Gourlay v Stewart[2011] QDC 211

DISTRICT COURT OF QUEENSLAND

1. [1]
   This an application for an order that the first defendant disclose two certain categories of documents, namely, personal bank statements within a certain period and personal telephone records within a certain period. It is alleged that those documents are subject to disclosure under the general rule requiring a party to disclose documents which are directly relevant to a matter in issue on the pleadings: r 211(i)(b).

2. [2]
   The case the plaintiffs make against the first defendant is that she made representations to the plaintiffs, which representations were made in trade and commerce and were made without reasonable grounds to make the representations, and because they were representations as to a future matter therefore they were misleading and deceptive.

3. [3]
   It is alleged that representations were also made by a company and by someone who was initially not a defendant but was subsequently made a second defendant, and against whom default judgment has been obtained.

4. [4]
   It was also alleged that the first defendant was knowingly concerned in the contravention of the Trade Practices Act by the company.  For the moment I will pass over the question of whether paragraph 19 of the statement of claim is adequate pleading of a claim against a person for being knowingly concerned with a contravention of the Trade Practices Act by a company, but for present purposes it is sufficient to note that nowhere in the statement of claim is any telephone representation by the defendant to the plaintiff relied upon.

5. [5]
   It is alleged in the statement of claim that the defendant was a director, agent and/or servant of the company at the relevant time. The defence in paragraph 13 admits that the first defendant was a servant or employee of the company but denies that she was a director at any material time.  However, it disputes that she was knowingly concerned in any contravention of the Trade Practices Act by the company.  That matter is therefore in issue on the pleadings.

6. [6]
   In relation to the representations, the defendant denies that she made the representations or at least denies that she deliberately and knowingly made any representations. There is nothing in the defence which suggests that the content of the personal banking records of the first defendant or the personal telephone records of the first defendant during the relevant period will be relevant for any of the defences that the first defendant would seek to make out.

7. [7]
   It was submitted that it would be possible to tell from the fact that money had been deposited into the personal bank account of the defendant by the company that she was associated with the company and in that way support the allegation that she was knowingly concerned in the contravention by the company. That proposition, I think, merely needs to be stated to be rejected. The mere fact that there was money being paid into a bank account doesn’t seem to me to have anything whatever to do with the question of whether she was knowingly concerned in any breach of the Trade Practices Act by the company, but particularly in circumstances where it is admitted that she was an employee of the company it will be unsurprising to see some deposits into her bank account.

8. [8]
   The suggestion that the size of the deposits could be in some way indicative of knowledge of the affairs of the company and, hence, relevant to whether she was knowingly concerned is, I think, well into the realms of speculation.

9. [9]
   As to the telephone records, there is nothing in the pleading to suggest that anything that may appear in her personal telephone records would be relevant to anything in the case. There is also no evidence that the plaintiffs, as part of their case, propose to lead evidence of any particular telephone conversations with the defendant which would be relevant to some matter in issue in the pleadings, and in that way make relevant evidence to show that such a conversation could have occurred, in the sense that the telephone records of the first defendant show the existence of a conversation and provide some support for the evidence of a witness for the plaintiffs. The matter is described in the submission on behalf of the plaintiffs as essentially an exercise of looking to see whether the telephone records turn up something which might be of assistance to demonstrate that there had been some contact.

10. [10]
    I would have thought that the appearance of the telephone number of the plaintiffs in the telephone records would have been of little significance in circumstances where a possible alternative explanation for the number other than a telephone call by the first defendant to the plaintiffs is readily apparent from the circumstances.

11. [11]
    But even apart from that, the mere fact that a telephone call was made would prove nothing about the contents of the call. Again, it strikes me as being something which could not be, or at least is not shown on the material currently before me to be, directly relevant to a matter in issue on the pleadings.

12. [12]
    The test for disclosure under the UCPR is much narrower than the traditional Peruvian Guano test.  It is confined to matters which are directly relevant to a matter in issue in the pleadings.  That would be something which contains an admission which relates to a matter in issue or which, in itself, involves proof or supports proof as direct evidence of a matter in issue.

13. [13]
    Alternatively, a document could be directly relevant to a matter in issue in the pleadings as being admissible as part of a circumstantial case tending to support the existence of that fact, but it seems to me that the documents sought to be obtained on this occasion have nothing to do with either of those things. The question of what matters are in issue in the pleadings is one which has to be ascertained from an examination of the pleadings, and the question of direct relevance is intended to confine disclosure to those documents which tend to prove or disprove the truth of a particular allegation.

14. [14]
    In this respect, I understand that the authority in relation to this is Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102.  That was concerned with the test where it previously appeared in the rules of the Supreme Court.  The same test appears now in the UCPR.

15. [15]
    I do not understand Daubney J in Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd [2008] QSC 317 as putting some gloss on that test but, if he was seeking to do so, then with respect I will not adopt that approach.  In my opinion the rule means what it says.  It is intended to confine the scope of disclosure within reasonable limits and those limits do not extend to what is sought by the plaintiff in this case, so the application is dismissed.