Battle v The Trustee for the Mackman Trust t/as MJ the Mackman
[2020] WADC 149
•26 NOVEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BATTLE -v- THE TRUSTEE FOR THE MACKMAN TRUST t/as MJ THE MACKMAN [2020] WADC 149
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 12 NOVEMBER 2020
DELIVERED : 26 NOVEMBER 2020
FILE NO/S: CIV 742 of 2019
BETWEEN: BEAU WILLIAM BATTLE
Plaintiff
AND
THE TRUSTEE FOR THE MACKMAN TRUST t/as MJ THE MACKMAN
Defendant
Catchwords:
Discovery - When should the list be verified on affidavit - Relationship between the Rules of the Supreme Court 1971 (WA) and the District Court Rules 1969 (WA)
Legislation:
District Court of Western Australia Act 1969 (WA)
District Court Rules 1969 (WA), r 46
Rules of the Supreme Court 1971 (WA), O 26 r 7
Result:
The defendant file and serve a list of discoverable documents verified on affidavit
Representation:
Counsel:
| Plaintiff | : | Mr M P Hawkins |
| Defendant | : | Mr A P Hershowitz |
Solicitors:
| Plaintiff | : | Chapmans |
| Defendant | : | McCabe Curwood |
Case(s) referred to in decision(s):
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217
Perpetual Trustees Company Ltd v Burniston [2012] WASC 26
PRINCIPAL REGISTRAR MELVILLE:
Background
The plaintiff has commenced an action by which he seeks damages for personal injuries allegedly suffered as a consequence of the negligence of the defendant.
By his initial statement of claim, the plaintiff alleges he was employed by Hansen Construction Materials Pty Ltd (Hansen) as a truck driver. At all material times the defendant was contracted by Hansen to maintain and service Hansen's cement powder trucks.
The plaintiff goes on to allege that on 14 March 2016 he was injured when he slipped off a rung of a ladder he was climbing whilst inspecting manholes located on top of the truck he had been driving. The truck was not identified in the pleading. In general terms and to paraphrase the nature of the defendant's alleged negligence, it is that the defendant failed to provide a nonslip surface on the rung of the ladder, or failed to take such measures as appropriate to ensure the rung of the ladder was sufficiently slip resistant.
In its initial defence filed 19 July 2019 the defendant formally admitted that the services performed for Hansen were confined to the service and maintenance of the mechanical components of the trucks and were defined by a scope of works provided by Hansen for each job.
Not surprisingly, the defendant sought further and better particulars in respect of the truck, which request was filed with the court on 21 August 2019. On 30 August 2019 the plaintiff filed the requested further and better particulars, identifying the truck as having fleet number 6354.
On 6 September 2019 the defendant filed an amended defence in which, among other things, it denied that it had ever conducted any work on a truck bearing that fleet number, denying Hansen had such a truck and denying that the alleged accident occurred on such a truck.
Discovery
By letter dated 27 August 2019 the plaintiff's solicitors advised the defendant's solicitors the way was clear for their client to provide its 'informal list of documents'. By letter dated 10 September 2019 the defendant's solicitors served the defendant's list of documents and advised that Hansen's had never had a truck with fleet number 6354 but that the plaintiff had fallen from a truck with fleet number 6758. The defendant's solicitors went on to advise that on that basis their client discovered documents relating to the work done on the truck with fleet number 6758.
There no longer appears to be a dispute about the identity of the truck, it being accepted that the truck in question was the truck with fleet number 6758. However, there remains a factual dispute between the parties as to whether the truck with fleet number 6758 was repaired, maintained or serviced by the defendant on or about 14 March 2016.
By letter dated 30 January 2020 the plaintiff's solicitors requested copies of items 4 - 36 from the defendant's list.[1]
[1] Affidavit of Josephine Mary Courtney filed 6 November 2020, annexures JMC 4, JMC 5 and JMC 8.
On 7 May 2020 the plaintiff entered the action for trial by filing the form prescribed by the District Court Rules 2005 (WA) (DCR). In so doing, the plaintiff's solicitor certified each party had given discovery to, and permitted inspection by, each other party and that the plaintiff did not require any other interlocutory orders to be made.
By letter dated 19 May 2020 the plaintiff's solicitors wrote to the defendant's solicitors requesting further discovery of any contracts between the defendant and Hansen and any other invoices/service sheets relating to work the defendant had carried out on any other Hansen trucks in the period 1 July 2015 to 30 June 2016.
Then followed a series of correspondences as to the adequacy of the list of documents provided by the defendant. The plaintiff believed there should be discovery of maintenance records relating to other Hansen trucks and more particularly, for the purposes of the application that is now before the court, maintenance records relating to the truck with fleet number 6758 for the period between 23 February 2016 and 14 March 2016.
The defendant's position was that all relevant documents had been discovered and that the last time the defendant had worked on the truck was 23 February 2016. It appears the basis for the challenge to the list of documents is the plaintiff's position that he had been requested by his supervisor at Hansen to take a taxi over to the defendant's premises on 14 March 2016 to collect the truck with fleet number 6758. Upon doing so, he observed the truck parked at the front of the yard following which he collected the keys from the defendant's office. This state of affairs is deposed to by the plaintiff in his affidavit sworn 10 November 2020 and filed 11 November 2020.
In this regard, one inference that is open is that the truck with fleet number 6758 had been sent to the defendant's premises for repair or maintenance or service. To conclude that the repairs, maintenance or service had in fact been undertaken and that the defendant has or once had possession, custody or control of documents that might be assumed to have come into existence as a consequence thereof, is another step. A possibility is that the truck had been sent there but that the defendant had not yet performed any work on it, the consequence being that no documents in relation to the repair, maintenance or servicing of the truck were generated.
The plaintiff's application under O 26 r 7 Rules of the Supreme Court
The representations of the defendant via its solicitors that no such documents exist and that the informal list of documents it provided was accurate do not dispel the plaintiff's concerns and so, on 16 October 2020, the plaintiff brought an application by way of chamber summons seeking an order pursuant to the Rules of the Supreme Court1971 (WA) (RSC) O 26 r 7 that the defendant give discovery of all documents in its possession, custody or control relating to all matters in question in the proceedings and that this be done by way of a list of documents verified by affidavit. Order 26 r 7(3)(e) empowers the court to order all or any of the parties to make, file and serve an affidavit verifying the parties' list of documents discovered.
Since then, and on 19 October 2020, the plaintiff filed an amended statement of claim. The amendments include allegations that on the material date the plaintiff was using the truck with fleet number 6758, that by way of a scope of works for each job performed by the defendant on Hansen's truck the defendant was required to also repair the trucks, and that routine maintenance included checking to see that the rungs of the ladders had sufficient slip resistance coating to comply with Australian standards and included the maintenance and greasing of the fifth wheel of the truck with fleet number 6758.
The amendments go on to aver that the reason the plaintiff slipped is because the soles of his work boots had become covered in grease, this being due to grease that was covering the checker plate and the skid plate of the truck located directly above the fifth wheel. He says the grease covering the checker plate and the skid plate had been left there by the defendant, its agents or servants when servicing/repairing and/or maintaining the truck earlier that day or in the days leading up to that day.
The defendant opposes the application. It points out it has given discovery informally pursuant to DCR r 46 and as requested by the plaintiff. Whilst the defendant does not go so far as to submit that informal discovery once given in these circumstances precludes the court ordering the list be verified by affidavit, the defendant says there is no point to such an order in this case because it is clear that the affidavit will do no more than verify the existing list and therefore put the defendant to unnecessary expense. It is not submitted that a consent to an informal list of documents cannot later be withdrawn or that an estoppel somehow arises.
The law
To the extent they are not displaced by the DCR, the RSC apply, so far as applicable, to the District Court.[2] Accordingly, RSC O 26, which deals with discovery, applies to the District Court to the extent the question of discovery is not dealt with by DCR r 46.
[2] District Court of Western Australia Act 1696 (WA) s 87(1).
The DCR, by r 46, requires each party to give to the other discovery of all documents that are or have been in the party's possession, custody or power relating to any matter in question in the action. The obligation to provide discovery is statutory and not dependent on a request or notice to do so. Rule 46(3) provides that with the consent of each other party to the action, discovery may be made by way of informal list but otherwise shall be by way of affidavit served on the other parties.
I am of the view that RSC O 26 r 1(1) and r 1(2), which would otherwise require a party to give notice in writing to the other to provide discovery and that such a notice is not to be given without the leave of the court once the matter has been entered for trial, have no application as they have been displaced by DCR r 46. Consequentially, RSC O 26 r 7(1) and r 7(2) have no application but in my view, the balance of O 26 r 7 will continue to have application to the District Court.
The parties appear to have proceeded on the basis that leave is required to issue a notice under O 26 r 1(2), with the plaintiff's summons being amended without objection to seek that leave.
In my view, leave is not required to bring the application. It is open to the plaintiff to apply to the court for an order requiring the defendant to provide discovery where there is non‑compliance with DCR r 46. Similarly it is open to a party to apply for an order that the list be verified by affidavit. Whilst the orders the plaintiff seeks in his summons is firstly for the defendant to provide a list of documents and secondly for that list to be verified by affidavit, the defendant has already provided a list. What the plaintiff really wants is for the informal list to be verified by affidavit as true and correct because of his view that the list is incomplete and does not contain documents relating to the servicing of truck number 6758 on 14 March 2016 or in the period 23 February 2016 to 14 March 2016.
It is also open to the court having regard to the case management provisions found at RSC O 1 r 4B at any time in any proceedings and on its own motion to order all or any party to make, file and serve an affidavit verifying the list of documents discovered.[3] The necessary implication of this rule is that an unverified or informal list of documents is already in existence, as in fact is the position in this case.
[3] RSC O 26 r 7(3)(e).
The case management objectives of the RSC found in O 1 r 4B are to facilitate the determination of the litigation in a manner which is just, timely, efficient and economical in the sense that the costs should be proportionate to the value, importance and complexity of the subject matter in dispute and the financial position of each party.
In the course of hearing submissions I raised as an issue whether this should really be regarded as an application for discovery of particular documents and whether the application should have been brought under RSC O 26 r 6, which allows an application to be made for an order that a party make an affidavit stating whether any specified document of a specified class is or was ever in its possession, custody or power. If so, then the court would have needed evidence which would cause it to be fairly certain the alleged documents exist. A mere suspicion they existed would be insufficient. Similarly on an application pursuant to RSC O 26 r 7(3)(b) for an order for the discovery of a specified class of documents, the criteria to be considered would be the same as applied to a request bought under RSC O 26 r 6.[4]
[4] Perpetual Trustees Company Ltd v Burniston [2012] WASC 26 [28] - [29].
Counsel for the plaintiff, whilst seemingly agreeing that what the plaintiff wanted was in fact further and better discovery, was of the view the issue was adequately addressed by the orders sought in the plaintiff's chamber summons and in particular, order 2 - the list of documents being verified on affidavit.
I do not consider the same test in Perpetual Trustees Company Ltd v Burniston applies to an application for an order the existing list be verified by affidavit.
Conclusion
In my view, the issue as to whether the truck 6758 was repaired, maintained or serviced by the defendant on or about 14 March 2020 is an important factual issue between the parties and even more so given the new particular of negligence that grease had been left above the fifth wheel. On the uncontradicted evidence of the plaintiff that on the afternoon of 14 March 2016 he collected the truck from or in the proximity of the premises of the defendant and the keys to the truck from the office of the defendant whose job it was to service Hansen's trucks, it is understandable that a suspicion arises the defendant worked on the truck on or about the 14 March 2016 and that it was the defendant who put the alleged grease above the fifth wheel. If that had occurred one might reasonably expect there to be some documentation surrounding such an event, such as order/requisition forms, worksheets and invoices.
In my view such documentation, if it exists, might be very significant. Accordingly, the reliability of the list of discovered documents assumes similar importance. I express no views on the likelihood of any further documentation being in existence. However, the concern of the plaintiff is in the circumstances easily understandable and it is important for the administration of justice in this case, and generally, for there to be confidence that discovery has been properly done. In Lampson (Australia) Pty Ltd v Fortescue Metals Group [No 2][5] Murphy JA said:
19The discovery process is very important in ensuring that the parties are accorded a fair trial. Litigants will lose confidence in the courts' processes and decisions if they think that a party might avoid giving proper discovery and not be later held to account: Brookfield v Yevad Products Pty Ltd [2004] FCA 1164 [394].
20A failure to give proper discovery affects both the demands of justice in the individual case, and the public interest in the administration of justice generally: Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134, 141 ‑ 142.
[5] Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217 .
The time and cost and inconvenience associated with swearing an affidavit verifying the list of documents is, in my view, minor, requiring little more than the use of a prescribed form of affidavit (form 18). Having regard to the potential importance of any documentation surrounding the alleged servicing of the truck on or about 14 March 2016, it is in the interest of justice that the list of documents be reliable and that the plaintiff and the public have confidence that it is reliable and that it be, subject to limited exceptions, conclusive of the issue.[6]
[6] Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [19] - [20], [25] - [27].
In the end the defendant's submission that requiring the list of discoverable documents to be verified by affidavit will not change the position may well be proven to be right. Time will tell.
In the circumstances, and having regard to RSC O 26 r 7(3)(e), I would order the defendant make and file an affidavit verifying its list of documents.
If I am wrong in thinking that the plaintiff can apply in circumstances in which, by reason of DCR r 46 the RSC O 26 r 7(1) and r 7(2) do not apply, then I would make the order on my own motion.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Court Officer26 NOVEMBER 2020
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