Lifetime Securities (Australia) Pty Ltd v Formula Properties (Qld) Pty Ltd
[2003] QSC 412
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- Lifetime Securities (Australia) Pty Ltd v Formula Properties (Qld) Pty Ltd[2003] QSC 412
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Lifetime Securities (Australia) Pty Ltd v Formula Properties (Qld) Pty Ltd[2003] QSC 412
Lifetime Securities (Australia) Pty Ltd v Formula Properties (Qld) Pty Ltd[2003] QSC 412
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 8 December 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 September 2003 |
JUDGES: | Mackenzie J |
ORDER: | 1. Within seven (7) days the plaintiff deliver to the defendants a further amended list of documents and that the further amended list of documents:-(i) disclose all documentation between the plaintiff and the parties who have rendered the tax invoices set out in the table at paragraph 28 of the plaintiff’s further amended statement of claim, including all documentation show what work was completed by those persons in relation to them and what instructions and advices were provided to those persons to carry out the work in relation to them(ii) disclose all diary notes, minutes of meetings and all computer records of dealings between the plaintiff, or anyone on behalf of the plaintiff, and the first, second, third or fourth defendants, or anyone on behalf of the first, second, third or fourth defendants, directly relevant to allegations in issue between the parties(iii) disclose all internal emails, memoranda or other communications within the plaintiff relating to the work alleged to have been carried out for the defendants(iv) disclose any documents relating only to damages(v) mark all amendments to the further amended list of documents as required by rule 382 of the Uniform Civil Procedure Rules 1999 (Qld)2. Costs be costs in the cause |
CATCHWORDS: | PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION – GENERALLY – OF WHAT PARTICULAR DOCUMENTS – where defendants had requested copies of documents referred to in statement of claim – where plaintiffs offered and provided list of documents in form 19 format – where alleged deficiencies in plaintiff’s disclosure – where amended statement of claim filed – where amended list of documents also deficient – where no inspection of documents by defendants – where –defendants alleged lack of full disclosure – whether further disclosure by plaintiffs required – whether documents requested directly relevant to allegations in issue in pleadings PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY OF DOCUMENTS – ORDERS FOR FURTHER AND BETTER PARTICULARS – whether certain documents disclosed should be more properly particularised PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY OF DOCUMENTS – AFFIDAVIT OF DOCUMENTS – FORM AND CONTENTS – where amendments to further amended list of documents unmarked – where disclosed documents not marked chronologically – whether should be marked and so listed PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION – GENERALLY – OTHER CASES – where electronic disclosure proposed by defendant – where plaintiffs initially agreed – where later indicated had insufficient resources – whether disclosure should occur electronically Uniform Civil Procedure Rules 1999 (Qld), r 214, r 216, r 222, r 223, r 382, r 444 Fribance v Hall Contracting Pty Ltd (2001) 1 Qd R 11 Mansard Properties Limited & Anor v Builders’ Registration Board of Queensland, SC No 1509 of 1989, 30 June 1989 Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd (2001) 1 Qd R 276 Robson v REB Engineering Pty Ltd (1997) 2 Qd R 102 |
COUNSEL: | J Marr (sol) for the first, second, third and fourth applicants R J Anderson for the respondent |
SOLICITORS: | Dibbs Barker Gosling for the first, second, third and fourth applicants Toogoods Solicitors for the respondent |
[2] MACKENZIE J: This is an application by the defendants for further disclosure in an action concerning a commercial arrangement allegedly entered into between the plaintiff and the defendants. Broadly speaking the plaintiff’s case appears to be that there was a series of meetings involving the parties concerning the development of lands at East Brisbane. The proceedings are concerned with whether there was a joint venture agreement to develop the land, pursuant to which the plaintiff did certain work including making a development application to the Brisbane City Council or whether there was a lesser kind of arrangement to which at least some of the work done did not relate.
[3] To put the application in context, the relevant sequence of events was that after the defence to the original statement of claim was filed, copies of documents referred to in the statement of claim were requested by the defendants, invoking r 222 Uniform Civil Procedure Rules 1999 (Qld) as the basis for the request. When the documents were not received, a r 444 letter was sent. The plaintiff’s solicitors responded by referring to the large number of documents and offering to provide a list in form 19 format pursuant to r 214. Rule 214 envisages that once a list of documents has been delivered, copies are to be given on request being made by the other party. Rule 214 is subject to the power in r 223 for orders concerning disclosure to be made and to r 216 which inter alia is concerned with compliance by producing documents for inspection where it is inconvenient to deliver the documents under r 214 because of their number, size, quantity or volume.
[4] A list of documents was then provided by the plaintiff and a request for the defendants’ list of documents was foreshadowed. When the defendants’ solicitors began preparation of the defendants’ list, they made a proposal for electronic management of disclosure according to a protocol which they provided. They also suggested that the plaintiff’s disclosure was deficient in some of the respects raised in the present application. A r 444 letter was sent when the alleged deficiencies were not attended to. An application for disclosure was foreshadowed in a later letter.
[5] An amended list of documents was then sent. It was suggested that rather then have documents supplied on a piecemeal basis, it would be sensible for the defendants’ solicitors to arrange for inspection once the list had been perused and for copies to be requested after that inspection. A further amended statement of claim said by the plaintiff to be a consolidation of the statement of claim and the further and better particulars was also enclosed. However, the defendants asserted that it represented a complete overhaul of the plaintiff’s case. It was accepted by the plaintiff in submissions that it was different. The amended list of documents was alleged to be deficient in a number of respects, some of which are reflected in the present application.
[6] The duty of disclosure extends to documents directly relevant to allegations in issue in the pleadings. “Directly relevant” implies that the document is or contains something that tends to prove of disprove an allegation in issue (Robson v REB Engineering Pty Ltd (1997) 2 Qd R 102,102; Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd (2001) 1 Qd R 276, 282-3).
[7] At the date of the hearing the applicant defendants had not conducted any inspection of documents that had been disclosed. One of the points made by the respondent was that the application was in a sense premature in the circumstances. The reason advanced by the defendants for not inspecting the documents was that it would not be cost effective to undertake inspection until full up-to-date disclosure in the form of properly particularised list of documents had been provided by the plaintiff. Repetitive inspection after disclosure of additional documents should not be imposed upon the applicants.
[8] Turning to the particular matters in respect of which the further amended list of documents is requested, the first seeks documentation between the plaintiff and parties who had rendered tax invoices set out in paragraph 28 of the further amended statement of claim, including all documentation showing what work was completed by them and what instructions and advices were provided to them to carry out the work. Taken at its widest, I do not accept that the documents necessarily would all fall within the obligation to disclose. It may be accepted that tax invoices relating to the carrying out of work in connection with the project would be of a kind relevant to the obtaining of development approval. The direct relevance was said by the applicant to lie in their potential to prove or disprove whether the expenses were incurred in obtaining development approval. The instructions and advice would assist in ascertaining whether or not the persons rendering the invoices were engaged for the purpose. Limited in that way, the documents would appear to be directly relevant. Since it was not conceded that disclosure of them should be given, I am of the view that disclosure should be made of documentation between the plaintiff and the parties who have rendered the tax invoices set out in the table at paragraph 28 of the plaintiff’s further amended statement of claim showing what work was completed by those persons and what instructions and advices were provided to them to carry out the work.
[9] The second matter concerns all diary notes, minutes of meetings and all computer records of dealings between the plaintiff, or anyone on behalf of the plaintiff, and the first, second, third or fourth defendants, or anyone on behalf of the first, second, third or fourth defendants. It was submitted that this was relevant to the formation and terms of the agreement. In my opinion the category is expressed too widely. It assumes – and it may be true – that there would be no diary notes, minutes or computer records of other dealings than those directly relevant to the matters in issue. While I accept that diary notes, minutes and computer records of dealing directly connected with the project may shed light on the formation and terms of the agreement, to impose an obligation that goes beyond that would be to impose too onerous a obligation on the plaintiff.
[10] The next category in respect of which disclosure was sought was all draft versions of disclosed documents. Specific examples were given by the reference to draft versions of the development application (item 19 in the amended list of documents) and the IPA development application (item 21), and costing for the project described at items 27 and 38 as “bundled documents – costing for project”. The justification was said to be that it would relate to the issue of whether or not the development application allegedly submitted by the plaintiff was relevant to any agreement alleged by the plaintiff and whether the prior parity work that was done in support of the application was relevant to the agreement. At this point it is not clear to me that if such documents exist, those documents are directly relevant to matters in issue. I refuse that aspect of the application.
[11] The next category is all internal emails, memoranda or other communications within the plaintiff relating to the work alleged to have been carried out for the defendants. It was submitted that it was reasonable to apprehend that there would be such documents, not mere speculation. The direct relevance was said to be that they would shed light on the intentions of the parties in formation of the agreement; the alleged terms of the agreement; and damages claimed in the further amended statement of claim. It was submitted that it was another aspect of the issue whether the work alleged to have been done by the plaintiff in pursuance of the alleged agreement was in fact done in pursuance of it. In my view the documents should be disclosed.
[12] The next category became non contentious on the basis that, as I understand it, appropriate enquiries would be made with a view to resolving the issues by the parties without the need for an order.
[13] The next category is for disclosure of any documents relating only to damages. The basis for seeking disclosure is said to be that there was a specific request for disclosure of them by the applicants. The purpose of r 221 as a control upon the volume of material disclosed is discussed in Fribance v Hall Contracting Pty Ltd (2001) 1 Qd R 11. It is expressly stated in a letter dated 7 July 2003 from the defendants’ solicitors to the plaintiff’s solicitor that the client specifically required that all relevant documents be disclosed including those relating only to damages. Since the restraint that could otherwise apply on disclosure has been waived by the letter and damages appear to be one of the issues at the heart of the matter disclosure should be made.
[14] The next category is “…any additional relevant documents that are within the possession or control of the plaintiff”. That merely restates the kind of obligation that exists by virtue of the Rules. I do not propose to make an order in those terms.
[15] The next issue is that of proper particularisation of documents disclosed at items 113 to 120 of the plaintiff’s amended list of documents. Those relate to items variously described as folders containing estimates, plans and development approvals, correspondence and construction files containing building approval, development approval, finance and conveyancing, correspondence and quotes, and “civil”. There is also one item described as “bundle of diary entries” of the managing director of the plaintiff and another person who was connected with the negotiations. In the absence of inspection having been carried out, and notwithstanding the comments of the Full Court in Mansard Properties Limited & Anor v Builders’ Registration Board of Queensland (SC No 1509 of 1989, 30 June 1989) to the effect that where possible documents should be specifically and individually described rather then being described as a bundle or some other general description, I am not persuaded that at this point an order should be made for further particularisation or description of the collections of documents.
[16] There is also a request for an order that all amendments to the further amended list of documents be marked as required by r 382 UCPR. Part of the complaint in this regard is that the lists are not wholly consistent with one and other. It seems to me to be in the interests of efficient conduct of the preparation for trial that the Rule be complied with. There is also a request for listing of the disclosed document chronologically within each category. No submissions were directed towards this by the applicant. No authority for requiring that to be done was cited. Accordingly I will not make that order.
[17] As mentioned previously there was a proposal put to the plaintiff’s solicitors that disclosure be conducted electronically. The initial reaction of the plaintiff’s solicitors were that they were amenable to doing so. However, that position was subsequently resiled from on the basis that the firm did not have the resources to be able to commit to the very extensive requirements of the protocol proposed. While there is no operative practice direction in this regard the parties are urged to consider using technology for the purpose of more efficiently managing documents in cases. In the present case there is no evidence as to the cost of providing disclosure in electronic form. Where this is an issue as to whether an order involving electronic technology should be made, at least an indicative figure would be helpful. I am not prepared to order the parties to make disclosure electronically on the evidence available. However, that is not to say that I am not persuaded that generally in a large case, as this one is said to be, the use of technology to the highest degree possible is not the best way to conduct the matter. On the contrary I am persuaded that it is often capable of achieving savings in time and probably, ultimately, costs. The cogency of a suggestion that a party cannot cope with conducting a large matter by the use of technology which is now reasonably well developed will vary according to the facts advanced in the particular case in support of such inability.
[18] Since the outcome on various aspects of the application favours the applicant in some respects and the respondent in others I will make costs costs in the cause.
[19] The orders are as follows:
1. Within seven (7) days the plaintiff deliver to the defendants a further amended list of documents and that the further amended list of documents:-