Brewer v Colonial Portfolio Services Ltd
[2004] WASC 153 (S2)
•8 JULY 2004
BREWER & ANOR -v- COLONIAL PORTFOLIO SERVICES LTD & ORS [2004] WASC 153 (S2)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 153 (S2) | |
| Case No: | CIV:2538/2001 | 22 JUNE 2004, 22 MARCH 2005 | |
| Coram: | MASTER SANDERSON | 8/07/04 | |
| 20/07/05 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Order refused | ||
| 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: | Practice and procedure Discovery of documents Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 26 r 2 |
Case References: | Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Re Briamore Manufacturing Ltd (In Liq) [1986] 3 All ER 132 Land Corporation of Canada v Puleston (1884) WN 1 Palermo (1883) 9 P6 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 20 JULY 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:
Practice and procedure - Discovery of documents - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 26 r 2
Result:
Order refused
Category: B
Representation:
Counsel:
Plaintiffs : Mr S G Leslie
First-named First Defendant : Mr P Van Der Zanden
Second-named First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiffs : Wilson & Atkinson
First-named First Defendant : Minter Ellison
Second-named First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Re Briamore Manufacturing Ltd (In Liq) [1986] 3 All ER 132
(Page 3)
Case(s) also cited:
Land Corporation of Canada v Puleston (1884) WN 1
Palermo (1883) 9 P6
(Page 4)
1 MASTER SANDERSON: This is the second supplementary judgment in relation to this matter. There has been some confusion (at least in my mind) as to the true facts in this case. The parties have now agreed a statement of facts. Rather than risk further confusion, I intend to set out these agreed facts. They are as follows:
1. Mr Leslie, of the plaintiffs' solicitors, attended the offices of Minter Ellison on 2 July 2003 and 22 August 2003. At the time of these inspections, only the documents which the first-named first defendant had discovered by its affidavit sworn by Kelvan William O'Connor on 6 May 2003 were available for inspection. Only two of the documents the subject of this application had been discovered at the time of the inspections. These were documents numbered 92 and 229. These two documents, and a number of other documents which are not the subject of this application, were inspected by Mr Leslie.
2. By an affidavit of discovery of Mr O'Connor sworn 18 September 2003, the first-named first defendant filed its second affidavit of discovery. That affidavit discovered the documents referred to in paragraph 3 of the plaintiffs' application. Those documents had been provided to it by the agent of the Current Owners of the Centre subsequent to the swearing of the first affidavit of discovery.
3. On 12 November 2003 the documents referred to in paragraphs 2 and 3 of the plaintiffs' application, amongst others, were, at the request of the Current Owners, returned to the Centre. Before that occurred, the first-named first defendant took copies of those documents for the purposes of these proceedings. The documents created by that copying are those referred to in paragraphs 4 and 5 of the plaintiffs' application. (Paragraphs 4 and 5 refer to the same documents).
4. On 3 February 2004, the first-named first defendant filed and served its third affidavit of discovery (sworn 30 January 2004) reflecting the fact that documents (including those documents referred to in paragraph 2 and 3 of the plaintiffs' application) had been returned to the Centre and were no longer in the possession, custody or power of the first-named first defendant, and that further relevant documents had been brought into existence (being
(Page 5)
- the copy documents referred to in paragraphs 4 and 5 of the plaintiffs' application) but which the first-named first defendant claimed privilege in respect of.
- 5. Mr Leslie has attended at Minter Ellison for inspection on two occasions. Both occasions were before the second affidavit of discovery, and as such, there was no issue of the documents referred to in paragraph 3 of the plaintiffs' application being made available for inspection. Further, the documents referred to in paragraphs 4 and 5 of the plaintiffs' application did not exist at the times of the inspections.
2 It is the first-named first defendant's submission that the situation in respect of documents numbered 92 and 229 (the documents referred to in par 2 of the plaintiffs' application) and which were inspected by Mr Leslie is akin to that in Re Briamore Manufacturing Ltd (In Liq) [1986] 3 All ER 132. That is the case to which I made extensive reference in the original reasons. The documents referred to in pars 3, 4 and 5 of the plaintiffs' application were not inspected by Mr Leslie. Further, this is not a case where Mr Leslie, when he attended on the first-named first defendant's solicitors to inspect documents did not inspect discovered documents for one reason or another. On that basis, it is submitted that Re Briamore (supra) is of no application.
3 It is further submitted on behalf of the first-named first defendant that this is not a case of amending a list of documents. Rather, it is said, it is a case where the factual circumstances have changed. A second affidavit of discovery was sworn because further documents came into the first-named first defendant's possession, custody or power. A third affidavit was filed because documents that were previously in the first-named first defendant's possession, custody or power ceased to be so (because the true owners required them to be return) and because further relevant documents had been created.
4 Furthermore, the first-named first defendant said that this is not a case where a document was initially made available for inspection, but subsequently a claim for privilege to that document has been raised. The privilege that is claimed by the first-named first defendant is made in respect of copies of documents made by the first-named first defendant's solicitors. These copies were first discovered in Pt 2 of the first schedule of the third affidavit of discovery and a claim for privilege was made. It is submitted that the only way that the first-named first defendant can provide copies of documents referred to in par 3 of the plaintiffs'
(Page 6)
- application is for the first-named first defendant to take copies of its privileged documents. It is submitted that this is inconsistent with the authority of Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
5 As to the documents referred to in paragraphs numbered 4 and 5 of the plaintiffs' application, it is submitted that these copies fall squarely under the authority of Propend (supra) and inspection should be refused.
6 With the greatest hesitation, I have reached the conclusion that the first-named first defendant's arguments must succeed. Under O 26 r 2 of the Rules of the Supreme Court1971 (WA), there is, on a party to an action, what that rule describes as a "continuing obligation to give discovery". The rule anticipates that, after discovery has been given, documents may be found or created which are discoverable. When that happens, the party in possession of the documents must file and serve on the other parties "a supplementary list": see O 26 r 2(6). It was in compliance with that rule that the first-named first defendant filed the affidavit of discovery of Mr O'Connor sworn 18 September 2003.
7 What O 26 r 2 does not anticipate is a situation where documents which had been discovered ceased to be in the possession, custody or power of the party. It also does not anticipate that those documents had been copied so as to render them privileged. But at least by implication a party who no longer has documents which have been discovered is required to file a supplementary list. This must be the case if for no other reason than to put the other party or parties on notice that the position with respect to documents has changed. After all, the rule is all about disclosure and allowing the parties to know what documents are available and where they may be found. On that basis, the third affidavit of discovery sworn 30 January 2004 was properly filed.
8 In the circumstances, then, the plaintiffs are not entitled to the relief they seek. As counsel for the first-named first defendant submitted, the only way in which the first-named first defendant could provide copies of the documents referred to in par 3 of the plaintiffs' application is for the first-named first defendant to take copies of the privileged documents. There is no warrant for such an order. As to the documents referred to in paragraphs numbered 4 and 5, those documents fall squarely under the authority of Propend and inspection should be refused.
9 Accordingly, and belatedly, I would refuse the plaintiffs' application. I will hear the parties as to the form of orders and as to costs.
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