Ashton v Pratt

[2010] NSWSC 1376

CITATION:	Ashton v Pratt [2010] NSWSC 1376
HEARING DATE(S):	22 October 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	22 October 2010
DECISION:	Plaintiff to give defendant discovery as per categories specified, limited to documents relevant to facts in issue in the proceedings. Leave to further amend defence refused. Defendant to give plaintiff discovery as per the categories specified, limited to documents relevant to facts in issue in the proceedings.
CATCHWORDS:	PROCEDURE – Discovery and interrogatories – Discovery and inspection of documents – Discovery of documents – The application and the order – whether categories requested relevant – undesirability of framing categories as if subpoena rather than by reference to issues – PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Pleadings – Summary disposal and stays – whether application for summarily dismissal under r 13.4(1)(c), striking out under r 14.28, and stays under (NSW) Civil Procedure Act 2006 s 67 should be pleaded by way of defence or raised on motion.
LEGISLATION CITED:	(NSW) Civil Procedure Act 2005, s 67 (NSW) Uniform Civil Procedure Rules 2005, r 13.4(1)(c), r 14.28(1)(c)
CATEGORY:	Procedural and other rulings
CASES CITED:	Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
PARTIES:	Madison Ashton (plaintiff) Jeanne Pratt (defendant)
FILE NUMBER(S):	SC 10/056518
COUNSEL:	F M Douglas QC w R K Newton (plaintiff) M Henry (defendant)
SOLICITORS:	David Legal (plaintiff) Arnold Bloch Leibler (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday, 22 October 2010

2010/56518 Madison Ashton v Jeanne Pratt

JUDGMENT (ex tempore)

1 HIS HONOUR: Before the Court are two Notices of Motion by which each party seeks an order for discovery of various categories of document against the other.

Defendant’s application

2 The defendant’s notice of motion filed on 18 August 2010 seeks an order that the plaintiff give discovery of documents specified in paragraphs 1 to 35 of an attached schedule A. In fact, some of the paragraphs in schedule A – specifically, paras 22, 32 and 34 – are stated in the schedule to be not pressed and there is dispute only in respect of some of the remaining categories, namely, paragraphs 6C, 11 to 18 inclusive, 21, 24 to 29 and 33.

3 In respect of the disputed paragraphs other than paragraph 33, the only objection taken is to their scope in time, arising from the application to them of the, "relevant period", which as defined in the schedule, which is from 1 January 2002 to the present. The plaintiff contends that those categories should be limited to documents brought into existence between November 2003 to February 2005, which period coincides with the alleged relationship between the parties.

4 In the amended statement of claim, the plaintiff relevantly alleges that "at all material times up to about November 2003" she was a professional escort [paragraph 4]; that she and the defendant made an agreement, which included terms that he would pay the rent on her rented apartment of $36,000 per annum, and her travel expenses in relation to trips planned by her in connection with her then fashion accessories business estimated to be $30,000 per annum [paragraph 5(c), (d)]; that pursuant to the agreement, she ceased to provide escort services for others [paragraph 7]; that by making the relevant offer, the defendant induced her inter alia, to give up her "remunerative escort business" [paragraph 15]; that, subsequently, at his request, she "ceased her fashion accessories business" [paragraph 16]; and that in reliance on the defendant’s offer or representations, she suffered a detriment "in giving up her escort business and her fashion accessories business at the request of the defendant" [paragraph 17]. These allegations are traversed, by non-admissions, in the defence. She claims damages for breach of contract, and/or specific performance.

5 There are, therefore, issues in the proceedings as to: (1) whether the plaintiff, at relevant times – which, on her pleading in paragraph 4, includes, "at all material times up to about November 2003" – had businesses of the type described; (2) the profitability of such businesses (since whether or not they were profitable informs whether she suffered any detriment in ceasing them; (3) whether she has been able to remediate any such detriment by re-establishing those businesses subsequently (which would inform the appropriate remedy, particularly insofar as estoppel is relied upon); (4) whether she has incurred any and if so what rent in respect of a "rented apartment", what travel expenses she has incurred (which informs the quantum of her claim; since, as I presently understand her claim, it alleges an ongoing liability on the part of the defendant and his estate to pay such rent and travel expenses, her position in that respect on an ongoing basis must also be relevant).

6 Accordingly, it seems to me that documents coming into existence over the eighteen months or so before November 2003, and documents coming into existence after the conclusion of the alleged relationship are, at least potentially, relevant.

7 I say "potentially" because, given the manner in which the categories have been drawn, it is quite likely that they will also catch many documents having no relevance to any fact in issue in the proceedings. I have, on more than one occasion, deprecated the practise of settling categories of documents for discovery as if they were paragraphs in a subpoena. Categories of discovery ought ordinarily be framed by reference, not to descriptions of documents or classes of documents, but to issues in the proceedings. Because the parties have approached the matter on both sides in the way that they have, I think it is preferable that I proceed by reference to the approach that they have adopted’ however, in order to ensure that the burden imposed by the categories of documents for discovery is not greater than that what would be involved in general discovery, it should be clearly understood that the obligation to give discovery is not to discover every document that falls within one of the specified categories, but to discover only such documents in those categories as are, within the meaning of the rules, relevant to a fact in issue in the proceedings.

8 Accordingly, while I will make an order for discovery in accordance with the disputed categories using the relevant period proposed by the defendant, as well as the undisputed categories, I will also make clear in the order that the obligation to give discovery does not extend to documents which fall within the category as described but are not relevant to any fact in issue in the proceedings.

9 The other disputed category in the defendant’s application is category 33, in respect of which the plaintiff’s objection is that documents within it do not relate to any fact in issue in the proceedings as currently pleaded. The defendant effectively concedes that that is so, but seeks leave to amend in a manner which, if allowed, would render documents in that category relevant. The plaintiff accepts that if the proposed amendment were permitted, the documents in this category would be relevant. The fundamental issue, therefore, is whether the proposed amendment should be permitted.

10 The proposed amendment of the defence would add defences to the effect that the proceedings ought to be dismissed pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 13.4(1)(c), or the amended statement of claim struck out under r 14.28(1)(c), or the proceedings permanently stayed under (NSW) Civil Procedure Act 2005, s 67, or in the inherent jurisdiction of the Court, "because the proceedings are an abuse of process of the Court, in that a fair trial of the proceedings is no longer possible". A significant aspect of the complaint in this respect is that the proceedings are brought against an estate depending on oral statements attributed to the deceased, to which the plaintiff is the only surviving witness. Essentially, the defendant contends that by reason of the death of the deceased, critical evidence necessary to defend the claim is no longer available, a circumstance which could have been avoided had the plaintiff sued in his lifetime. As I understand the defendant’s case in this respect, it is, at least, in part that, knowing that the deceased was seriously ill, she ought to have acted promptly, so that there was an opportunity to obtain a response, rather than to abide his demise, when there would no longer be someone in a position to contradict her.

11 Rule 13.4 is concerned with summary dismissal. Such applications are conventionally made as interlocutory applications. It is difficult to see how summary dismissal could be appropriate at the conclusion of a contested trial. Rule 14.28 is concerned with defective pleadings. Again, application under it are interlocutory in nature. Civil Procedure Act, s 67, pertains to stays of proceedings. Yet again, it is difficult to see the utility in pleading a defence that the proceedings should be stayed, to be litigated at the final hearing of the substantive proceedings. All those issues should be raised, if they are to be raised, by interlocutory application, not by an amendment to the defence to make them issues at the final hearing. In my view, it is inappropriate to permit the defence to be amended to allow them to be raised and pleaded as substantive defences.

12 In any event, I am not inclined to the view that such a defence would be sufficiently arguable, on the material presently available. The circumstances in which a civil proceeding brought within the applicable limitation period would be stayed on grounds of delay are, if they exist, very limited. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J said (at 555):

If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended [by expiration of limitation period], its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important

13 Counsel for the defendant has helpfully referred me to the subsequent decision of the High Court of Australia in Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council (2006) 226 CLR 256, in which the Court, by majority of four to three, held that proceedings should be stayed as an abuse of process to safeguard the administration of justice, in circumstances where there was so serious a lapse of time that a fair trial was not possible, notwithstanding that they had been commenced within the applicable limitation period. But it is relevant to bear in mind that in that case there had been the passage of some thirty years since the accident from which they arose and that, while the proceedings were in time, by reason of the suspension of time, due to the plaintiff’s disability, the delay in their institution was, nonetheless, enormous.

14 In this case, prima facie, it cannot be said that there was inordinate delay in instituting the proceedings, the plaintiff commencing them within about five years of the cause of action allegedly arising – that is to say, within the ordinary six-year limitation period.

15 Claims against estates based on statements attributed by a plaintiff to the deceased are far from unknown to the Court, which has, in turn, developed a rule of practice that they are subject to close scrutiny and corroboration is almost always required.

16 Against the proposition that the plaintiff in conscience ought to have sued during the defendant’s lifetime, it would, no doubt, be argued that, given his imminent demise, it might have been considerate not to expose him to the trauma, distress and embarrassment that these proceedings might have caused during his lifetime, and to defer bringing them until after his death.

17 I express no conclusion as to how those factors would, ultimately, weigh out, save to say that it does not seem to me that this case could easily be brought within the extreme category of cases that would be stayed on the ground of delay, notwithstanding that they were brought within the limitation period. That is a view that is reinforced by the circumstance that it does not appear to be the case that the defendant has no capacity to obtain evidence to contradict the plaintiff, or to form a view as to whether or not and, if so, to what extent, to admit the plaintiff’s claim: that is because there are affirmative defences alleging that negotiations took place between representatives of the deceased and the plaintiff, during his lifetime but after the end of the alleged relationship, which culminated in releases or settlements of the plaintiff’s claim.

18 For those reasons, first – because in my view an amendment to the defence is not the appropriate way for invoking the provisions for summary dismissal, striking out of pleadings, or stays, on which the defendant wishes to rely; and, secondly, but as a subsidiary matter, because as things presently stand it seems to me that the defences, if pleaded, would be barely arguable – I decline the leave to amend sought. That does not preclude the defendant from making an interlocutory application on any, or all, of the grounds that have been foreshadowed and it may well be that further evidence on such an application would result in a completely different view of its merits.

19 I refuse leave to further amend the defence, and I will therefore decline to make an order for discovery in respect of category 33.

20 I order that the plaintiff give discovery to the defendant of the documents specified in categories 1 to 21, 23 to 31, and 35 of schedule A to the defendant’s motion filed on 18 August 2010, to the extent that such documents are relevant to facts in issue in the proceedings.

Plaintiff’s application

21 The plaintiff’s motion filed on 31 August 2010 seeks an order that the defendant give discovery of documents in eighteen categories specified in the annexed schedule A. Subsequent correspondence has resulted in the addition of two further categories, in respect of which discovery is not opposed by the defendant. Dispute attends only categories 2, 3, 4, 5, 6, 10 and 15.

22 So far as categories 2 and 3 are concerned, the telephone records pertaining to premises at The Quay and the deceased’s mobile telephone records during the period from 1 September 2003 to 31 December 2005, would likely, amongst other things, show where the defendant was, and with whom he was communicating, during that period. Although the plaintiff alleges that the relationship commenced in November 2003 and ended in February 2005, it seems to me not unreasonable that documents predating the commencement of the relationship by a couple of months might shed light on relevant matter and documents extending to the end of December in the final year of the relationship might also do so – not least because it is alleged by the defendant that certain releases and settlements were negotiated during that period.

23 Categories 4 and 5 pertain to records in respect of mobile telephones used by the defendant’s bodyguard and his personal assistant for substantially the same period. The potential relevance of Mr Bowman’s telephone records includes his involvement in the negotiation of one of the alleged settlements and, likewise, as to those of Mr Gray, his involvement in another alleged settlement. On the other hand, the whereabouts of Mr Bowman and Mr Gray from time to time, may be largely irrelevant to facts in issue in the proceedings. It may well be that many such documents, have no relevance to any fact in issue in the proceedings. If so, they need not be discovered. The question is, to the extent that there is anything in them that is relevant to a fact in issue in the proceedings and they are under the control of the defendant, should they be discovered? In my view, the answer is, if they meet those conditions, plainly, they should. Again, it will be a matter for the defendant, and her advisers, to form a properly informed and advised judgment as to the relevance of particular documents in the specified categories to facts in issue in the proceedings.

24 Paragraph 6 seeks records of employment or engagement of Mr Bowman who, as has been said, allegedly negotiated one of the releases or settlements. The defendant objects only that this should be limited to the period of the relationship or, perhaps, until December 2005, when Mr Bowman’s last alleged involvement occurred. On the one hand, records of Mr Bowman’s employment from long before the relationship might be relevant to establish the scope of his authority. Likewise, records after December 2005, if they tended to show that something he had done had been later ratified, might also be relevant to a fact in issue in the proceedings. On the other hand, many documents, such as weekly pay slips and remuneration records during the relationship, might cast no light at all on any fact in issue in the proceedings. Once again, the category describes a class in which there may be some potentially relevant documents but, again, it will be for the defendant, properly advised, to discover such documents in that class as are relevant to facts in issue in the proceedings, not every document in the class.

25 Category 10 calls for travel records in respect of travel by the plaintiff overseas. While, on the one hand, it might well be said that any such record in the possession of the defendant would be relevant, on the other, there is force in the defendant’s argument that she should not be burdened with an unnecessary obligation to search, and there does not appear to be any suggestion that any relevant travel of which the defendant would have a record took place outside the period of the relationship. I would, therefore, limit the timeframe to which paragraph 10 relates to the period September 2003 to December 2005.

26 Category 15 covers records of bookings, or payments made by or on behalf of the deceased for the provision of escort or other similar services between January 2003 and 30 June 2005. Although I have significant difficulty in seeing how this class of documents is relevant to any fact in issue in the proceedings, the only dispute about it is that the defendant proposes that it be limited to services provided by the plaintiff and/or Ms Hitchcock. In those circumstances, I will simply limit the category – which appears to me, in any event, to be of very dubious relevance – in the way sought by the defendant.

27 I order that the defendant give discovery to the plaintiff of documents within classes 1 to 18 of schedule A annexed to the plaintiff’s motion filed 31 August 2010, and in subparagraphs (a) and (b) of paragraph 3 of the plaintiff’s submissions filed 31 August 2010, to the extent that such documents are relevant to facts in issue in the proceedings, subject to the following:

(a) In respect of category 10, discovery is required only of such documents as relate to travel by the plaintiff overseas during the period 1 September 2003 to 31 December 2005;

(b) In respect of category 15, discovery is required only of such documents as relate to services provided by the plaintiff or by Sharilea Hitchcock.

28 On the plaintiff’s motion, costs of the motion will be plaintiff’s costs in the proceedings.

29 On the defendant’s motion, costs of the motion will be defendant’s costs in the proceedings.

30 For those purposes, the costs of today are to be treated as attributable equally to each of the two motions.

31 I adjourn the proceedings to 30 November 2010 at 9.30am before me for further directions.

32 On the application for access to court documents, access is granted to the two notices of motion, the two affidavits that were read in the applications, and the proposed further amended defence.

33 The exhibits may be returned.

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