Abourawi v Smerdon Training Pty Ltd (Ruling)
[2021] VCC 1501
•14 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-05791
| ADAM ABOURAWI | Plaintiff |
| v | |
| SMERDON TRAINING PTY LTD (ACN 089 974 818) | Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2021 | |
DATE OF RULING: | 14 October 2021 | |
CASE MAY BE CITED AS: | Abourawi v Smerdon Training Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1501 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Discovery – application by plaintiff seeking defendant provide sworn affidavit of documents, sworn answers to plaintiff’s interrogatories and further and better discovery
Legislation Cited: County Court Civil Procedure Rules 2008, r30.08(1)(B); Civil Procedure Act 2010, s47, s48; Corporations Act 2001 (Cth), s201A
Cases Cited:Liesfield v SPI Electricity Pty Ltd (Ruling No 3) [2014] VSC 346
Ruling: Plaintiff’s requests denied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Belmar | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr M Hooper | Russell Kennedy Lawyers |
HIS HONOUR:
Summary
1This is the plaintiff’s Summons application seeking that the defendant provide a sworn affidavit of documents, sworn answers to the plaintiff’s interrogatories and further and better discovery.
2Central to the issues regarding the defendant’s failure to provide a sworn affidavit of documents and sworn answers to interrogatories is who should be the person to swear or affirm the documents. The defendant cannot gain the assistance of a proper officer of the defendant corporation to swear those documents. The request for further and better discovery is, to some extent, also intertwined with the issues of the relevant deponent.
3These proceedings were commenced by Writ and Statement of Claim dated 23 December 2020. It is pleaded that the plaintiff was employed by the defendant and on 26 March 2017, sustained injury in the course of his employment.
4The factual circumstances giving rise to the injury are set out at paragraph 6 of the Statement of Claim, where the plaintiff pleads that he was required to mount and ride a dangerous young horse. Whilst doing so, the horse bolted, causing him to fall and sustain injury.
5In the Defence dated 5 February 2021 to paragraph 6 of the Statement of Claim, the defendant pleaded that save it admitted the plaintiff lodged a claim for compensation dated 20 April 2017, it otherwise denied the allegations.
6I was informed that the identity of the horse has not been established, which was agreed between the parties.
7In the defendant’s Interrogatories for the plaintiff dated 12 May 2021, the plaintiff was asked a series of questions relating to the identity of the horse and his knowledge of the horse.
8In the plaintiff’s Answers of 19 July 2021, he deposed that he did not know the horse’s name, that he believed it was an unnamed yearling, and that he had not ridden the horse before.
9The request for further and better discovery was made in the plaintiff solicitor’s correspondence of 14 May 2021 for the following documents:
(a) the horse’s details and/or file;
(b) the horse’s training log book;
(c) the horse’s registration papers and/or documents; and
(d) any newsletters, emails, letters and correspondence to the horse’s owner(s).
10For the hearing, I had:
(a) an affidavit of the plaintiff solicitor, Sarah Sorrell, affirmed 24 August 2021; and
(b) an affidavit of the defendant solicitor, Matthew Robert Stockdale, sworn on 22 September 2021.
11I note the defendant solicitor’s affidavit contained more material on the communication passing between the practitioners on these issues.
12I further note this matter has been mediated unsuccessfully and is listed for a post-mediation administrative mention on 5 October 2021. On that date, the parties are to inform the Court whether they are ready to proceed to trial.
The Defendant solicitor’s affidavit
13It is important to consider what the defendant solicitor has deposed to in his affidavit on the problems he has encountered.
14It is not in dispute between the parties that the defendant is a company that no longer trades. It is further not in dispute that while the defendant company remains registered with ASIC, it does not have any directors.
15Exhibited at MRS1, is a company search of the defendant undertaken on 26 February 2020. That search identifies that, as of 26 March 2017, there were two directors. They were Robert Wayne Smerdon (“Smerdon”), appointed 14 October 1999, ceasing 12 April 2018, and Michael John Symons (“Symons”), appointed 1 July 2008, ceasing 18 March 2019.
16The defendant solicitor has deposed to the following:
(a) That on 26 February 2021, he commissioned an investigation company to search for Smerdon. Upon obtaining details, he spoke to Smerdon on 22 March 2021. Smerdon informed him that the winding up of the defendant was being conducted by an accountant and former director of Aquanita Management Services, being David Trussler (“Trussler”). Further, Smerdon stated he did not have any of the defendant’s former documents, and they were either with his former accountant, Mutual Trust, or Trussler;
(b) On 13 April 2021, the defendant solicitors communicated with Michael Symons of Aquanita Racing and was informed that Mick Catanzariti (“Catanzariti”), Smerdon’s accountant, had assumed responsibility for finalising the affairs of the defendant, and books and records of the defendant had been provided to Catanzariti. Aquanita Racing was now known as Neerim Lodge Pty Ltd (“Neerim Lodge”). The defendant’s records may also be with Neerim Lodge;
(c) On 13 April 2021, the defendant solicitor was informed by Trussler that he would try and obtain documents from Aquanita Racing (Neerim Lodge) and that Catanzariti was from Ascot Partners. Trussler had only started working with the defendant in March 2018 and was not aware of any documents in existence at the time of the injury;
(d) On 21 April 2021, the defendant solicitor spoke to Catanzariti and was advised that he had never lodged anything for the defendant. Catanzariti said his client was Smerdon, that he does not have authority to sign for the business, nor does he hold any documents relating to the defendant. Further, he was not involved in the finalisation of the business, it had ceased training and he only looked after Smerdon’s affairs for the last twelve to eighteen months. Finally, Trussler advised the defendant solicitor that he should seek to obtain any further documentation from Smerdon;
(e) In May 2021, there were further discussions between the defendant solicitor and Trussler as to the identity of the horse, for which Trussler indicated he would make further enquiries. The defendant solicitor was advised on 25 June 2021, by Trussler, that he had been unable to find any further documents;
(f) On 3 August 2021, Damian Slocum of Neerim Lodge provided the defendant solicitor with the defendant’s KPI report and incident register, which was disclosed;
(g) The defendant solicitor attempted to communicate with Smerdon on several occasions and on 11 June 2021, asked Smerdon to swear the documents. Smerdon indicated he would provide his email details, which he has not provided, nor cooperated further regarding the swearing of the documents or provision or any additional material.
The Plaintiff’s submission
17It was submitted by counsel for the plaintiff that the defendant had not complied with the rules of the Court and was proposing to provide unsworn documents. The defendant continues to be a registered company and the most recent directors were Symons and Smerdon.
18It was submitted that reference should be made to s201A of the Corporations Act 2001 (Cth), which provides as follows:
“Minimum number of directors
(1) A proprietary company must have at least 1 director. That director must ordinarily reside in Australia.
… .”
19The suggestion that the defendant was a director-less company would not appear to conform with the corporations law. Further, the Court should make the orders sought, as there is nothing controversial in requiring the defendant to provide a sworn affidavit from a proper company officer.
20It was not a matter for the plaintiff to choose who was to swear the defendant’s Affidavit of Documents or Answers to Interrogatories as this was an obligation of the defendant in accordance with the Rules.
21Counsel for the plaintiff also referred me to Rule 30.08(1)(B) of the County Court Civil Procedure Rules 2008(“the Rules”) which provide power to the Court to direct who should answer interrogatories.
The Defendant’s submissions
22Counsel referred to the problems associated with the company not trading, but still being registered, and the difficulties of having no current registered director or person holding the position of the proper officer. The defendant had discovered all documents which the defendant solicitor had been able to obtain.
23It is impossible for the defendant to respond to the request for further and better discovery. This is because the essence of the request is to make discovery of documents relating to a horse which cannot be identified. It is not a question of whether the documents may have existed and are no longer in the defendant’s possession, as without the identity of the horse, you cannot identify what documents there may have been.
24On whom should swear the documents, it was submitted that the defendant solicitor could do no more than he has currently done. It was pointed out that this was an injury sustained in the course of employment – in other words, an industrial accident. It is known that the Victorian WorkCover Authority sits behind the defendant company and controls the litigation.
25To order that one of the last directors swear the documents had obvious problems, particularly when it was clear that they had failed to cooperate, and doubts arise about any evidence that person may give regarding the documentation and answers.
26If, however, the Court was minded to make an order directing a person to swear the Answers then it was possible that the WorkCover agent could swear the document.
27For the affidavit of documents, whilst no sworn affidavit had been provided, the defendant had complied with its obligations of discovery by providing all material available after all reasonable and proper searches had been conducted.
Consideration
28Rule 30.08 of the Rules sets out who is to answer interrogatories, and the Court has power to order who is to answer interrogatories.
29Rule 29.04 refers to the provision of an affidavit of documents but is silent as to who is to swear the affidavit and there is no equivalent provision as Rule 30.08(1)(b).
30The Civil Procedure Act 2010 (“the Act”), at s9, headed “Courts powers to further the overarching purpose”, states:
“(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a) the just determination of the civil proceeding;
…
(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
… .”
31Section 9(2) of the Act states that, for the purposes of ss(1), the Court may have regard to the following matters:
“(a) the extent to which the parties have complied with any mandatory or voluntary pre‑litigation processes;
(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
…
(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
… .”
32Section 47 of the Act is headed “Judicial powers of case management ꟷ overarching purpose and active case management”. Subsection (1) states:
“(1) Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made—
(a) in the interests of the administration of justice; or
(b) in the public interest.”
33Subsection (2) states:
“(2) A direction given or an order made under subsection (1) may include, but is not limited to, imposing any reasonable limits, restrictions or conditions in respect of—
(a) the management and conduct of any aspect of a civil proceeding; or
(b) the conduct of any party.”
34In Section 48 of the Act, headed “Court’s power to order and direct pre-trial procedures”, ss(2) states:
“(2) Without limiting subsection (1), a court may give any directions or make any orders it considers appropriate with respect to—
…
(e)defining issues by pleadings or otherwise, including requiring parties or their legal practitioners to exchange memoranda, or take other steps to clarify questions.”
35Williams, Civil Procedure Victoria, at paragraph 30.05.60, states:
“Interrogatories addressed to a corporation seeking answers from employees or agents other than the proper officer are generally inappropriate as being in unusual form. The court has a discretion to allow interrogatories directed to other persons under r 30.08. The circumstances in which the court may allow interrogatories of a corporation directly addressed to particular servants and agents would be exceptional. The court would need to be persuaded that the ordinary process of answer by the proper officer after making enquiries of servants and agents of the corporation would for an appropriate reason be ineffective … .”
36The commentary goes on to cite Liesfield v SPI Electricity Pty Ltd (Ruling No 3).[1]
[1][2014] VSC 346
37In Liesfield, Dixon J considered issues relating to who should answer interrogatories and said, at paragraph 30:
“The circumstances in which the court ought to exercise its discretion to direct that interrogatories not be answered by a proper officer but by a present or former employee or contractor will, in my view be exceptional in the sense of being circumstances outside of those in which a proper officer should answer interrogatories. The plaintiff needed to show that the process of discovery under Order 30, following the primary procedure specified, may not give effect to the overarching purpose in relation to civil proceedings. That inquiry has regard to the matters in ss 9, 47 and 48 of the Civil Procedure Act2010. I have not been persuaded by the plaintiff that the process of interrogation in accordance with the draft interrogatories submitted would not be effective unless the court directs under r 30.08(1)(b) that the persons nominated by the plaintiff answer the interrogatories.”
Reasons
38I propose to address each matter separately in my reasons.
Request for further and better discovery
39I consider that where a matter has progressed to this stage in the litigation process and the identity of the horse cannot be established, a further request for documentation on that horse appears nonsensical.
40To make such a request means it is either based upon a belief that all proper enquiries have not been undertaken by the defendant, or that there is material in existent which further enquiries will lead to establishing the horse’s identity.
41The defendant solicitor is on oath as to the enquiries he has undertaken to gain assistance from persons connected to the company, including past directors.
42The defendant has provided an unsworn Affidavit of Documents on what material has been identified through its enquiries. In practice, for discovery, a solicitor will usually seek documents which should be discovered from the client. That solicitor will provide guidance on what the issues between the parties are, and what material therefore would be discoverable. It would be unusual for a person with no legal training to know what material should be discovered without guidance.
43Here, it should not be contentious that the enquiries undertaken have been done by a solicitor on behalf of the statutory insurer. The model litigant principles apply to that insurer. Further, obligations of discovery exist under the Act which imposes obligations upon a solicitor and a party.
44The conundrum is what a solicitor should do when acting for an insurer where the insured is uncooperative. This is not an instance where the insurer could deny indemnity by way of a failure to cooperate. The statutory insurer is required to defend the proceeding for the named defendant here. Therefore, from the Court’s perspective, in determining compliance with the rules and obligations, it must be satisfied that the solicitor and insurer is compliant.
45There is no evidence before me to suggest proper enquiries were not undertaken. Rather, it is the contrary.
46The plaintiff’s solicitor’s affidavit, at paragraphs 5 and 6, deposes as to the request for further discovery by only referring to the letter of 14 May 2021 and the defendant solicitor response of 31 May 2021. That response advised they were making significant attempts to obtain the documents without luck.
47I note the plaintiff has not provided the Court with any evidence of its attempt to identify the horse. No subpoenas have been issued nor is there any evidence of attempts made by the plaintiff solicitors to undertake their own enquiries.
48I am therefore not persuaded that the request is reasonable or valid. The plaintiff’s request for further and better discovery is denied.
Answers to interrogatories
49The defendant solicitor has provided draft Answers to the plaintiff’s Interrogatories. The defendant has been unable to gain the assistance of a director of the defendant company to swear those Answers. The difficulties encountered have been identified.
50Rule 30.08(1)(a)(iii) of the Rules states:
“(1) Interrogatories shall be answered—
(a) where the party interrogated is—
(i) a natural person, by the party;
(ii) a person under disability, but that person or his or her litigation guardian, whichever is appropriate;
(iii) corporation, by an officer of the corporation or by any person duly authorised by it to answer; or
(b) by such person as the Court may direct.”
51I am satisfied that while the Court has power to make an order directing the last director of the defendant company to swear the Answers, this is not the appropriate order which should be made.
52The reason I say so is because of Rule 30.11, headed “Answers as evidence”. Sub-rule (1) states:
“(1) On an application in or at the trial of a proceeding a party may tender as evidence—
(a) one or more answers to interrogatories given by another party without tendering the others;
(b) part of an answer to an interrogatory without tendering the whole of the answer.”
53Sub-rule (3) states:
“Where the answer of a party interrogated is stated to be given on the basis of belief, and the answer is received into evidence, the Judge or the jury, as the case may be, shall give the answer such weight as the circumstances require.”
54The practical problem which the defendant solicitor faces and which may ultimately be a problem for the trial judge is, is the person who swore the Answer going to stand by the Answer as being true and correct? It is a problem by virtue of the fact that the director is not cooperative.
55Much will depend on whether the plaintiff seeks to tender the Answers as evidence.
56The provision of the draft Answers by the defendant is consistent with the obligations of the defendant to assist in identification of the issues and narrowing the issues in dispute. The provision of draft Answers cannot be criticised for those reasons.
57However, as I am satisfied an order should not be made directing a director to swear the Answers, I need to then consider whether an order should be made that another person swear the Answers.
58I am not satisfied there is such another person identified at this time, including an agent of the insurer. Rather, I believe this is a question that should be left for the trial judge for determination if the plaintiff seeks to tender an answer or the answers. The trial judge will be fully apprised with all the evidence and is in a better position to determine whether such an order should be made.
59If the plaintiff does not seek to tender an answer or answers, then the issue should not arise.
Affidavit of documents
60In certain circumstances the requirement for sworn answers to interrogatories, I consider, can be distinguished from the requirement for a sworn affidavit of documents. Discovery is part of an ongoing fact-finding process and is governed by obligations under the Rules. If problems in making discovery have been openly identified between the parties and to the Court, then I believe it is open for a court to make an order directing that an affidavit of documents is not required. I consider this is consistent with the Civil Procedure Act, in particular, the powers the Court has under s47 and s48 of case management and directing pre-trial procedures.
61The defendant solicitor has deposed to the problems encountered in trying to obtain discovery from the defendant. The solicitor has also provided an unsworn Affidavit of Documents setting out the documents that had been identified for discovery. There is no evidence before me that proper enquiries have not been undertaken, nor is there evidence before me to establish that there is other material available which has not been discovered.
62Between now and the trial, I am satisfied that the defendant solicitor will continue with his endeavours to attempt to obtain any further discoverable material, and if obtained, disclose it to the plaintiff. I am also satisfied that if the plaintiff, through its own enquiries, identifies material and where it may be obtained, the defendant solicitor will seek to obtain that material. That is all consistent with the practitioner’s obligations to cooperate under the Civil Procedure Act.
63Therefore, I am not prepared to make an order as sought by the plaintiff that the defendant provide a sworn affidavit of documents at this time.
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