Apostolidis v Apostolidis
[2003] VSC 167
•16 April 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 2101 of 2001
| KIRIAKOS APOSTOLIDIS | Plaintiff |
| v | |
| IOANNIS APOSTOLIDIS & ANOR. | Defendants |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2003 | |
DATE OF JUDGMENT: | 16 April 2003 | |
CASE MAY BE CITED AS: | Apostolidis v Apostolidis & Anor | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 167 | |
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DISCOVERY – relevance – separate trial on issues of liability – discovery in relation to quantum
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Gillies | Leo Dimos & Associates |
| For the Defendants | Mr J.F. Styring and Mrs A. Robertson | David Tonkin & Associates |
HIS HONOUR:
This is an appeal from an order made by Master Kings on 8 April 2003 in which she dismissed an application by the plaintiff brought by summons dated 27 March 2003, seeking a further affidavit of documents from the defendants. The affidavit he sought would have incorporated all previous documents discovered and incorporated any further documents required to be discovered pursuant to the parties’ obligations for ongoing discovery. In particular, he sought discovery of records of prime entry including all documents comprising detailed cash receipts journals, detailed cash payments journals, general ledger, detailed payroll records and working papers associated with the preparation of the financial statements for all relevant years, including draft documents or for any period for which final or draft journals, ledgers, payroll records or working papers do not exist and the source documents from which the same would ordinarily be derived.
The Master dismissed the application essentially for the reason that the documents were not relevant to the trial of the issue which was to be before this Court for trial on 5 May 2003, such date having been fixed by order in December 2002. The Master’s order dismisses the summons and goes on to make ancillary directions related to the trial, and concludes with paragraph 7 stating: “The trial of the proceeding be on the issue of liability only.”
I have had the advantage of reading the written decision of the Master given on 8 April, in which it appears that the limited nature of the trial as between the parties was an assumed basis upon which the application for discovery was made. I am informed by Mr Styring that his junior, who was present before the Master, says that the question of the trial being on the issue of liability only was in fact raised by then counsel for the plaintiff, Mr B. Morfuni of Senior Counsel. Whatever the situation, the Master concluded her order in the way in which I have stated.
An examination of the Amended Writ, which was amended pursuant to the order of Habersberger, J. made on 8 November last year, shows that the plaintiff makes a number of claims. They are claims in the first instance for breach of a partnership agreement, but they proceed then to claims alleging a breach of fiduciary duty, again arising out of the partnership agreement, and claims that certain representations were made, which representations were false and misleading so as to give rise to causes of action under the Trade Practices Act (Cth) and/or the Fair Trading Act. Those representations included representations relating to the partnership agreement.
It is fundamental, it seems to me, that the first issue the Court will have to determine in this litigation is the issue of whether or not the partnership agreement pleaded in paragraphs 4 and 5 of the Amended Statement of Claim exists or existed. Unless the Court determines that issue in the plaintiff’s favour, the rest of the litigation will be of no consequence. Breaches of fiduciary duty and the Trade Practices claims depend on the plaintiff being successful in the allegations contained at least in paragraph 4 or paragraph 5 of the Amended Statement of Claim.
In support of his argument that there should be the discovery which he seeks, Mr Gillies, now counsel for the plaintiff, says that his client’s expert accountant cannot complete his witness statement unless he has access to all the prime accounting books of the defendant in order to show where a sum of $30,000 said to have been paid by the plaintiff has been expended. But evidence from an accountant as to what appears from an examination of books as to the tracing of a sum of money could not be relevant to the issues raised by paragraphs 4 and 5 of the Amended Statement of Claim.
The particulars of the partnership agreement pleaded by the plaintiff are simple. They say that the partnership agreement and its terms were partly oral, partly written and partly to be implied. The plaintiff relies upon documentation signed by the parties in order to obtain finance by way of an overdraft for the partnership business as constituting the written particulars to which he is referring. He says that there were conversations between him and the defendant in or about August 1990 which constituted the oral part of those particulars, and he then pleads implications arising from those documents and those conversations. Evidence from an accountant as to what he might have found in the books of two companies which are part of the whole scenario in this case, if one assumes a favourable result to the plaintiff in respect to paragraph 4 of his Amended Statement of Claim, could not be relevant to those issues and would not be admissible. Accordingly, the documents sought to be relied upon by the accountant cannot be admissible or relevant to the issue of whether or not the partnership exists. That is going to depend upon a relatively simple assertion by the plaintiff that it does and a denial by the defendant, which will have to be determined on an oral trial, and it is that oral trial that is set down for 5 May.
It might have been infelicitous of the Master to describe the trial of the proceeding as being on the “issue of liability” as she did, although the inference I draw is that there was no doubt in the minds of those appearing before her as to what that phrase meant in the context in which it finally showed itself in her order.
It follows from what I have said that the application for discovery which the plaintiff made by summons of 26 March 2003 is premature at least, and possibly completely irrelevant. Certainly the Master was not incorrect in refusing to grant it at the time at which she did. Whether it becomes relevant in the future, subsequent to the trial of the limited issue to which I have referred, will depend upon the result of that trial.
There were other matters contended for by the plaintiff in the summons of 26 March, but in so far as any of them were pressed before the Master they have not been pressed on this appeal, which confined itself to the issue of discovery.
In the circumstances, the appeal from the Master will be dismissed. The order that she made will be confirmed, save that order 7 will be rephrased as follows:
“That the trial of the proceeding be confined to the issues raised by paragraphs 4 and 5 of the amended statement of claim and paragraphs 4 and 5 of the amended defence of 12 November 2002.”
Mr Gillies seeks the vacation of that trial date, but does so on the basis that the accountant needed the time to compile his report. He complains that documents discovered recently and provided for inspection recently have made the accountant’s job more difficult and unable to be completed before the relevant date. At this stage I refuse Mr Gillies’s application to vacate the trial date. If on the trial date he makes out a case to the trial judge that any late discovery has in any sense hampered the presentation of the plaintiff’s case on the very narrow issues which have now been isolated, no doubt the trial judge will hear his application at that time to vacate the trial date. In the circumstances, at this stage, the application is refused.
The orders that I will make will simply be:
That the appeal from the order of Master Kings of 8 April 2003 be dismissed, save that order 7 of that order be amended to read:
“The trial of the proceeding be confined in the first instance to the issues raised by paragraphs 4 and 5 of the plaintiff’s amended statement of claim of 8 November 2002 and the defendants’ amended defence of 12 November 2002.”
(Discussion ensued re costs.)
HIS HONOUR: In the circumstances I will order that the plaintiff pay the defendants’ costs of the appeal.
(Discussion ensued.)
HIS HONOUR: I will change the date in paragraph 3 of Master Kings’s order to 12 noon on 22 April, which is next Tuesday. I will extend order 4 to 24 April, and the court books by 30 April and witness statements by 30 April.
I will add to the orders that I have already made an order that the Master’s order be confirmed, save that the date in paragraph 3 will become 22 April, the date in paragraph 4 will become 24 April, the date in paragraph 5 will become 30 April, and paragraph 7 will be amended in the way in which I have indicated.
I will order that this order be drawn up by the solicitors for the defendant and signed by a judge under Order 60.04 and that the plaintiff pay the defendants’ costs of the appeal.
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