BMW Australia Finance Limited v Nelson
[2008] WADC 41
•22 FEBRUARY 2008 (deliever extemporaneously and typed from tape and edited by Trial Judge
BMW AUSTRALIA FINANCE LIMITED -v- NELSON [2008] WADC 41
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 41 | |
| Case No: | CIV:556/2005 | 22 FEBRUARY 2008 | |
| Coram: | SCHOOMBEE DCJ | 21/02/08 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for further and better discovery granted | ||
| PDF Version |
| Parties: | BMW AUSTRALIA FINANCE LIMITED GRAHAME BRETT NELSON |
Catchwords: | Practice and procedure Further and better discovery Whether plaintiff properly considered its duty to discover all documents relating to any matter in question Whether privileged documents sufficiently identified |
Legislation: | Rules of the Supreme Court 1971, O 26 r 1(1), O 26 r 4(2) |
Case References: | British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709 Insite Pty Ltd & Ors v Midland Cinemas Pty Ltd, unreported; SCt of WA; Library No 970172; 17 April 1997 Mulley & Marney v Manifold (1959) 103 CLR 341 Taylor v Batten (1878) 4 QBD 85 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GRAHAME BRETT NELSON
Defendant
Catchwords:
Practice and procedure - Further and better discovery - Whether plaintiff properly considered its duty to discover all documents relating to any matter in question - Whether privileged documents sufficiently identified
Legislation:
Rules of the Supreme Court 1971, O 26 r 1(1), O 26 r 4(2)
Result:
Application for further and better discovery granted
(Page 2)
Representation:
Counsel:
Plaintiff : Mr R A C Cullen
Defendant : Mr K C Staffa
Solicitors:
Plaintiff : Cullen Babington Hughes
Defendant : Staffa Lawyers
Case(s) referred to in judgment(s):
British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709
Insite Pty Ltd & Ors v Midland Cinemas Pty Ltd, unreported; SCt of WA; Library No 970172; 17 April 1997
Mulley & Marney v Manifold (1959) 103 CLR 341
Taylor v Batten (1878) 4 QBD 85
(Page 3)
1 SCHOOMBEE DCJ: This is an application by the defendant for further and better discovery made by chamber summons filed on 24 September 2007. This matter first came before me on 27 November 2007. After hearing submissions from counsel for the plaintiff and counsel for the defendant, it became apparent that the substituted defence and counterclaim on which the defendant was relying as the framework for the application for further and better discovery had not been filed with leave of the Court. It was also not clear whether it had been served properly. The application was therefore adjourned to a date to be fixed to allow the parties to determine the correct position and whether the plaintiff consented to the defendant being granted leave to file the substituted defence and counterclaim.
2 Since then I have made an order by consent in Chambers that the defendant have leave to file and serve the substituted defence and counterclaim and that the plaintiff have leave to file and serve a defence to the counterclaim. The plaintiff has now served a substituted reply to the defence and a defence to the counterclaim. Accordingly, the application must be decided on the basis of the pleadings currently before the court.
3 Counsel for the defendant indicated at the previous hearing that the defendant no longer requires orders in terms of pars 3(a) to (c) of the chamber summons but only orders in terms of pars 1, 2 and 3(d) to (f).
4 The matter essentially concerns a recovery action by the plaintiff for the balance owing under a hire purchase agreement of a luxury vehicle. The plaintiff served a notice of intention to repossess the vehicle on the defendant on 22 July 2004 and repossessed the vehicle on 2 August 2004 by reason of the defendant allegedly having defaulted in his payments.
5 The defendant's defence is essentially that the amount claimed by the plaintiff in the notice of intention to repossess was incorrect as the defendant had paid the amount of $650 on or about 1 July 2004, that is, prior to the notice of intention to repossess having been issued. The defendant therefore says that the notice of intention to repossess is invalid. The plaintiff's case is that despite the payment of the amount of $650, the defendant was still in arrears at the time when the notice of intention to repossess was issued.
6 The defendant also claims in the counterclaim that the whole hire purchase agreement should be set aside under s 24 of the Hire Purchase Act1959 as the repossession of the vehicle was harsh and unconscionable. The defendant's counterclaim in this regard is based on the fact, now
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- admitted by the plaintiff, that the defendant did pay the amount of $650 just prior to the issue of the notice of intention to repossess but that the plaintiff did not allocate the amount to the defendant's account and mistakenly allocated it to another hirer's account.
7 The defendant further alleges that upon receipt of the notice of intention to repossess he and his wife telephoned and emailed various representatives of the plaintiff and told them that the notice of intention to repossess was overstated by at least $650 and asked that the representatives of the plaintiff check whether they had not received the amount of $650. The defendant alleges that the plaintiff's representatives refused to do so.
8 In the defence to the counterclaim the plaintiff admits one of these telephone calls in which the defendant's wife told a representative of the plaintiff that the defendant had paid a further amount of $650. The plaintiff also says that it credited the payment of the amount of 650 to the defendant's account as soon as it discovered that the cheque which had been received without proper identification of the relevant account was in fact for the defendant's account. The plaintiff otherwise denies the allegations which support the claim of unconscionable conduct.
9 What appears now to be common cause from the plaintiff's affidavits filed by both parties, is that the plaintiff's representatives were unsure as to which account the payment of $650 made by cheque should be credited to and therefore paid the amount into a suspense account. From there it was allocated to the account of another hirer who used to pay in instalments of $650.
10 The defendant's defence and counterclaim is based on additional matters, but for purposes of this application the disputed issues which I have mentioned appear to be the most relevant in relation to the documents sought by the defendant by way of further and better discovery.
11 Pursuant to par (3)(d) of the chamber summons the defendant seeks an order that the plaintiff discover all emails and correspondence that have passed between the plaintiff and the Commonwealth Bank or others pertaining to the said payment of $650. In answer to this request the plaintiff says in its written outline of submissions filed on 19 February 2008, and also filed in the same format for the previous hearing, that the documents sought are not relevant to any matter in question and that the plaintiff has already discovered the transaction inquiry report
(Page 5)
- (document 21) which contains some correspondence in relation to the amount of $650.
12 Counsel for the plaintiff also referred to an affidavit filed on 21 November 2007 by Ms Lowers, the manager of the plaintiff's collections department, in which she says in par 20 that:
"There are no emails or correspondence that have passed between the plaintiff and the Commonwealth Bank or others pertaining to the payment of $650 that have not already been discovered."
13 Pursuant to par 3(e) of the chamber summons the defendant seeks an order that the plaintiff discover all documents provided by the Commonwealth Bank or others to the plaintiff in relation to the said payment. In response the plaintiff says in its outline of submissions that the documents requested are not relevant to the matters in dispute and that Ms Lowers has deposed in her affidavit that there are no documents in relation to the amount of $650 provided by the Commonwealth Bank or others to the plaintiff.
14 Pursuant to par 3(f) of the chamber summons the defendant has requested an order that the plaintiff provide further and better discovery of all diary notes, file notes and records of the plaintiff and the plaintiff's representatives in relation to the said payment including the plaintiff's transaction inquiry report for the defendant's account with the plaintiff from 3 August 2004 to date. In response to this request the plaintiff says in its written submissions that the documents requested are not relevant. The plaintiff further states that it has no further documentation other than the transaction inquiry report which falls into the category of documents requested and that any entries in the transaction inquiry report after 9 August 2004 are irrelevant as by then the vehicle had been repossessed.
15 Ms Lowers says in par 22 of her affidavit that parts of the transaction inquiry report have already been discovered in order to show that the defendant's account was credited with the amount of $650 on 13 August 2007 but that the remainder of the transaction inquiry report relating to the period after 9 August 2004 is privileged because it contains correspondence between the plaintiff and its solicitors.
16 Mrs Lowers states that the plaintiff has no further documents as requested, and that in any event the documents requested do not relate to any matter in issue between the parties because the amount of $650 has already been credited to the defendant's account.
(Page 6)
17 It appears from the tenor of the plaintiff's written submissions as a whole, and also from the oral submissions made by plaintiff's counsel on 27 November 2007, that the plaintiff's view is that any documents relating to the incorrect allocation of the payment of $650 and the inquiries made by the defendant in this regard are irrelevant as the plaintiff has now admitted that the amount of $650 was paid in early July 2004 by the defendant's wife on his behalf.
18 It does not appear that the plaintiff's representatives considered the allegations made by the defendant in his counterclaim regarding the unconscionability of the plaintiff's actions when putting their mind to the question which documents were relevant to the issues in dispute between the parties. It also does not seem that the plaintiff has reconsidered the ambit of the issues in dispute on the pleadings after the adjournment of the previous hearing and the filing of the reply and defence to the counterclaim. No additional affidavit by Ms Lowers or any other representatives of the plaintiff has been filed.
19 It is quite possible that there may be documents such as emails or correspondence between the plaintiff and the Commonwealth Bank or the plaintiff and other parties or notes and records of the plaintiff's representatives which are not strictly relevant to whether the plaintiff received the amount of $650 and what it did with that amount, which issues are no longer in dispute, but are relevant to the overall conduct and attitude by the plaintiff's representatives in respect of the handling of the defendant's account and the response to the defendant's inquiries after he received the notice of intention to repossess.
20 Counsel for the defendant pointed out in his oral submissions that there is at least one email from the plaintiff to the defendant which has not been discovered by the plaintiff. This is an email from a Mr Ben Rezicro, a representative of the plaintiff, which deals with the refinancing of the vehicle and which was sent to the defendant just prior to the issue of the notice of intention to repossess. Counsel for the defendant has submitted that this email indicates that the plaintiff was not concerned about earlier delayed payments of instalments by the defendant and would have allowed the vehicle to be refinanced if not for the amount of $650 having been incorrectly allocated. This email is therefore relevant to the issues raised in the counterclaim regarding unconscionability.
21 Counsel for the defendant has also indicated that the fact that this email was not discovered casts doubt on the assertions by Ms Lowers in her affidavit that the plaintiff does not have any relevant documents in its
(Page 7)
- possession which have not already been discovered. However, it is generally accepted that a Court cannot go behind an assertion made in an affidavit of discovery that there are no further documents, unless there is some reason on the face of the affidavit why it cannot be relied upon. I refer in this regard to Taylor v Batten (1878) 4 QBD 85 at 88.
22 I am not persuaded that the defendant has established by reason only of the existence of one email which has not as yet been discovered, that the investigations made by the plaintiff's representatives into the existence of documents are unreliable. However, taken in conjunction with what appears to be an unduly restricted understanding by Ms Lowers of what the relevant issues are in this matter, in my view the defendant has made out a case that the plaintiff should be required to again consider the categories of documents sought by the defendant in light of a broader understanding of the issues in the case. This means that the plaintiff's representatives should consider whether there are any documents in the plaintiff's possession, power or control as requested in pars 3(d) to (f) of the chamber summons, which are relevant to the unconscionability issues pleaded in the defence and counterclaim or any other issues arising from the pleadings rather than confining the enquiry to issues relevant to the payment of the amount of $650 only.
23 Counsel for the defendant also pointed out that the plaintiff's further affidavit of discovery dated 7 November 2007 did not comply with the rules of the Supreme Court in that the documents in pt 2 of the first schedule are not individually listed. The description of the relevant documents in pt 2 of this affidavit of discovery is as follows:
"Transaction inquiry loan 354003 from 9 August 2004 to 19 September 2007 and 21 September 2007 to date containing almost exclusively records of correspondence with solicitors for the purpose of legal advice in relation to this action."
Reason for non-discovery: subject to solicitor-client privilege."
24 There is no reason why privileged documents cannot be listed as a bundle as long as the contents of the bundle is described with some degree of precision: Insite Pty Ltd & Ors v Midland Cinemas Pty Ltd, unreported; SCt of WA; Library No 970172; 17 April 1997. However, I agree with the submission by counsel for the defendant that the description of the second item in par 2 is inadequate. This description refers to the transaction inquiry loan from 9 August 2004 to 19 September
(Page 8)
- 2007 which "almost exclusively" contains correspondence between the plaintiff and its solicitors for the purpose of legal advice.
25 The words "almost exclusively" indicate that there are some items in the transaction inquiry report after 9 August 2004 which are not correspondence between the plaintiff and its solicitors and the question arises why these documents have not been discovered. The plaintiff's representatives may not have considered such documents relevant as they came into existence in a period after the repossession had taken place. However, that does not mean that such documents could not be relevant to the claim of unconscionability raised in the counterclaim. The duty of a party is to discover any document which relates to any matter in question and which could either damage its own case or assist the other party in establishing its case or defence.
26 Counsel for the defendant further raised the argument that there must be additional documentation prior to 30 March 2005 evidencing inquiries made by the plaintiff with regard to the source of the $650 payment as in a letter by the plaintiff's solicitors of that date, and in an earlier letter of 12 March 2005, they say that the plaintiff "has no record" of a payment by the defendant of the amount of $650. Counsel for the defendant submitted that the plaintiff would not have told its solicitors that it had no record of any such payment unless it had made inquiries in this regard.
27 However, in my view the statement by the plaintiff's solicitors that the plaintiff has no record of the payment of $650 does not necessarily mean that the plaintiff made inquiries regarding the source of the payment prior to 30 March 2005 and that there are definitely documents evidencing such inquiries. The defendant is not entitled to elicit from the plaintiff by way of affidavit of discovery an admission that it made no further inquiries. This is a matter that the defendant can investigate by way of interrogatories at trial (compare Taylor v Batten (supra) at 89).
28 Lastly, counsel for the defendant submitted that once the plaintiff had admitted that it had paid the amount of $650 into the wrong account it followed that there must be documentation evidencing a debit to the other hirer's account and a credit to the defendant's account to correct the incorrect allocation of the payment. However, the plaintiff did discover three additional documents in a further discovery affidavit filed by Ms Lowers sworn on 7 November 2007.
(Page 9)
29 These three documents are described in the affidavit as follows:
"no 29 - transaction inquiry report for loan 354003, 20 July 2007;
number 30, transaction inquiry report for loan 425063, 20 July 2007;
no 31 - BMW Finance Australia daily banking input reconciliation, 30 July 2004."
31 I will hear counsel as regards the costs of this application but I would like to make the following comments with regard to the application generally which are also relevant to the issue of costs. It is difficult to assess at this stage whether the documents already discovered are all there is to be discovered, even if the issues raised on the pleadings are properly taken into account, or whether the plaintiff's representatives will locate and identify further documents once they broaden their search on the basis that they should also consider the counterclaim based on unconscionability and any other matters raised in the counterclaim.
32 A court may make an order requiring further discovery if there are reasonable grounds for being fairly certain that there are other documents which ought to be disclosed or that the party making the affidavit has misconceived the case and would have disclosed further documents if he or she had acted upon a proper view of the law: British Association of Glass Bottle Manufacturers Ltd v Nettlefold[1912] AC 709 at 714 and Mulley & Marney v Manifold (1959) 103 CLR 341 at 343.
33 In the present case I am not certain that there are further documents which have not yet been disclosed. However, I am fairly certain on the basis of the affidavit by Ms Lowers and the submissions made by counsel
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- for the plaintiff that the plaintiff has misconceived the ambit of the case and the relevance of the unconscionability claim.
34 The main reason for allowing this application is therefore not so much the few documents that the defendant has identified as existing and which have not as yet been discovered but the apparent misunderstanding on the basis of which the affidavit by Ms Lowers was sworn to. She seems to have understood that the issues were limited to the correctness of the amount in the notice of intention to repossess and that once the plaintiff had admitted receipt of the amount of $650 any documents relating to how the receipt of the money was dealt with were no longer relevant.
35 I have also considered whether I should reserve costs in order to wait and see whether the plaintiff's representatives do indeed identify any additional documents to be discovered. However, the defendant has succeeded in its application and has identified some shortcomings in the plaintiff's affidavit of discovery. These are issues that should be taken into account when making a decision on the costs.
36 I shall hear the parties on the issue of costs but as far as the application is concerned I am of the view that the defendant's application should succeed and that the defendant should be entitled to orders as per pars 1, 2, 3(d), (e) and (f). of the chamber summons filed on 24 September 2007.