Blue Circle Southern Cement Ltd v Quikcote Victoria Plaster Technologies Pty Ltd
[2002] VSC 376
•28 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4976 of 2002
| BLUE CIRCLE SOUTHERN CEMENT LTD | Plaintiff |
| V | |
| QUIKCOTE VICTORIA PLASTER TECHNOLOGIES PTY LTD | Defendant |
AND
| QUIKCOTE VICTORIA PLASTER TECHNOLOGIES PTY LTD | Plaintiff by Counterclaim |
| V | |
| BLUE CIRCLE SOUTHERN CEMENT LTD | Defendant by Counterclaim |
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JUDGE: | Ashley J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2002 | |
DATE OF JUDGMENT | 28 August 2002 | |
CASE MAY BE CITED AS: | Blue Circle Southern Cement Ltd v Quikcote Victoria Plaster Technologies Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 376 | |
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Appeal – Appeal from Order dismissing an application for particular discovery, refusing a declaration that no trial date had been fixed, and refusing to vacate trial date – appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. B. Griffin | Deacons |
| For the Defendant | Mr. G. H. Garde Q.C. with Mr. A. W. Sandbach | Novatsis & Alexander |
HIS HONOUR:
This is an appeal, by way of hearing de novo, from an order made by a Master dismissing with costs a Summons filed by the defendant on 16 August this year.
By the Summons the defendant sought particular discovery under rule 29.08 of documents described in part as follows:
"1.All correspondence, agreements, invoices, file/diary notes, letters of instruction or advice to and from the Plaintiff to its Solicitors pertaining to all revisions of its printed Conditions of Sale.
2.All correspondence, agreements, specifications, proofs, order forms, file/diary notes, to and from the Plaintiff to its printers pertaining to all revisions of its printed conditions of Sale.
3. All versions of the Plaintiff's printed Conditions of Sale.
4.Plaintiff's letters, circulars or notices to its customers enclosing its printed conditions of Sale.
5.Plaintiff's letters, circulars or notices to its customers notifying variations to its printed conditions of sale."
There is every reason to believe that the defendant knew as at April this year, or at least in early May, which version of the conditions of sale the plaintiff relied upon. No doubt should have been occasioned by the fact that, apparently in error, some later‑existing conditions were exhibited to an affidavit sworn by the defendant's solicitor in opposition to the Summons of 16 August.
The defendant by its summons also sought particular discovery of documents described as follows:
"6.All correspondence, agreements, invoices, file/diary notes, letters of instruction or advice to and from the Plaintiff's representatives pertaining to any local or interstate third party customer complaints about the Plaintiff's failure to manufacture and blend acrylic dry mix render product.
7.Plaintiff's 11 page computer complaints and purported response by the Plaintiff."
By the time the Summons was filed the plaintiff had already provided the defendant with documents relating to problems with the quality of product supplied to a Quikcote Company in 1997; and it had provided the defendant with the very document referred to in paragraph 7 of the schedule.
Finally by its Summons the defendant sought in the alternative a declaration that the proceeding was not fixed for trial on 28 August or that the trial date be vacated.
I should set out some of the chronology of the matter. The plaintiff sues the defendant for goods sold and delivered. The claimed amount, as I understand it, is something less than $35,000 for goods sold and delivered between April and September 1999. The claim was commenced in the County Court on 9 November 1999.
The defendant denies the plaintiff's claim and raises a counterclaim. Essentially it says that it was supplied by the plaintiff with defective goods. The counterclaim, pleaded in contract, was raised by a defence and counterclaim on 20 December 1999.
The counterclaim asserted at the outset that its quantum exceeded the jurisdiction of the County Court; but no application was made to transfer the proceeding to this Court until, it appears, about March 2001.
The reply and defence to counterclaim has gone through three versions: a brief document, generally consisting of denials, dated 27 January 2000; a more extensive document dated 11 September 2001; and a document of which the defendant was given notice in April of this year and which was filed pursuant to leave granted by a Master on 1 May this year. The document of September 2001 and the document of May 2002 are essentially distinguishable by the plaintiff's reliance in the latter upon conditions of sale purporting to extinguish or limit its liability to the defendant.
It is next necessary to note that on 1 February this year the Listing Master's office wrote to the solicitors for the parties in connection with a hearing which was to take place on 5 February. The correspondence indicated that the proceeding would not be fixed for hearing if there were any outstanding interlocutory matters.
On 5 February the parties came before the Listing Master and, subject to the plaintiff filing a notice of trial by 19 February, the matter was fixed for trial on 28 August, on an estimated duration of six to seven days. The Listing Master made orders for the exchange of lists of documents by 31 July and the preparation of a court book. She made orders also for the provision of outlines of evidence of proposed witnesses on or before 21 August.
The plaintiff's solicitors did not file notice of trial until 25 February. That is the basis, as I understand it, of the defendant's contention that the court declare that the proceeding is not fixed for trial on 28 August.
I should next note that the matter came on for a callover before the Listing Master in late July. That was, as those familiar with civil listing in this court know, a significant occasion. If a party is not ready for trial it is important that this be made known to the Listing Master instantly, otherwise the listing process is disrupted.
The defendant's summons filed 16 August can now be seen more clearly in its chronological context. It was filed extremely late in the piece, long after, on the face of it, the matter had been fixed for trial and in circumstances where the trial date remained intact following the callover. It may also be observed at this point that the proceeding, that is both claim and counterclaim, had originally been fixed for trial in the County Court as early as 8 September 2000, a trial date later vacated.
What then of the matters raised by the defendant's very late summons? I go to paragraphs 1‑5 of the Schedule. The defendant says that it needs to know what conditions of sale the plaintiff relies upon. That is understandable. But the plaintiff annexed to its most recent reply and defence to counterclaim and it has discovered that version of the conditions upon which it relies. Perhaps the defendant, however, might wish to contend that some other set of conditions applied. If it did not know whether other sets of conditions were in existence from time to time, but there was reason to believe that might have been so, then perhaps there might be some force to a r. 29.08 application concerning that matter. But that is not the case. Well before the date on which the Summons was filed the plaintiff's solicitors had in fact provided to the defendant's solicitors, whether relevant or not, with other versions of the conditions of sale operating from time to time.
Further, paragraphs 1 and 2 of the Schedule to the Summons are, on their face, far too wide. Presumably their intent is to ascertain the existence or otherwise of secondary material which would indicate when any particular version of the conditions of sale came into operation. But they make an inquiry unlimited as to time, and thus necessarily to material of no relevance to issues arising in this proceeding. Further again, by the time the Summons was filed the defendant had been informed by the plaintiff's solicitors that the plaintiff did not have in its possession documents relating to the time of the variations to its conditions. (see Exhibit CA8 to Mr Alexander's affidavit sworn 16 August 2001). Even if it had been demonstrated that the documents enquired after by paragraphs 1 and 2 did not extend beyond what could possibly have been relevant, in the circumstances the defendant would not have made it appear to the Court that there were grounds for belief that the plaintiff had or had had documents in those classes in its possession.
Paragraphs 4 and 5 of the Schedule are again far too wide and thus address matters of no relevance. Letters, circulars or notices sent by the plaintiff to customers other than the defendant relating to conditions applying, say, in 1997 or, say, in 2000 could have no possible relevance to this proceeding. Yet, in terms, paragraphs 4 and 5 enquiries after such documents.
I turn to paragraphs 6 and 7 of the Schedule. Paragraph 7, as I have already said, refers to a document which had in fact been provided to the defendant well before the date on which the summons was filed. It was not sensible for the defendant to enquire after the existence of a document which had already been produced.
Then, as to paragraph 6 of the Schedule, prior to the time when the defendant filed its summons the plaintiff had already provided it with copies of documents relating to complaints earlier made about the manufacturing standard of acrylic dry mix render. The documents, indeed, referred to complaints made by a Western Australian Quikcote company in 1997.
Before me, counsel for the plaintiff conceded that there is an issue between the parties as to the nature and extent of any adulteration of product which his client supplied to the defendant; and that evidence of adulteration of product in the course of the same manufacturing process at an earlier time could be relevant to show that there was a fault in the manufacturing process at a relevant time. According to the affidavit of the plaintiff's solicitor to which I earlier referred, however, the plaintiff has made full discovery of all documents relating to any issue between the parties. I see no reason why that portion of affidavit ought be disregarded in considering whether the defendant has made it appear to the Court that documents of particular classes may be or may have been in the possession of the plaintiff and thus whether an order should be made under rule 29.08.
For a constellation of reasons, not just one, I think that the Master was entirely correct in rejecting the application for particular discovery made by paragraph 1 of the defendant's summons. In saying that I make it clear that I have concluded, on the appeal by rehearing de novo, that the application should be rejected.
I turn next to the application that made in the alternative by paragraphs 2 and 3 of the summons. I think that there was a point to a contention that the proceeding had not been fixed because the plaintiff had not complied with the condition that a notice of trial be filed by 19 February this year. But the Master was not obliged to regard that default as having abrogated the trial date. It was always open to the court to absolve the plaintiff from its failure strictly to abide the order made. Where there had been a flurry of activity between February and August this year in order to prepare the proceeding for trial, and where there had been a callover in late July at which time the trial date had been confirmed, I think the Master was entitled to give the suggestion that the matter had not been fixed short shrift. I do so myself.
The Master was alternatively confronted, about a week prior to trial, with an application to vacate the trial date. That application in part depended upon the proposition that the plaintiff should make further discovery, a proposition without merit.
The application otherwise depended upon the assertion that the defendant had recently become aware of the existence of a potential witness, that is, someone who could speak of the nature and extent of the adulteration of product supplied to a Quikcote company in 1997; and upon the circumstance that such person had been ascertained to be overseas. As against that, the defendant had itself filed material showing that at least one other person, a Mr Garner, knew something about the 1997 problem. There was nothing before the Master to suggest that Mr Garner was unavailable or, alternatively, that he could not speak directly about whatever problem there had then been.
Further, by her affidavit in opposition, which was apparently only delivered to the defendant's side in the course of the hearing before the Master, the plaintiff's solicitor deposed, in substance, that a director of the defendant, Mr Robert Forbes, had known from 1997 of the problems encountered at that time. This assertion carried with it, inferentially, the proposition that the defendant had been well able, since 1997, to get its house in order so far as witnesses were concerned.
Bearing in mind the fact that the matter came before the Master, as I have said, about a week before a trial date which had been fixed more than six months earlier, and bearing in mind the evident weaknesses in the defendant's contentions about problems with a potential but absent witness, I think that the Master's decision not to vacate the trial was entirely understandable, and correct. Placing myself at that time, I should so decide.
It remains to mention one further matter. Today, junior counsel for the defendant submitted that there was a technical problem with the affidavit of the plaintiff's solicitor; and that in consequence I should pay no attention to those paragraphs in the affidavit suggesting that Mr Forbes knew about the problems experienced by the other Quikcote company in 1997. Counsel for the plaintiff conceded that such a problem existed. In the circumstances I have put that material to one side in determining this appeal which is, as I have said, by rehearing de novo. It has made no difference. There is other material which strongly suggests that there was an avenue of inquiry available to the defendant concerning which there was no material, whether before the Master or me, as to whether any step at all had been taken.
The appeal should be dismissed with costs.
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