Belela Pty Ltd v Menzies Evacuation Pty Ltd & Ors

[2004] QSC 478

[2004] QSC 478

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION

McMURDO J

No BS6410 of 2004

BELELA PTY LTD	Applicant
(ACN 003 469 074)
and
MENZIES EXCAVATION PTY LTD	First Respondent
(ACN 050 049 664)
and
I D MILLER	Second Respondent
BRISBANE ..DATE 08/12/2004
ORDER

08122004 T22/BLS4 M/T 3/2004 (McMurdo J)

HIS HONOUR: This is an application filed on behalf of Menzies	1
Excavation Propriety Limited seeking a number of orders. The parties, however, have agreed on all but one matter and that is a question of the cost of the provision of copies of disclosed documents.

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I shall return to that matter in a moment but I shall first record that counsel for Belela Propriety Limited conceded at the outset of the hearing that it was appropriate that his client be ordered to provide an affidavit in relation to its

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disclosure and accordingly, an order in the terms that he

indicated will be made.

The order will be as follows: that by 15 December 2004, Belela

Propriety Limited will cause an affidavit to be filed and

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served on its behalf which verifies a list of documents as all
of the documents to be disclosed by it and which duly makes
any appropriate claim for privilege by listing the documents

for which privilege is claimed.

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I return then to the matter of the costs of the provision of disclosed documents. There is something of an impasse between the parties because the documents disclosed by Belela Propriety Limited have been the subject of a request for copies by Mr Menzies, the director of Menzies Excavation, who

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has been given leave to appear on its behalf, and the
solicitor for Belela, in accordance with long standing
practice, has required Menzies Excavation to provide the cost
of copying the documents at 50 cents a page.
08122004 T22/BLS4 M/T 3/2004 (McMurdo J) 2 ORDER 60

Mr Menzies submits that his company is entitled to copies	1
without any payment. He submits that there is no rule under which the solicitor for Belela can require such a payment before having to make copies.

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In my conclusion, Mr Menzies' submission is correct. It is necessary to make some brief reference to the relevant rules. Rule 214 provides for disclosure by delivery of a list of documents and of copies. Sub rule 1 provides that a party performs the duty of disclosure by doing two things. The

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first, described within paragraph (a) is: "The delivery of a
list of documents."

The second, described within paragraph (b) is: "Where requested by the other party, the delivery of copies of the

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documents mentioned in the list of documents other than
documents in relation to which privilege from disclosure is

claimed."

So on the face of rule 214, where there is a request for

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copies of documents referred to in a list, as has occurred
here, it is part of the obligation to make disclosure for the
disclosing party to have to deliver copies, and by

implication, to produce those copies at its own expense.

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Rule 216 provides for an alternative method of disclosure which is by the production of the documents for inspection and, at the same time, notification to the other party of the place and time at which the documents may be inspected. In 08122004 T22/BLS4 M/T 3/2004 (McMurdo J) 3 ORDER 60

such a case, rule 217 provides that the documents must be	1
produced for inspection but further, that the party producing the documents must:

"Provide facilities (including mechanical and

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computerised facilities) for the inspection and copying
of the documents."

Again, that seems to clearly suggest that the party producing the documents must, at least, facilitate their copying by the

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party to whom they are produced, and free of charge.

No doubt, the practice under which the solicitor for Belela is operating is a long standing one which predates the present order and it usually occasions no difficulty in the conduct of

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litigation.

Nevertheless, strictly speaking, Mr Menzies' point is one which should be upheld and I therefore indicate that the copies which he seeks of disclosed documents must be provided

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to him without his company paying, at the time, some fee for
the expense of copying.

As I have made it clear to him, however, in the course of his submissions, it is a different matter which could arise at the

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end of this litigation in the event that his company is
unsuccessful and is ordered to pay the costs of the
proceedings. It is a different consideration then as to how
08122004 T23/DR26 M/T 3/2004 (McMurdo J) 4 ORDER 60

much of Belela's costs of copying would be recoverable by it	1
as part of its costs of the proceedings.
With that indication in relation to copying, there is no need for any order in relation to inspection and, as I have

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indicated, the parties have otherwise agreed on the outcome of
the application for which the appropriate order is that which

I have made for the filing of an affidavit within seven days.

As to today's costs, Mr Menzies has strongly addressed me in

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terms which are to the effect that I should reserve the costs. each party on this application shall be reserved.

...

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5 ORDER 60