Alanco Australia Pty Ltd v Higgins (No 2)

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FEDERAL COURT OF AUSTRALIA

Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063

Citation: Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063
Parties: ALANCO AUSTRALIA PTY LTD (ACN 107 954 610) v PAUL HIGGINS, DANIEL JAMES GOLDING, DASCO SALES PTY LTD (ABN 96 596 234 852), OCNALA PTY LTD (ACN 092 928 884), HAROVAL PTY LTD (ACN 141 081 307) and ALAN FARLEY GOLDING
File number: WAD 257 of 2010
Judge: MCKERRACHER J
Date of judgment: 14 September 2011
Catchwords: PRACTICE AND PROCEDURE – discovery – application for further and better discovery – principles governing discovery – whether application constitutes ‘fishing expedition’ – party seeking further and better discovery must establish that there is a document or class of documents that are directly relevant to the issues raised in the proceedings
Legislation: Federal Court of Australia Act 1976 (Cth) s 37M(1)
Federal Court Rules O 14 r 5A
Federal Court Rules 2011 r 20.12, r 20.14(2), 20.15
Date of hearing: Determined on the papers
Date of last submissions: 7 July 2011
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 40
Counsel for the Plaintiff: PJ Hannan
Solicitor for the Plaintiff: Foster Nicholson Legal
Counsel for the Second to Sixth Defendants: GD Cobby
Solicitor for the Second to Sixth Defendants: Clifton Tham

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 257 of 2010
BETWEEN:

ALANCO AUSTRALIA PTY LTD (ACN 107 954 610)
Plaintiff
AND:

PAUL HIGGINS
First Defendant

DANIEL JAMES GOLDING
Second Defendant

DASCO SALES PTY LTD (ABN 96 596 234 852)
Third Defendant

OCNALA PTY LTD (ACN 092 928 884)
Fourth Defendant

HAROVAL PTY LTD (ACN 141 081 307)
Fifth Defendant

ALAN FARLEY GOLDING
Sixth Defendant

JUDGE:

MCKERRACHER J

DATE OF ORDER:

14 SEPTEMBER 2011

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

Pleading

1.The plaintiff’s application for leave to amend the amended statement of claim (Leave Application) be adjourned for oral argument on a date to be fixed.

2.The second to sixth defendants do file any further submissions in opposition to the plaintiff’s Leave Application 14 days prior to that date.

3.The plaintiff do file any further submissions in reply to the matters raised in opposition to the plaintiff’s Leave Application 7 days following service under order 2.

4.The plaintiff do file submissions in support of its application for further particulars of defence within 14 days.

5.The second to sixth respondents do file any submissions in reply 7 days following service under order 4. 

Discovery

6.Within 28 days, the plaintiff give discovery to the second to sixth defendants of the following categories of documents in Schedule A:

(9)All run sheets showing physical calls made on customers by sales staff of the plaintiff from 1 July 2008 until 31 May 2011;

(12)Profit and loss statements for the plaintiff for the financial years ended 2008, 2009 and 2010;

(13)Monthly management accounts for the plaintiff without alterations of type in the management accounts presented in response to the order…

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Details
Case
[2011] FCA 1063
Decision Date

CaseChat Overview and Summary

In the case of Alanco Australia Pty Ltd v Higgins (No 2), the plaintiff sought leave to amend its statement of claim and further particulars of defence. The defendants opposed the application, arguing it was a fishing expedition. The court had to determine whether the plaintiff's application for further and better discovery was justified, and if it was directly relevant to the issues raised in the proceedings. The court considered the principles governing discovery, including whether the application constituted a fishing expedition.

The court found that the plaintiff had not established that the documents sought were directly relevant to the issues raised in the proceedings. It held that the party seeking further and better discovery must establish that there is a document or class of documents that are directly relevant to the issues raised in the proceedings. The court deferred giving discovery to the plaintiff until further orders, pending clarification of pleadings and after determination of the leave application and other discovery issues. The court also ordered that the plaintiff give discovery of certain documents to the defendants within 28 days and that the defendants give discovery of certain documents to the plaintiff after further orders are made.

The court's reasoning was based on the principles governing discovery and the need for the party seeking further and better discovery to establish that there is a document or class of documents that are directly relevant to the issues raised in the proceedings. The court deferred giving discovery to the plaintiff until further orders, pending clarification of pleadings and after determination of the leave application and other discovery issues. The court also ordered that the plaintiff give discovery of certain documents to the defendants within 28 days and that the defendants give discovery of certain documents to the plaintiff after further orders are made. The court's decision was based on the need for the party seeking further and better discovery to establish that there is a document or class of documents that are directly relevant to the issues raised in the proceedings.

The final orders made by the court included adjournment of the plaintiff’s application for leave to amend the amended statement of claim, orders for the plaintiff to clarify its pleading at 21B concerning the plaintiff’s creditors, and orders for the plaintiff to give discovery to the second to sixth defendants of certain categories of documents. The court also ordered that the second to sixth defendants give discovery to the plaintiff of certain categories of documents after further orders are made. The court's decision was based on the principles governing discovery and the need for the party seeking further and better discovery to establish that there is a document or class of documents that are directly relevant to the issues raised in the proceedings.

Orders

Orders of the court

Pleading

1. The plaintiff’s application for leave to amend the amended statement of claim (Leave Application) be adjourned for oral argument on a date to be fixed.

2. The second to sixth defendants do file any further submissions in opposition to the plaintiff’s Leave Application 14 days prior to that date.

3. The plaintiff do file any further submissions in reply to the matters raised in opposition to the plaintiff’s Leave Application 7 days following service under order 2.

4. The plaintiff do file submissions in support of its application for further particulars of defence within 14 days.

5. The second to sixth respondents do file any submissions in reply 7 days following service under order 4.

Discovery

6. Within 28 days, the plaintiff give discovery to the second to sixth defendants of the following categories of documents in Schedule A:

(9) All run sheets showing physical calls made on customers by sales staff of the plaintiff from 1 July 2008 until 31 May 2011;

(12) Profit and loss statements for the plaintiff for the financial years ended 2008, 2009 and 2010;

(13) Monthly management accounts for the plaintiff without alterations of type in the management accounts presented in response to the order of 29 May 2011 for the years ended 2008, 2009 and 2010;

(14) All documents referring to the plaintiff’s discontinuing use of the sales analysis software package known as ‘Phocus’; and

(15) All records of log in histories for the sales analysis software package known as ‘Phocus’ during the period from 1 June 2008 to 31 May 2011.

7. Within 14 days, the plaintiff clarify its pleading at 21B concerning the plaintiff’s creditors.

8. Within 28 days, if the pleading is maintained, the plaintiff give discovery to the second to sixth defendants of documents it will rely on in support of its case and any documents that are adverse to its case in the following category of documents in Schedule A:

(16) All documents relating to the competition experienced by the plaintiff pleaded in paragraph (ii) of the particulars to paragraph 21B of the amended statement of claim.

9. The issue of discovery of documents in categories 8 to 17 in Schedule D (Schedule D issues) be adjourned for oral argument to be heard in conjunction with the Leave Application.

10. On a date to be fixed after determination of the Leave Application and Schedule D issues and provision of discovery from plaintiff, the defendants give discovery to the plaintiff of the documents in the schedules annexed to these reasons as follows:

a. All categories of documents in Schedule B;

b. All categories of documents in Schedule C;

c. Categories 1 to 7 in Schedule D;

d. All categories of documents in Schedule E.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept the submission of the defendants that giving this discovery should be deferred. CONCLUSION Accordingly, the followings orders will be made now but additionally, I would expect the parties at a later time to agree on further orders, if necessary, to reflect these reasons. Pleading1.The plaintiff’s application for leave to amend the amended statement of claim (Leave Application) be adjourned for oral argument on a date to be fixed.2.The second to sixth defendants do file any further submissions in opposition to the plaintiff’s Leave Application 14 days prior to that date.3.The plaintiff do file any further submissions in reply to the matters raised in opposition to the plaintiff’s Leave Application 7 days following service under order 2.4.The plaintiff do file submissions in support of its application for further particulars of defence within 14 days.5.The second to sixth respondents do file any submissions in reply 7 days following service under order 4. Discovery6.Within 28 days, the plaintiff give discovery to the second to sixth defendants of the following categories of documents in Schedule A:(9)All run sheets showing physical calls made on customers by sales staff of the plaintiff from 1 July 2008 until 31 May 2011;(12)Profit and loss statements for the plaintiff for the financial years ended 2008, 2009 and 2010;(13)Monthly management accounts for the plaintiff without alterations of type in the management accounts presented in response to the order of 29 May 2011 for the years ended 2008, 2009 and 2010;(14)All documents referring to the plaintiff’s discontinuing use of the sales analysis software package known as ‘Phocus’; and(15)All records of log in histories for the sales analysis software package known as ‘Phocus’ during the period from 1 June 2008 to 31 May 2011.7.Within 14 days, the plaintiff clarify its pleading at 21B concerning the plaintiff’s creditors. 8.Within 28 days, if the pleading is maintained, the plaintiff give discovery to the second to sixth defendants of documents it will rely on in support of its case and any documents that are adverse to its case in the following category of documents in Schedule A:(16)All documents relating to the competition experienced by the plaintiff pleaded in paragraph (ii) of the particulars to paragraph 21B of the amended statement of claim. 9.The issue of discovery of documents in categories 8 to 17 in Schedule D (Schedule D issues) be adjourned for oral argument to be heard in conjunction with the Leave Application.10.On a date to be fixed after determination of the Leave Application and Schedule D issues and provision of discovery from plaintiff, the defendants give discovery to the plaintiff of the documents in the schedules annexed to these reasons as follows:a.All categories of documents in Schedule B;b.All categories of documents in Schedule C;c.Categories 1 to 7 in Schedule D;d.All categories of documents in Schedule E.

Ratio Decidendi

Legal Principle Established

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