Absolute Analogue Inc v Sundance Resources Ltd

Case [2008] WASC 259

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ABSOLUTE ANALOGUE INC -v- SUNDANCE RESOURCES LTD [2008] WASC 259

CORAM:   LE MIERE J

HEARD:   17 JUNE, 22 JULY 2008

DELIVERED          :   14 NOVEMBER 2008

FILE NO/S:   CIV 1773 of 2007

BETWEEN:   ABSOLUTE ANALOGUE INC

First Plaintiff

DAVID PORTER
Second Plaintiff

AND

SUNDANCE RESOURCES LTD
Defendant

Catchwords:

Civil procedure - Discovery - Application for further discovery - Whether the documents sought to be discovered are relevant to any issue in the pleadings - Whether the obligation of the party giving discovery extends to it making enquiries and efforts to identify and disclose relevant documents that are not, and have never been, in its possession, custody or power - Turns on own facts

Civil procedure - Discovery - Application that defendant produce uncovered copies of discovered documents for inspection - Whether oath of party providing discovery of covered documents is conclusive that the covered parts of its discovered documents are irrelevant to any issue in question - Whether court should inspect documents - Turns on own facts - Rules of the Supreme Court 1971 (WA) O 26 r 10

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 10

Result:

Applications dismissed

Category:    B

Representation:

Counsel:

First Plaintiff                :     Mr M D Howard

Second Plaintiff            :     Mr M D Howard

Defendant:     Mr S P Crabb

Solicitors:

First Plaintiff                :     Tottle Partners

Second Plaintiff            :     Tottle Partners

Defendant:     Clayton Utz

Case(s) referred to in judgment(s):

Australian Independent Newspapers Ltd v John Fairfax Holdings Ltd (Unreported, FCA (Beaumont J), 22 June 1994)

British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709

Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60

CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19; (2000) 22 WAR 48

GE Capital Corporate Finance Group v Bankers Trust Co [1995] 1 WLR 173

Harris Scarfe Ltd (Receivers & Managers Appointed) in Liq v Ernst & Young (No 10) [2006] SASC 325

Holland‑Stolte Pty Ltd v Princess Theatre Holdings Pty Ltd (Unreported, VSC (Byrne J), 17 March 1993)

Jones v Andrews (1888) 58 LT 601

Lonrho Ltd v Shell Petroleum Co Ltd (No 1) [1980] 1 WLR 627

Midalco Pty Ltd v Simpson (Unreported, WASCA, Library No 6747, 5 June 1987)

Mulley v Manifold [1959] 103 CLR 341

Re McGorm; Ex parte Co‑operative Building Society of South Australia (1989) 20 FCR 387; (1989) 86 ALR 275

Sabre Corp Pty Ltd v Russ Kalvin's Hair Care Co (1993) 124 ALR 400

Solartech SBN BHD v Solarhart Industries Pty Ltd (Unreported, WASC (Sanderson M), Library No 970538, 22 October 1997)

SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 931

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

LE MIERE J:

Application for further discovery

  1. The plaintiffs apply for further discovery of specified classes of documents and for an order that the defendant produce uncovered copies of discovered documents for inspection.

Background

  1. The second plaintiff, Mr…

Details
AGLC
Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259
Case
[2008] WASC 259
Decision Date

CaseChat Overview and Summary

Absolute Analogue Inc commenced proceedings against Sundance Resources Ltd in the Supreme Court of Western Australia. The dispute centres around the adequacy of the discovery of documents by Sundance. Absolute Analogue applied for further discovery, contending that Sundance had failed to provide relevant documents. Additionally, Absolute Analogue sought an order for Sundance to produce uncovered copies of discovered documents for inspection, alleging that certain parts of these documents were relevant to the issues in the case.

The court was required to determine whether the obligation of the party providing discovery extends to making enquiries and efforts to identify and disclose relevant documents not in its possession. It also had to assess whether the oath of the party providing discovery, stating that certain covered parts of the documents are irrelevant, is conclusive, and whether the court should inspect the documents in question.

In dismissing the applications, the court found that the obligation of the party providing discovery does not extend to making enquiries and efforts to identify and disclose relevant documents not in its possession. The court also held that the oath of the party providing discovery is conclusive unless there is evidence to the contrary. Given that Absolute Analogue did not provide such evidence, the court deemed the oath conclusive. Furthermore, the court concluded that it was not necessary to inspect the documents to determine their relevance. Therefore, the applications for further discovery and for inspection of the uncovered parts of discovered documents were dismissed.

The court's final orders were that the applications made by Absolute Analogue Inc were dismissed.

Orders

Orders of the court

Applications dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.