BREWER & ANOR -v- COLONIAL PORTFOLIO SERVICES LTD & ORS [2004] WASC 153 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 153 (S)
Case No:	CIV:2538/2001	Heard:	22 JUNE 2004
Coram:	MASTER SANDERSON	Delivered:	8/07/04
Supplementary Delivered:	2/03/05
No of pages:	4	Judgment Part:	1 of 1
Result:	Inspection allowed
Category:	B
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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

CITATION : BREWER & ANOR -v- COLONIAL PORTFOLIO SERVICES LTD & ORS [2004] WASC 153 (S) CORAM : MASTER SANDERSON HEARD : 22 JUNE 2004 DELIVERED : 8 JULY 2004 SUPPLEMENTARY
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.

The case of Brewer v Colonial Portfolio Services Ltd, which was heard by Master Sanderson in the Supreme Court of Western Australia, revolves around the issue of document inspection. The plaintiffs, Kevin Charles Brewer and Dianne Merrilyn Brewer, sought to inspect certain discovered documents held by the defendants, Colonial Portfolio Services Ltd, Westgate Property Investments Pty Ltd, Savoy Management Pty Ltd, Andrew Page, and Ian Wilson. The plaintiffs' application was to compel the defendants to provide copies of specific documents, as they believed the inspection process had been improperly restricted. The court's task was to determine whether the defendants were justified in limiting the inspection of documents, and if the plaintiffs were entitled to inspect and copy the discovered documents as requested.

The legal issues in this case primarily concerned the scope of document inspection rights under the court's rules and the proper procedure for amending a list of discovered documents. The plaintiffs argued that the defendants had improperly restricted the inspection of documents and that they were entitled to inspect all documents listed in the first affidavit of discovery. The defendants, on the other hand, contended that they had the right to limit the inspection process and that the plaintiffs' request for inspection was excessive and unnecessary. The court had to assess whether the inspection rights of the plaintiffs were being unduly restricted and whether the defendants' actions were justified under the circumstances.

Master Sanderson, in his decision, acknowledged an error in the initial reasons for judgment regarding the number of documents inspected by the plaintiffs' representative. Despite this error, the court determined that the plaintiffs were indeed entitled to inspect the discovered documents. The court reasoned that although only two specific documents were inspected, the initiation of the inspection process established the plaintiffs' right to inspect all documents listed in the first affidavit of discovery. The court further held that the defendants were not permitted to amend their list of documents once it had been filed, as it appeared the defendants had changed their stance on the discoverable documents. Consequently, the court ruled that the plaintiffs should be allowed to inspect and take copies of the discovered documents as requested.

The final outcome of the case was that the plaintiffs, Kevin Charles Brewer and Dianne Merrilyn Brewer, were granted permission to inspect and copy the discovered documents listed in the defendants' first affidavit of discovery. The court's decision emphasised the importance of adhering to the proper procedure for document inspection and highlighted the limitations on amending a list of discovered documents once it has been filed. The court's ruling ensured that the plaintiffs' rights to inspect relevant documents were upheld, thereby facilitating the fair conduct of the legal proceedings.

Brewer v Colonial Portfolio Services Ltd

BREWER & ANOR -v- COLONIAL PORTFOLIO SERVICES LTD & ORS [2004] WASC 153 (S)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established