Lleneva Pty Ltd v Elders Insurance Ltd
[2008] QSC 296
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- Lleneva Pty Ltd v Elders Insurance Ltd[2008] QSC 296
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Lleneva Pty Ltd v Elders Insurance Ltd[2008] QSC 296
Lleneva Pty Ltd v Elders Insurance Ltd[2008] QSC 296
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
DAUBNEY J
Mackay No 72 of 2003
LLENEVA PTY LTD | Applicant |
and | |
ELDERS INSURANCE LIMITED | Respondent |
BRISBANE
..DATE 03/11/2008
ORDER
HIS HONOUR: The immediate issue for resolution on this application is whether notice given by the applicant on the 26th of March 2008 pursuant to UCPR rule 389(1) of its intention to proceed remains efficacious. The respondent submits that the applicant has taken no step in the proceeding since giving that notice and that, as more than two years have elapsed since the applicant last took a step in the proceeding, the applicant requires leave to proceed under rule 389(2).
The applicant has sought such leave in the alternative in its application but contends that such leave is not required because two years have not yet elapsed since a step was taken in the proceeding.
On the 10th of February 2006 Dutney J made certain orders in these proceedings. Some debate erupted between the parties as to whether the terms of the order as taken out properly reflected the orders pronounced by his Honour. That debate see-sawed between the lawyers for the parties over most of 2006.
At the same time there was animated correspondence between the solicitors in relation to disclosure, with the respondent's solicitors contending that further disclosure was required from the applicant. On the 29th of May 2006 the applicant had served a fourth list of documents on the respondent and provided copies of the documents on that list in a sporadic way over the ensuing months.
On the 30th of November 2006 the applicant's solicitors wrote to the respondent's solicitors stating, inter alia:
"In relation to 'paper' documents our client has instructed us that the only further documents it has in its possession are various receipts in relation to its business (such as for the purchase of fuel and other business expenses). Our client further instructs us that the amounts of those receipts would be summarised in the BAS statements which have been disclosed. If your clients intend to assert that such receipts should be disclosed then please inform us of the basis of that assertion with reference to the proceedings.
Apart from the receipts our client has located 'electronic' documents which we are instructed are located on an old computer. A disc of those documents is attached to the original of this letter. Because of the fact that the documents use 'outdated software' our client has instructed us that it has not been able to print out these documents.
Our client will allow your clients a further three week period in which to complete any steps that they may wish to take with respect to disclosure. After that time our client will proceed with the matter to trial."
There was obviously a disc enclosed with the original of that letter because on 5 December 2006 the respondent's solicitors wrote to the applicant's solicitors saying:
"We refer to your letter dated 30 November 2006.
The disc supplied by your client is blank. It is returned with this letter.
We would be grateful if you would forward to us another disc containing copies of the documents that were intended to be provided to us."
The applicant's solicitors replied by a letter dated 13 December 2006 saying, relevantly,
"The disc supplied was not blank. We have had the disc checked and have been informed that it contains 8.4 Mb of information. As stated in our previous letter the documents contained on that disc used 'outdated software' and therefore our client has not been able to print out those documents.
As well as re-enclosing the original disc with the original of this letter we enclose a further disc which we understand is more compatible with an IBM computer. Unfortunately we are still unable to print out the documents on the disc. We understand that to open the documents on the disc the program MYOB Version 4 is required."
On the 5th of January 2007 the respondent's solicitors wrote to the applicant's solicitors in the following terms:
"We refer to your letter dated 13 December 2006.
We have not been able to access the documents recorded on the further CD-ROM supplied by your client.
With respect the data is of your client's financial records and it has an obligation to make available the means of accessing that data. It is not for either us or our client to incur the expense of purchasing the software necessary to read that data. Instead, your client has an obligation to make the data available in a form which is accessible.
We would therefore be grateful if your client would make the necessary arrangements to have the data printed or, alternatively, make available to us the software required to access that data."
The applicant's solicitors responded on 29 January 2007 saying:
"Thank you for your letter of 5 January 2007.
As was stated in our letter of 13 December 2006 all attempts by our client to print out the documents have failed. Our client is unable to print out the documents.
Our client's representative, Mr Avenell, is prepared to deliver the relevant computer to the offices of your town agent in Mackay so that the information may be viewed by your town agents. Unfortunately there is nothing further that our client can do to assist your client in that regard. Mr Avenell is not currently residing in Mackay but will be returning to Mackay on 20 February for a couple of days. If you wish Mr Avenell to bring the computer to the offices of your town agent on 20 February then please inform us by 12 February and confirm the time and person whom Mr Avenell is to meet at those offices.
Our client wishes to stress that the documentation is only being disclosed in an exhaustive attempt to satisfy any possible submission your clients may have regarding documentation which should be disclosed by our client. Our client does not intend to rely on any of the documents on the disc at trial."
It seems not in issue that the respondent did not take up this invitation to be provided with a computer which would enable their town agent to view the electronic documents stored on the disc.
The applicant submitted that the delivery of the disc of electronic documents by way of disclosure under cover of the letter of 30 November 2006 and the subsequent re-delivery of that disc, together with a reformatted disc, in mid-December 2006 and the offer at the end of January 2007 to deliver a computer to enable the disc to be viewed all constituted steps in the proceeding and that accordingly the two year period referred to in rule 389(2) has not yet elapsed.
The term "disclosure" under the Uniform Civil Procedure Rules means "the delivery or production of documents in accordance with" chapter 7 part 1 - rule 210 (underlining added). Chapter 7 part 1 provides for a number of ways in which disclosure may be undertaken:
- by delivery of a list of documents and provision, on request, of copies of documents mentioned in the list (rule 214)
- by inspection (rule 216)
- by one party producing the documents to the other (Rule 217).
I observe that rule 217(3)(a) relevantly provides that the party producing the documents must "provide facilities (including mechanical and computerised facilities) for the inspection and the copying of the documents". That rule has obvious practical application in cases where disclosure occurs by production at, for example, the producing party's solicitor's office but it is equally applicable in a case such as the present to compel the producing party to ensure not merely that a disc of documents is produced, as happened here, but also the means of reading that disc is provided to the party to whom production is made.
In Citicorp Australia Limited v. Metropolitan Public Abattoir Board [1992] 1 Queensland Reports 592, a case concerning order 90 rule 9 under the Rules of the Supreme Court, McPherson SPJ (as he then was), with whom Ryan and Dowsett JJ agreed, drew a distinction between the process of production of documents and the process of inspection of documents. His Honour said at pages 594-595:
"The process of inspecting documents, although in this context more debatable, seems to me to fall outside ordinary conceptions of a 'proceeding'. It is to be borne in mind that, although common usage sanctions reference to an 'inspection' of documents taking place between the parties, what is really being spoken of is production for inspection.
...
The conclusion I draw from all this is that production of documents for inspection is, but inspection itself ordinarily is not, a proceeding for the purpose of order 90 rule 9. Of course the two processes often take place simultaneously over a period of time; but it remains the act of production not inspection that qualifies as the 'proceeding' in terms of the rule."
This authority has been consistently applied in Queensland most recently by Jones J in Fairview Farming Co Pty Ltd v. Cairns City Council [2008] QSC 122. It seems to me that the production of the disc in November 2006, the production again of the disc and the production of the reformatted disc and the offer in January 2007 of the necessary computer to read those discs constituted and comprised steps taken in the production of documents under chapter 7 part 1 in this proceeding. That the applicant was required to make the computer available as part of the production process is clear, as I have said, from the terms of rule 217(3)(a).
Accordingly, in my view, the two year period under rule 389(2) has not yet elapsed and I consider that the applicant is still at liberty to take a further step in reliance on the notice it gave under rule 389(1) in March 2008.
...
HIS HONOUR: There will be the following orders:
- The notice given by the plaintiff to the defendant by a letter dated 26 March 2008 was an effective notice of intention to proceed pursuant to the rule 389(1) of the UCPR;
- The plaintiff be given leave under rule 164(2) of the UCPR nunc pro tunc to file the reply to the amended defence that the plaintiff filed in the Mackay Registry on 28 April 2008;
- Costs be costs in the cause.
...
HIS HONOUR: There will be an order in terms of the amended draft in that matter.
...
HIS HONOUR: There will be orders in terms of paragraphs 1, 2 and 5 of the application filed on 30 October 2008 in S9 of '04, Mackay Registry.