product; and
(ii) a further period of up to 12 to 14 weeks is then ordinarily required to manufacture, supply and install the finished product at the premises.”
- [5]A similar issue is addressed in paragraph 5C(d) and 5G(b)(iv) of that pleading. The plaintiff provided further and better particulars of that paragraph on 6 April 2006 and it is not now asserted that these particulars are inadequate.
- [6]In support of its case the plaintiff intends to rely on the evidence of a quantity surveyor John Lowry whose report dated 5 October 2005 is Exhibit DP2 to the affidavit of the defendant’s solicitor filed in support of this application. In that report Mr Lowry expresses opinions relevant to the issue in dispute and the plaintiff says that it will seek to rely on his evidence (and presumably similar evidence from the plaintiff itself) in support of its pleading.
- [7]What the defendant now seeks is disclosure of documents relating to the issue “on jobs similar to the one in question” [2]in June July or August 2001. The r. 444 letter sent by the defendants solicitors to the plaintiff’s solicitor on 22 August 2006 identifies the request in these terms:
“We would have thought that it would have been relatively easy for your client to identify jobs it undertook in the period June, July and August 2001 and indicate the value of the job.
If your client provides such a list, disclosure would then be restricted to 4 jobs selected by us. We would require your client to indicate which jobs it considers are similar to the job in question and agree to answer our reasonable queries in respect of the jobs so that we can select the 4 jobs.”
- [8]The plaintiff says that the defendant is on a fishing expedition and that documents sought are not “directly relevant to an allegation in issue in the pleadings”.
- [9]As the plaintiff is a national company, any such documents, if they still exist, would be archived in Melbourne, and, at this stage, no search has been undertaken to see if there are any such documents.
- [10]The duty of disclosure contained in r. 211(1)(b) Uniform Civil Procedure Rules is in similar terms to O35 r.4(1)(b) of the now superseded Supreme Court Rules which applied in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 and Robson v REB Engineering [1997] 2 Qd R 102.
- [11]As Pincus JA observed in the former case at 282-3:
“The Law in this State differs from that laid down by Brett L.J. in Compagnie Financiere du Pacifique vPeruvian Guano Co. (1882) 11 Q.B.D. 55, in that if a document is not “directly relevant” to an allegation in issue it need not be disclosed. It is not enough, to justify an order for disclosure, to hold the opinion that “it is reasonable to suppose [that the document] contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.” Nor, if a document sought is not directly relevant to an allegation in issue, does it matter whether or not it “is a document which may fairly lead [the party requiring discovery] to a train of inquiry, which may have either of these two consequences”: see per Brett L.J. at 63.”
- [12]The annotations to the Rule at page 9198 of the Civil Procedure in Queensland Vol. 1. state that the meaning of “directly relevant” held by Demack J. in Robson was approved in Mercantile Mutual, but I can find no support for that proposition in the case; however I am content to adopt his Honour’s definition for the purposes of this application.
- [13]As Pincus JA observed in Mercantile Mutual r. 211(1)(b) constitutes a deliberate narrowing of the duty of disclosure from that which existed at common law.
- [14]In that case, the documents sought were not disclosable for other reasons but it is clear that it is insufficient merely for the party seeking disclosure to satisfy the court that the documents might, either directly or indirectly, enable the party seeking disclosure to advance its own case or damage the case of its opponent.
- [15]Mr Beacham in his usual efficient and polished way attempted to get around this problem by relying on Demack J’s conclusion in Robson.
- [16]The headnote states that his Honour held:
“…where an allegation of loss of earning capacity by the plaintiff was in issue in his personal injuries action against his employer, the (defendant employer) would be ordered … to disclose to the plaintiff its wage records on and from the date of the accident relating to other employees comparable to the plaintiff.”
- [17]Mr Beacham sought to draw an analogy to other jobs in this case with other employees in that case.
- [18]The flaw in the argument is revealed when the judgment of his Honour is read in full.
- [19]The plaintiff had sought disclosure of these documents as being directly relevant to a number of different facts in issue including an allegation that at the time he fell there was rubbish present which contributed to his fall, which the defendant had not admitted. His Honour held (by application of the more restrictive approach) that the documents sought were not directly relevant to that allegation in dispute, but were directly relevant to the economic loss issue.
- [20]In my view, the same reasoning applies here.
- [21]The real fact in issue relates to the terms of the agreement that existed between the parties and no-one suggests that documents relating to other jobs not connected with the defendant are directly relevant to that disputed fact. If such documents exist, and I infer that they might, they may assist the defendant in undermining the plaintiffs case on this issue but that is not sufficient.
- [22]The defendant can call its own evidence relating to industry norms on this issue if it so desires; but it has fallen well short of satisfying me that such documents are directly relevant to the disputed allegation.
- [23]The application is dismissed with costs to be agreed or assessed on the standard basis.