Austral Pacific Investments (H.K.) Limited v Urban Activation Pty Ltd - [2023] SADC 66

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
AUSTRAL PACIFIC INVESTMENTS (H.K.) LIMITED & ANOR v URBAN ACTIVATION PTY LTD
[2023] SADC 66
Judgment of his Honour Judge Burnett
5 June 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - APPLICATION AND ORDER FOR FURTHER AND BETTER DISCOVERY
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF ACTS - TERRITORIAL LIMITS
In these proceedings, the applicants seek an order that the respondent pay the sums of $857,431.75 and $145,875 respectively for work performed, pursuant to written agreements, assisting the respondent to procure sales of units at particular developments. The respondent denies any liability to pay those sums (and seeks recovery of sums that it paid) and say that the applicants acted as an agent within the meaning of the Land Agents Act 1994 (SA), an estate agent within the meaning of the Estate Agents Act 1980 (Vic) and a property agent within the meaning of the Property Occupations Act 2014 (QLD). As the applicants were not registered under those Acts, the respondent says that the applicants are unable to claim any fee for their work. The applicants say that they did not act as an agent and further the Acts had no application because they were based outside of Australia and any work was performed outside of the respective States.
The respondent seeks further and better discovery of documents comprising, broadly, communications between the applicants and persons physically located within the relevant State relating to the developments and agreements in respect of which the applicants performed work.
Held: (1) An order is made that the applicants provide further and better discovery.
(2) The issue of whether a person, in this case, the applicants, acted as an agent within the relevant State, requires an examination of the whole transaction and consideration of the work undertaken, including individual steps: Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418 and Sultana Investments Pty Ltd v Cellcom Pty Ltd [2008] QCA 357 applied.
(3) The application of State legislation requires there to be an appropriate territorial connection between the conduct of the applicants and the State: Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 applied.
(4) The acts of the applicants must be considered individually and as a whole to determine where they were committed and whether they had an appropriate territorial connection with the particular State. Therefore, all documents sent or received by the applicants relevant to the sale of the units to persons acting within the State are directly relevant.
(5) It was no answer to the application that the respondent had administered a notice to admit in response to which the applicants had admitted specified facts. The issues remained in dispute.
(6) The applicants did not adduce any evidence that the request was oppressive. Oppression requires an assessment of the time and cost of discovery against its utility: Amaca Pty Ltd Werfel & Anor [2019] SASC 29; In the Matter of Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016[ NSWC 306 applied.
Land Agents Act 1994 (SA) s 4, s 6; Land and Business (Sale and Conveyancing) Act 1994 (SA) s 3, s 20 and s 21; Estate Agents Act 1980 (Vic) s 4, s 12 and s 50; Property Occupations Act 2014 (Qld) s 97, referred to.
Freehold Land Investments Ltd v Queensland Estates Pty Ltd [1970] 123 CLR 418; Sultana Investments Pty Ltd v Cellcom Pty Ltd [2008] QCA 357; Jenkins v Kedcorp Pty Ltd [2002] 1 Qd R 49; Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303; Toskas v Waldron [2020] SADC 76; Ceneavenue Pty Ltd v Martin [2008] SASC 332; Lane v Channel Seven Adelaide Pty Ltd [2003] SASC 391; Technomin Australia Pty Ltd v Xstrata Australasia Operations Pty Ltd [2010] WASC 218; Moss v Cave [2010] SASC 72; Scott v Johnson & Ors [2010] SASC 277; Channel Seven Adelaide Pty Ltd v Lane & Hurley (2004) 234 LSJS 225; Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd & Anor [2002] SASC 374; Southern Equities Corporation (in liq) v Arthur Anderson & Co (No 5) [2001] SASC 335; Scott v Johnson & Ors [2010] SASC 277; Amaca Pty Ltd v Werfel & Anor [2019] SASC 29; Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264; In the Matter of Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306, considered.

AUSTRAL PACIFIC INVESTMENTS (H.K.) LIMITED & ANOR v URBAN ACTIVATION PTY LTD
[2023] SADC 66
Civil
Introduction

By interlocutory application dated 2 May 2023, the respondent, Urban Activation Pty Ltd, seeks an order that the applicants, Austral Pacific Investment (H.K.) Limited and Global Link Properties SDN.BHD, make further and better discovery of any document comprising any communications between the applicants, their agents or representatives and persons:
1.Physically located within South Australia and which related to or were connected with Realm Adelaide, the Realm Services Agreement, the Marketing Proposal and the Realm Adelaide Services (as those terms were defined in the Claim).
2.Physically located within Victoria and which related to Tao Home Box Hill, the TAO Home Agreement and the Tao Home Services (as defined).
3.Physically located within Victoria and which related to Sovereign Blackburn, the Sovereign Blackburn Agreement and the Sovereign Blackburn Services (as defined).
4.Physically located within Queensland and which related to the Cannon Hill Agreement (as defined).
The respondent also requested discovery of documents in various sub-categories. These subcategories listed communications with various persons or in respect of particular activities in respect of which the respondent had evidence that the applicants had been involved.
The respondent further seeks that the applicants’ discovery be verified on oath.
The applicants oppose the application and do so on three bases: first, that the documents sought were not directly relevant to the pleadings; secondly, there was no reason for the Court to doubt that the applicants had made proper discovery; thirdly, that the application was, in the circumstances, oppressive.
Background Facts
To be able to assess whether the documents should be discovered, it is necessary to understand the issues raised on the pleadings.
The respondent had entered into an agreement with the developer of units at the locations listed below whereby the respondent had agreed to procure buyers of those units. The units were located at:
(1)Austin Street, Adelaide, (the Austin Street property), the development of which was described as Realm Adelaide;
(2)19 – 21 Poplar Street, Box Hill, in Victoria (the Poplar Street property), the development of which was described as Tao Homes Box Hill;
(3)1-5 Queen Street, Blackburn in Victoria (the Queen Street property), the development of which was described as Sovereign Blackburn;
(4)22 Andrews Street, Cannon Hill in the state of Queensland the development of which was described as Cannon Hill.
The respondent in turn entered into agreements with the applicants whereby the applicants were appointed to assist the respondent in procuring sales of units at those developments. These agreements were defined in the Claim as the Realm Services Agreement and the Marketing Proposal, the Tao Box Hill Agreement, the Sovereign Blackburn Agreement and the Cannon Hill Agreement. The price payable by the respondent to the applicants for the services was 5% of the contract price.
The applicants were incorporated and based in Hong Kong and Singapore respectively. The services performed by the applicants were described as efforts in assisting the respondent to procure sales of apartments at the respective developments, as a result of which the applicants obtained the execution of contracts of sales by buyers of those developments and provided the respondent with executed contracts of sale.
The relief sought by the first applicant was an order that the respondent pay to it the sum of $857,431.75 or in the alternative, damages. The second applicant sought an order for payment in the sum of $145,875 and in the alternative damages.
The respondent in its defence does not deny entering into agreements with the applicants or that the applicants had carried out work but says in relation to the Realm Services Agreement and the Marketing Proposal that:
1.Pursuant to s 6 of the Land Agents Act 1994 (SA) the first applicant was an agent and carried on business as an agent such that it was required to be, but was not, registered as an agent:
2.Was therefore under s 6(1) of the Land Agents Act not entitled to commission or other consideration for their services as an agent.
3.Further under s 20(7) of the Land and Business (Sale and Conveyancing) Act 1994 (SA) the applicants were prevented from demanding, receiving or retaining commission or expenses in respect of this sale or purchase of land as they contravened or failed to comply with s 20 of that Act and they were not authorised by a sales agency that complied with s 21 of that Act.
In relation to the Sovereign Blackburn Agreement and the Tao Box Hill Agreement (which related to developments in Victoria), the respondent pleaded that:
1.Pursuant to s 4(1) of the Estate Agents Act 1980 (Vic), the applicants acted as an estate agent.
2.Was required to be, but was not, licensed as an estate agent pursuant to s 12(1) of the Estate Agents Act.
3.Was therefore pursuant to s 12 and s 50 of the Estate Agents Act not entitled to sue for or recover or retain any commission or money in respect of any outgoings for or in respect of any transaction.
In their reply, the applicants joined issue with each positive allegation in the defence and further pleaded that: (1) they did not act as an agent within the meaning of s 4(2)(b) of the Land Agents Act (2) were not required to be licensed as an agent within the meaning of s 12(2) of the Estate Agent Act, (Vic); and (3) pursuant to s 3 of the Land and Business Agents (Sales and Conveyancing) Act and 4(2)(b) of the Land Agents Act the services they provided were not required to be authorised by a sales agency agreement.
The applicants further pleaded in the reply that they provided services to the respondent outside the state of South Australia and or Victoria (as the case may be) and in fact outside the Commonwealth of Australia. In those circumstances the applicants pleaded that the relevant Acts of South Australia and Victoria did not regulate conduct outside those respective states.
The same issue is raised in relation to the cross claim where the respondent seeks to recover amounts that it had paid to the applicants in respect of the Realm Adelaide development in South Australia, the Tao Box Hill Development and the Sovereign Blackburn Development in Victoria and the Canon Hill development in Queensland.
In respect of the Cannon Hill property, the respondent alleged, in the cross claim, that the first applicant carried on a business that consisted of or included the provision of selling or buying or otherwise dealing with land and business on behalf of others or conducting negotiations such that it was acting as a property agent for the purposes of s 97 of the Property Occupations Act 2014 (Qld) and was therefore prohibited from acting for reward.
In their defence to the cross claim, the first applicant denied that it acted as a property agent within the meaning of s 97 and further say that it provided services to the respondent outside of Queensland and the Commonwealth such that the Act did not apply. Similar defences to the cross claim were raised by the applicants in respect of the application of the South Australian and Victorian Acts.
The issues for determination at trial include:
1.Did the applicants carry out work as an agent in South Australia, an estate agent in Victoria and a property agent in Queensland.
2.Were the applicants required to be registered as an agent in South Australia, as an estate agent in Victoria and in respect of the cross claim as a property agent in Queensland (it is not in dispute that they were not so registered).
3.By reason of not being registered, were they precluded from claiming a commission or fee or any money in respect of the work they performed.
4.Even if they resided overseas, did the applicants engage in work within the respective states such that they were required to be registered as an agent under the South Australian, Victorian or Queensland Acts.
5.Did the applicants engage in conduct wholly outside of South Australia, Victoria and Queensland such that the Land Agents Act (SA), the Estate Agents Act (Vic) and Property Occupations Act (Qld) do not apply to them.
Did the applicants act as an agent (or estate agent) and did they act in South Australia, Victoria and Queensland respectively or wholly outside of those states
The respondent referred to a number of cases which it submitted provided guidance as to how the Court should approach these issues.
In the decision of the High Court in Freehold Land Investments Ltd v Queensland Estates Pty Ltd[1] the question for the Court was whether or not the appellant acted in Queensland as a real estate agent.[2] Walsh J approached the question by stating that “the ultimate question is whether or not the appellant did act in Queensland as a real estate agent.” Walsh J went on to hold:[3]
In my opinion one must look at the whole transaction which is on foot.
In the present case it was the transaction under which the appellant was authorised to bring about a sale of land which belonged to the respondent and was to get renumeration, in accordance with the terms of the agency authority which I have described above, which was given to it by the respondent. The appellant was engaged throughout (at least at all times after it had obtained the authority) in the process of seeking to negotiate that sale. Every step which it took which could aid in the achievement of a completed sale was a step in the transaction of negotiating the sale.
[1] (1970) 123 CLR 418.
[2] Ibid at 425 per Menzies J and at 441 per Walsh J.
[3] Ibid at 443.
Walsh J further added:[4]
In my opinion there is no reason from excluding from consideration, in examining what the appellant did, as agents for the respondent, in the negotiating of the sale of the land, any act of the appellant which was a step towards the completion of the sale and towards the fulfilment of the conditions to which the agency authority referred. A step which consisted in persuading the respondent as owner to agree to some stipulation which had been put forward as necessary for the completion of the transaction, was no less a part of the negotiation of the sale, then was the discussion with intending purchases of the terms of a proposed contract of sale.
[4] Ibid at 443-445.
He went on to say that if the transaction had been completed:[5]
The result would have been in my opinion that the appellant would have acted, partly outside Queensland and partly in Queensland, as a real estate agent in relation to that transaction of sale. It would have so acted, partly in Queensland, because its production of the contract for the purpose of signing by the vendor would have taken place in Queensland and that would have been one of the essential parts of the appellant’s function of negotiating for the selling of land.
[5] Ibid at 444-446
Walsh J concluded that:[6]
Part of that activity of negotiating the sale was performed abroad but an important part of it was performed in Queensland and this was in contravention of the act. Because I consider that the features of the transaction and the activities of the appellant which I have already referred are sufficient to lead to the conclusion that the appellant did act in Queensland in contravention of the Act….
[6] Ibid at 447.
The respondent also referred to the decision of the Queensland Court of Appeal in Sultana Investments Pty Ltd v Cellcom Pty Ltd.[7] In that case the issue was whether a party, the respondent, that introduced buyers for the appellant’s apartment development was acting as an agent for reward (as required under the Queensland Act) and further whether the respondent acted within Queensland.
[7] [2008] QCA 357.
In relation to the first issue the Court,[8] referred to the decision in Jenkins v Kedcorp Pty Ltd[9] which in turn referred to the decision in Colbron v St Bees Island Pty Ltd[10] where Lindgren J held that it was not necessary that the agent possess authority to commit his principal contractually before it could be said that he had acted “as an agent for others” and held that the expression “simply connotes a person engaged to act on behalf of another”.
[8] Ibid at [36]-[38]
[9] [2002] 1 Qd R 49
[10] [1995] FCA 1107; (1995) 56 FCR 303.
The Court in Sultana Investments referred[11] to the following passage from Jenkins:[12]
The context, as the remainder of the definition indicates, is that of participating in some aspect of the buying and selling of real estate and associated activities. It is not amiss to note in this context that the classical function of a real estate agent has been regarded as ‘to find a buyer’ or to introduce a vendor and purchaser.”
…
To earn the first $5,000 of the consultancy fee the respondent was required to introduce the client to the developer and an unconditional sale occur. In virtually every case the respondent procured the execution of the contract by its investor client and returned the documents to the appellant. It was the conduit through which colour choices and finishes appear to have been conveyed to the appellant. Although it negotiated the extensions of time for settlement for its investor clients it was also negotiating to bring about completed sales for the appellant. If successful, it would earn the second $5,000 of the consultancy fee. What, in a sense, clouded the issue for the primary judge was that the respondent was acting as agent for both buyer and seller. It was irrelevant that the appellant had appointed PRD as its principal selling agent. It was also irrelevant that the respondent may have fitted the description of marketeer vis-à-vis its clients. The respondent negotiated the selling of The Mews for the appellant for reward.
[11] [2008] QCA 357 at [36].
[12] [2002] 1 Qd R 49 at [16].
In relation to the second issue, in Sultana Investments, the Court first observed that the contracts were drafted in Queensland and were completed in Queensland where the appellant signed the offer to buy from various clients. There were numerous electronic communications by the respondent to the applicant about aspects of the contract, finance, painting and fit out. The respondent quoted the following passage from Professor WD Duncan’s book on real estate agency law in Queensland:[13]
A person will still be acting as a real estate agent for purposes of this legislation if part of the work is performed in Queensland and part outside Queensland. There are a number of steps which are conventionally taken by a real estate in a negotiation and finalisation of any real estate transaction. Introducing the property and negotiating the contract and any special conditions is no less a part of negotiating the transaction as obtaining the signature of the seller to the contract and advising that signature to the buyer. Where a person acts partly in Queensland and partly outside Queensland, regardless of how minor the act inside Queensland, that person will be acting as a real estate agent in Queensland for the purposes of the legislation. For example, notwithstanding that all other activities took place outside Queensland, the mere production of the contract for signing by the seller in Queensland would be deemed one of the essential parts of a real estate agent’s function in negotiating the selling of the land, and that person would have had to be licensed in Queensland to earn commission: Freehold Land Investments Ltd v Queensland Estates Pty Ltd [citation omitted] per Walsh J.
[13] Ibid 43.

The respondent also referred to the decision in Colbron v St Bees Island Pty Ltd[14] where Lindgren J held that the application of the particular statutory provisions depends on whether they are directed to conduct that has an appropriate territorial connection with the state in question.
[14] (1995) 56 FCR 303 at [22].
Legal Principles
I set out in Toskas v Waldron[15] the relevant principles relating to an application for further discovery. The relevant principles are as follows:
[15] [2020] SADC 76.
Uniform Civil Rules 2020 (SA)(UCR) 73.7(5) provides that a document is discoverable if it is directly relevant to an issue raised in the proceeding, such issues being defined by the pleadings. UCR 73.7(6) expands on that definition of discoverable document by providing that, without limiting the definition, a document is directly relevant if it is intended to be relied on at trial by that party or it supports or adversely affects a party’s case.
An application for further and better disclosure is made under UCR 73.15 which states:
1.If there is reason to doubt whether a person has fully complied with an obligation to disclose, produce for inspection or copy a document under this Part (whether under the rules in or an order or agreement under this Part), the Court may make such orders as it thinks fit to determine whether there has been full compliance or to ensure or enforce full compliance.
2.For example, the Court may order that -
a.a person’s list of documents be verified on oath;
b.a person make specific discovery of specified documents, or categories of documents, in their possession, custody or power;
c.a person file an affidavit, or give oral evidence, deposing to whether a person has specified documents or categories of documents in their possession, custody or power;
d.a person answer written questions; or
e.a person appear before the Court for examination.
There is a presumption that parties filing their lists of documents have discharged their obligations under the Rules and there is an onus on parties seeking further discovery to point to matters which indicate that a Court should not give effect to that presumption.[16] An order for further and better disclosure will only be made once the presumption has been displaced. The Court will require a degree of satisfaction that the disclosure has been inadequate before making an order for further discovery, beyond the mere possibility that it is inadequate.[17]
[16] Ceneavenue Pty Ltd v Martin [2008] SASC 332 at [11]; Lane v Channel Seven Adelaide Pty Ltd [2003] SASC 391 at [16]; Technomin Australia Pty Ltd v Xstrata Australasia Operations Pty Ltd [2010] WASC 218 at [3]-[8].
[17] Ceneavenue Pty Ltd v Martin [2008] SASC 332 at [11]; Moss v Cave [2010] SASC 72 at [18].
In Ceneavenue v Martin[18] White J held:
I consider that the expression ‘reason to doubt whether a party has fully complied with the party’s obligations to disclose and produce documents’ in r 145 implies a presumption that there has been compliance with a party’s disclosure obligations. Hence, it will be incumbent upon an applicant for further and better disclosure to point to matters which indicate that the Court should not give effect to that presumption. It is not necessary for the Court to be convinced that the plaintiffs’ disclosure is inadequate, or to be satisfied on the balance of probabilities that it is inadequate. It is sufficient if the Court is satisfied that there is a reasonable basis for doubting that the disclosure made is adequate. This will require a degree of satisfaction going beyond the mere possibility that the plaintiffs’ disclosure is inadequate.
An applicant may establish the doubt by demonstrating, amongst other things, that the party making the disclosure has proceeded under some form of misconception, whether as to the nature of the issues arising on the pleadings, or as to the documents which may be directly relevant to those issues, or as to the reach of the rules concerning possession. It may also satisfy the evidential onus by pointing to the documents which one would expect to have come into existence in the circumstances of the case by reason of ordinary commercial practice or experience, by reference to the pleadings themselves or by reference to other documents already disclosed.

[18] Ceneavenue Pty Ltd v Martin [2008] SASC 332 at [11]-[12].
A document is discoverable under Rule 73.7(5) as directly relevant if it tends to prove or disprove a matter which is in issue on the pleadings.[19] A document will be discoverable as directly relevant if it constitutes circumstantial evidence, tending along with other evidence to prove or disprove a matter in issue on the proceedings.[20]
[19] Scott v Johnson & Ors [2010] SASC 277 at [6]; Channel Seven Adelaide Pty Ltd v Lane & Hurley [2004] SASC 177 at [22]-[25]; (2004) 234 LSJS 225 at 230.
[20] Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd & Anor [2002] SASC 374 at [10]; Southern Equities Corporation (in liq) v Arthur Anderson & Co (No 5) [2001] SASC 335.
A document will not be directly relevant if it merely tends to prove or disprove something that may be relevant to a matter in issue or if there is merely a chance that the document will prove or disprove a matter in issue.[21]
[21] Scott v Johnson & Ors [2010] SASC 277 at [6].
Determination of the application
In relation to the issue of whether the applicants were acting as an agent, the authorities to which I have referred suggest that each act of the alleged agent must be considered in determining whether or not they were acting as an agent. Mundane matters such as communications about colour choice and finishes where the alleged agent will only get a fee if they introduced the client to the developer and the unconditional sale occurred will be considered.
These acts must be considered in the context in which they are made. It is not sufficient, in my view, that they are considered as part of some broad characterisation of what tasks the applicants performed. It is not, as the applicants submit, a question of law to be determined from facts that are not in dispute. Rather, it is question of characterisation of the acts and conduct of the applicants taken individually and as a whole.
It is no answer to the task of characterisation, to say that the respondent has administered a notice to admit facts in response to which, the applicants admitted the specified facts. That response can be relied upon but is not the whole answer to the question of the characterisation of the conduct of the applicants. The notice to admit only goes so far. The response admits a series of facts that are relevant but are, on the applicants’ case, not determinative. The applicants have not admitted that they acted as agent. Their conduct must be considered in its totality. The obligation of the applicants to provide discovery of directly relevant documents is not excused because some facts have been admitted or because the notice to admit was limited in its scope, such that the issue between the parties remained extant. In fact, in the circumstances of this case, less information was available to the respondent at the time at which it administered the notice to admit. It was not until after subpoenas were issued that the respondent became aware of further information that informed the drawing of the application for further discovery.
As to the issue of application of the Lands Agents Act, the Estate Agents Act, and the Property Occupations Act, it will be in issue whether any and if so, what conduct occurred in South Australia, Victoria and Queensland respectively and whether that conduct had an appropriate territorial connection with those states. In Colbron, the Court held there needed to be an appropriate territorial connection while in Sultana Investments, an act performed within the relevant state appeared to be sufficient. That is a matter for trial.
It is necessary for the Court to consider all of the conduct of the respondent that forms part of the evidence at trial and consider each individual act, as well as the acts collectively, to determine whether the appropriate connection exists. This characterisation again requires the evidence to be considered in its appropriate context.
There will be an issue where communications or acts have occurred and if it is determined that some of the communications have occurred in South Australia, Victoria or Queensland, whether it is sufficient to say that there has been an appropriate connection with that state. There may be questions whether some acts performed in the relevant states are to be attributable to the applicants even if the applicants did not physically undertake those acts.
The applicants again submitted that there were no factual matters in dispute (ie what the applicants did), but what is in dispute is the legal characterisation of the admitted conduct of the applicants. That submission is at too general a level. The individual acts of the applicants must be individually assessed and in their context rather than at a collective level of generality.
For the same reasons, the notice to admit and its response is not determinative. If it were, then the issue of where the conduct occurred, would not be in issue. However, the applicants maintain their opposition to this part of the respondent’s defence on the basis that the relevant Acts do not apply, because their conduct occurred outside of that state.
As the respondent submitted, in Sultana Investments, the Court examined the whole range of conduct including where contracts were drafted, where the transaction was completed, facsimiles and electronic communications between the parties.
The applicants further submitted that the respondent had not established that they, the applicants, had failed to make proper disclosure such that an order for further and better disclosure should be made.
I reject that submission. The evidence adduced by the respondent establishes the existence of the documents. The affidavit material of the respondent annexed documents of the type requested but which had not been disclosed by the applicants. There has been no evidence adduced by the applicants that the documents do not exist. It is obvious that the applicants would have documents of the type sought by the respondent. The reason why the applicants have not discovered those documents is that they do not consider them to be directly relevant. The applicants maintained that position at the hearing of this application. Given this position there is reason to doubt that the applicants have complied with its discovery obligations because it has proceeded on a misconception as to the relevance of those documents.
The applicants also submitted that the application should be refused because it would be oppressive for the applicants to comply with the order. In Amaca Pty Ltd v Werfel & Anor,[22] Nicholson J stated that he was persuaded that given the limited likelihood of documents being directly relevant, the likely limited nature of the probative value of the documents compared to the time required to comply with the order and the expense and logistical difficulties of compliance discovery of the documents should not be ordered. In Palavi v Radio 2UE Sydney Pty Ltd,[23] Allsop P observed that discovery always contains the risk of abuse and oppression and the court should ensure that it is not used as a weapon of oppression by wealthy litigants to oppress less well funded litigants. Brereton J in In the Matter of Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006[24] observed that oppression was not a mere factor of extent, time and costs and that discovery is not oppressive merely because it is burdensome but only if it is unnecessarily burdensome.
[22] [2019] SASC 29 at [60].
[23] [2011] NSWCA 264 at [101].
[24] [2016] NSWSC 306 at [29].
These cases raise the issue of balance: the court providing some assessment of the time and cost of discovery against its utility.
The difficulty with the submission that the discovery sought is oppressive is that the applicants did not adduce any evidence of the details of the alleged oppression. There was no evidence about the time that would be spent or the resources needed in locating the documents, examining them and collating them and then discovering them. There was no evidence as to the cost to the applicants in undertaking those tasks. That might not be fatal to the applicants’ opposition if it were obvious from the nature of what was being sought, that the request was oppressive. This is not such a case. The application seeks communications between the applicants (and its representatives and agents) and persons in South Australia, Victoria and Queensland respectively relating to the developments. This, is not, on its face, oppressive. There is no suggestion that the applicants would be unable to locate these communications or that they would be of a volume that made it oppressive to discover.
The respondent has also sought an order that the applicants provide discovery on oath. Pursuant to UCR 73.15(2)(b), where there is reason to doubt that a person has fully complied with its obligation to provide discovery, one of the orders that the Court may make is that the list of documents be verified on oath.
Given the finding as to the need of further and better discovery, it is appropriate that discovery be given on oath.
Conclusion
I allow the application of the respondent and order that the applicants provide further and better disclosure. I further order that the applicants provide discovery on oath. I direct that the respondent file minutes of order reflecting these reasons.