Brewer v Colonial Portfolio Services Ltd
[2004] WASC 153 (S)
BREWER & ANOR -v- COLONIAL PORTFOLIO SERVICES LTD & ORS [2004] WASC 153 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 153 (S) | |
| Case No: | CIV:2538/2001 | 22 JUNE 2004 | |
| Coram: | MASTER SANDERSON | 8/07/04 | |
| 2/03/05 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Inspection allowed | ||
| B | |||
| PDF Version |
| Parties: | KEVIN CHARLES BREWER DIANNE MERRILYN BREWER COLONIAL PORTFOLIO SERVICES LTD (ACN 066 649 241) WESTGATE PROPERTY INVESTMENTS PTY LTD (ACN 008 713 175) SAVOY MANAGEMENT PTY LTD (ACN 008 684 820) ANDREW PAGE IAN WILSON |
Catchwords: | Supplementary decision |
Legislation: | Nil |
Case References: | Re Briamore Manufacturing Ltd (In Liq) [1986] 3 All ER 132 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 2 MARCH 2005 FILE NO/S : CIV 2538 of 2001 BETWEEN : KEVIN CHARLES BREWER
- DIANNE MERRILYN BREWER
Plaintiffs
AND
COLONIAL PORTFOLIO SERVICES LTD (ACN 066 649 241)
WESTGATE PROPERTY INVESTMENTS PTY LTD (ACN 008 713 175)
First Defendants
SAVOY MANAGEMENT PTY LTD (ACN 008 684 820)
Second Defendant
ANDREW PAGE
Third Defendant
IAN WILSON
Fourth Defendant
(Page 2)
Catchwords:
Supplementary decision
Legislation:
Nil
Result:
Inspection allowed
Category: B
Representation:
Counsel:
Plaintiffs : Mr S G Leslie
First Defendants : Ms F A Skrzypek
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiffs : Wilson & Atkinson
First Defendants : Minter Ellison
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Re Briamore Manufacturing Ltd (In Liq) [1986] 3 All ER 132
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: On 8 July 2004 I published reasons in this matter indicating that I would order the defendant to provide copies of certain discovered documents. Subsequent to the publication of those reasons counsel has advised that they contained an error of fact. The error is of some significance and warrants the publication of these supplementary reasons.
2 In par 2 of the reasons I quoted extensively from an affidavit of Frances Angela Skrzypek. In par 7 of that affidavit, Ms Skrzypek says that Mr Leslie, of the plaintiffs' solicitors, inspected the First Discovered Documents at the first-named first defendant's solicitors' offices. In fact, it seems that Mr Leslie only inspected two documents. These were documents numbered 92 and 229. It was subsequent to this first inspection that Mr Leslie was advised by Ms Skrzypek that further inspection of documents would not be permitted. This position was reflected by the orders sought in par 2 of the application: see par 3 of the reasons. The question now is whether the outcome of the application is affected by the error of fact contained in the original reasons.
3 The ratio of my original decision was found in par 7 of the reasons. What in fact is needed is an order for inspection. There is, of course, no provision in the Rules allowing for an amendment to a list of documents. Perhaps, as suggested by Hoffman J in Re Briamore Manufacturing Ltd (In Liq) [1986] 3 All ER 132, amendment might be possible if it could be established that there had been a slip or some other error made due to inadvertence. But that is not this situation. Moreover, although only two documents had been inspected by Mr Leslie, inspection had commenced. At the time Mr Leslie attended at the first-named first defendant's solicitors' offices there could have been no argument about his right to inspect the documents. To that extent, at least, I think, inspection has taken place. I accept, however, that to view the position in that way may be nothing more than semantics.
4 I am not satisfied that this is a case where the defendant should be permitted to amend its list of documents. It is always open to a party to file a supplementary list of documents; but that is not this case. There is no suggestion that the defendant discovered documents as a result of an error. Rather, the defendant appears to have changed its mind about what documents should be discovered. In my view, having filed the first affidavit of discovery it was too late for it to change its mind.
5 I am satisfied that the plaintiffs should both be entitled to inspect the first discovered documents and to take copies of those documents.
(Page 4)
6 In other words, I am still satisfied that there ought be an order in terms of the application.
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