Barnard v Jim's Group Pty Ltd

[2010] QDC 449

[2010] QDC 449

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2172 of 2008

NEIL BARNARD AND INEKE BARNARD	Plaintiffs
and
JIM'S GROUP PTY LTD ACN 101 925 268	Defendant

BRISBANE

..DATE 26/10/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules 1999, r 223

Whether survey information relied on by defendant as revealing justification for terminating the plaintiffs' franchise was within the defendant's control (as opposed to the survey company's) - whether defendant should be ordered to disclose it, including the names of sub-franchisees surveyed - successful plaintiffs' costs ordered to be paid only if their claim succeeded - defendant's costs reserved

HIS HONOUR: The court has made an order in terms of the initialled draft pursuant to r 223 of the UCPR.

It requires the defendant to disclose "documents" which may be in electronic form and to produce those documents, which it appears are essentially in electronic form, by providing a CD containing an accessible electronic copy of the original electronic documents.  An explanation on oath is required if the documents are ordered to be disclosed cannot be retrieved, as to what has happened to them.

There is an unusual costs order which gives the plaintiff the costs if it wins in the proceeding, its costs being costs in the cause.  The defendant's costs are reserved which leaves for later the possibility that if the defendant is successful in the underlying proceeding it may persuade a Judge to award its costs.  That costs outcome is not congenial to the plaintiffs, represented by Mr Stumer, since it will deny them costs of this application if they are unsuccessful in their claim which essentially is for wrongful termination of a franchise which they held from the defendant for the general area of the southern Gold Coast. Mr Stumer's submission, which I think I understand, is that his clients have had a win in a particular battle of the war and ought to get the costs of it. 

What the plaintiffs are after is information in a form understandable to them regarding surveys which the defendant caused to be conducted of the franchisees or sub-franchisees who came under the plaintiffs in the total structure.
The information which the plaintiffs have been seeking to get for more than two years now has been provided in what, I accept, is an unsuitably anonymous form.  The defendants are pleading confidentiality.  Thus, in late 2008 the plaintiffs were being given results expressed in percentage terms indicating the satisfaction or otherwise which the sub-franchisees felt with the intermediate franchisors' names being blacked out except for the Barnards’.

In the amended defence of January this year the termination of the plaintiffs is justified in part by reference to unsatisfactory reports by two or seven as the case may be out of 11 of the relevant sub-franchisees as I've called them.  I agree with the general proposition that the identity of the sub-franchises is relevant information which the plaintiff ought to have.  What responses individuals gave may well enable the plaintiffs to assess whether there was any relevant animus at work or perhaps whether the approach to those surveyed was, in some way, indicative of the response desired. 

The determination of the plaintiffs and their advisors has led to information being provided relatively recently in the form of ZIP files attached to emails.  Not only have the plaintiffs been unable to access the information in the files, the defendant has been similarly unable to access the information although passing the ZIP files on.

While I understand the plaintiffs' suspicions that the defendant is trying to keep them out of information, I'm not convinced, at this stage, that such is the case nor am I persuaded that there's any relevant confidentiality involved here although the parties ought to be aware of their responsibility to ensure that information provided for the purposes of the proceeding is not disseminated more widely.  It may be inappropriate, for example, to disseminate to particular sub-franchisees information regarding the businesses of the others.

The difficulty the defendant relies on is that the information which it tells the court it has been actively seeking itself to satisfy the plaintiffs' request is said to belong to or be with a survey organisation known as Foothills Administration Centre Pty Ltd (FAC).  The defendant's principal is the partner of Ms Penman who is, according to the defendant's solicitor, associated not with FAC but with Foothills Conference Centre which Mr Meredith said from the Bar table is a business or industrial park owned by the defendant where both the defendant and FAC are located.  The defendant presents a case that FAC and it are independent entities so that information the plaintiff is after is in the category of belonging to FAC but not to it.

On general principles I would take the likelihood to be that the information garnered by FAC in its surveys, even if held by FAC, belongs to the defendant.  Mr Meredith hasn't been able to point to anything whether of a contractual nature or otherwise to gainsay a proposition along those lines.  Mr Stumer's written submissions identify circumstances which, he says, illustrate a relationship between FAC and the defendant so close that it may be inferred the documents held by the former are also in the possession of the latter - and certainly within its control, if not its possession.

These are the factors:

(a)the principal place of business of FAC is at the same premises as the registered office and principal place of business of the respondent;

(b)when Mr Gear, solicitor, on behalf of the applicants, telephoned those premises on 21 October 2010 to inquire about FAC he was told that questions relating to FAC should be directed to the respondent or to Lee Penman, wife of the respondent's director;

(c)the email address for Ms Stallworthy, (a director and member of FAC) has the same suffix (@ Jims.net) as the email address for Sabah Kahn, "Senior Legal Counsel" for the respondent;

(d)the respondent has to date been able to access survey result documents and raw survey documents from FAC.

In those circumstances the court is comfortable that proceeding on the basis that, even if at the cost of some trouble, the defendant can get from FAC information that may be in its immediate possession.  Those are the reasons for the court's order which is in terms of the initialled draft.

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