Brownley v Minara Resources Ltd [No 2]
[2007] WASC 279
•21 NOVEMBER 2007
BROWNLEY -v- MINARA RESOURCES LTD [No 2] [2007] WASC 279
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 279 | |
| Case No: | CIV:1313/2005 | 9 NOVEMBER 2007 | |
| Coram: | TEMPLEMAN J | 20/11/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | AMY BROWNLEY ELVIS STOKES EDITH POLAK ANTHONY MEREDITH DION MEREDITH NEIB ABORIGINAL CORPORATION AS TRUSTEE FOR THE WONGATHA ABORIGINAL CHARITABLE TRUST MINARA RESOURCES LTD (ACN 060 370 783) |
Catchwords: | Practice and procedure Defendant's application for further discovery Whether adequate reasons for failure to discover Documents already discovered by defendant Whether utility in orders sought Plaintiffs' steps or enquiries unclear Whether joint ownership of the documents enough to deny access for compiling appropriate list |
Legislation: | Rules of the Supreme Court 1971 (WA), O 26, O 29 |
Case References: | Kearsley v Philips (1883) 10 QBD 465 Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 Lonrho Ltd v Shell Petroleum Co Ltd [1980] QB 358 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ELVIS STOKES
EDITH POLAK
ANTHONY MEREDITH
DION MEREDITH
First Plaintiffs
NEIB ABORIGINAL CORPORATION AS TRUSTEE FOR THE WONGATHA ABORIGINAL CHARITABLE TRUST
Second Plaintiff
AND
MINARA RESOURCES LTD (ACN 060 370 783)
Defendant
Catchwords:
Practice and procedure - Defendant's application for further discovery - Whether adequate reasons for failure to discover - Documents already discovered by defendant - Whether utility in orders sought - Plaintiffs' steps or enquiries unclear - Whether joint ownership of the documents enough to deny access for compiling appropriate list
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Legislation:
Rules of the Supreme Court 1971 (WA), O 26, O 29
Result:
Application granted
Category: B
Representation:
Counsel:
First Plaintiffs : Mr S K Dharmananda & Mr N D Ellery
Second Plaintiff : Mr S K Dharmananda & Mr N D Ellery
Defendant : Mr S M Davies & Ms E J Jones
Solicitors:
First Plaintiffs : Corrs Chambers Westgarth
Second Plaintiff : Corrs Chambers Westgarth
Defendant : Blake Dawson Waldron
Case(s) referred to in judgment(s):
Kearsley v Philips (1883) 10 QBD 465
Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627
Lonrho Ltd v Shell Petroleum Co Ltd [1980] QB 358
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1 TEMPLEMAN J: The defendant in this action seeks orders for further discovery against the plaintiffs, pursuant to O 26 r 6 of the Rules of the Supreme Court 1971 (WA) and the court's inherent jurisdiction. The defendant's application is in the following terms:
Within 14 days from the date of this order the plaintiffs do make and file an affidavit:
(a) stating whether the documents listed in the annexed Schedule are or have at any time been in their possession, custody or power and if not then in their possession, custody or power when they parted with them and what has become of them and that they do within the same period serve a copy thereof on the defendant;
(b) stating what tasks the plaintiffs and their solicitors have completed in relation to discovery including all efforts to discover relevant documents listed in the annexed Schedule; and
(c) providing discovery of any documents recording efforts made by the plaintiffs and/or their solicitors to obtain documents from the plaintiffs' agents or former agents.
The grounds of this application are:
(a) the discovery provided by the plaintiffs is inadequate; and
(b) despite conferral, the plaintiffs have not adequately explained the reason for the failure to discover documents listed in the Schedule.
3 Order 26 r 6 of the Rules of the Supreme Court provides, so far as relevant:
(1) Subject to Rule 7 the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document specified or described is, or has at any time been, in his possession custody or power, and if not then in his possession custody or power when he parted with it and what has become of it.
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- …
(3) An application under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has, or at some time had, in his possession, custody or power the document or class of document specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.
4 The affidavit in support of the defendant's application is made by the solicitor who has the conduct of the matter on its behalf. The affidavit satisfies the requirements of O 26 r 6. That is to say, the affidavit contains evidence that the plaintiffs have, or at some time had, in their possession, custody or power, the documents described in the application and that those documents are relevant to issues arising in the action.
5 Although there was some argument about relevance at the hearing, the fact that the point is arguable leads me to the conclusion that I should assume relevance for present purposes. Indeed, the plaintiffs' principal ground of opposition to the application is the lack of utility in the orders sought. In essence, they submit that because the defendant has discovered the documents, there is little point in the plaintiffs doing so, particularly having regard to the difficulties to which I shall refer in a moment.
6 Against that, the defendant submits that the plaintiffs have apparently not discharged their discovery obligations and that in a substantial action such as this in which many millions of dollars are in issue, when the plaintiffs are funded by a substantial litigation funder, there is no reason for the plaintiffs to be excused from those obligations.
7 The documents in the schedule to the defendant's application are grouped by reference to the persons who appear to have sent or received the documents in question. The largest group includes some 330 documents said to have been sent to or by Marcus Holmes, mostly in 1996 - 1997.
8 I am told that Mr Holmes was then a solicitor employed by the Aboriginal Legal Service (ALS) which was the solicitor for one or more of the plaintiffs at the time material to the events in issue. The ALS is not acting for the plaintiffs in the current litigation.
9 The defendant's complaint about the plaintiffs' allegedly inadequate discovery prompted one of the first plaintiffs, Dion Meredith, to make an affidavit on 1 June 2007. In his affidavit, Mr Meredith said he and another of the first plaintiffs, Elvis Stokes, were 'mainly responsible' for
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- locating discoverable documents in the proceedings. Mr Meredith went on to say:
5 During the process of locating documents to produce the list of documents referred to in paragraph 3, Elvis Stokes and I took steps to obtain documents and make enquiries as to the location of documents directly or through the plaintiffs' solicitors from:
(a) the Goldfields Land and Sea Council;
(b) Phillips Fox;
(c) Mony de Kerloy;
(d) Bird Cameron;
(e) Goolburthunoo Pty Ltd;
(f) Marcus Holmes;
(g) Greg Ben; and
(h) NEIB Aboriginal Corporation.
11 In any event, in discharging their obligation to give discovery of documents in their possession, custody or power, it would have been necessary for the plaintiffs to make enquiry of the ALS itself.
12 Although no reference is made to any such enquiry in Mr Meredith's affidavit, it appears from correspondence exhibited to the affidavit in support of the application, that some such enquiry was made. A letter dated 27 September 2007 from the plaintiffs' solicitors to the defendant's solicitors (exhibit EJJ14) contains the following statement:
We confirm that we have asked the Aboriginal Legal Service (ALS) for access to potentially discoverable documents. The ALS has asked for signed authorities from both the Goolburthunoo and Bibila Lungutjurra groups as the ALS acted for both groups during the negotiations. Where a document is held jointly by a party and a non party to the action, the party is not obliged to produce the document (Kearsley v Philips (1883) 10 QBD 465). Further, a document is only in a party's power if the party has a
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- presently enforceable right to inspect or obtain possession of the document from the person holding it without the need to obtain consent from anyone else (Lonrho v Shell Petroleum Co [1980] QB 358). As the Bibila Lungutjurra have not provided their consent to obtaining access to any documents that may be held by the ALS, our clients do not have an enforceable right to obtain the documents. Nevertheless, our clients are aware of the continuing obligation to discover documents and if at some point the Bibila Lungutjurra provide their consent, our clients will take steps to obtain any documents held by the ALS.
13 In my view, neither of the authorities to which the plaintiffs' solicitors referred, assist them in the present case. Kearsley v Philips (1883) 10 QBD 465 was concerned with inspection of documents in the joint possession of the defendant and another person. Brett LJ (with whom Cotton and Bowen LJJ agreed) held that:
A party who applies to see documents which, as in the present case, are in the joint possession of the defendant and another person, has no right to do so, and that in order to establish that such party has not such right, the defendant who refuses to give inspection is not required to shew that he had endeavoured to obtain the consent of such other person to the inspection, because he is not bound to do so.
14 The question whether or not there should be inspection arises only after discovery has been given. In Kearsley v Philips, there was no argument about the obligation to give discovery: that had already been done. As appears from the report, the defendant had
made an affidavit of documents in which he stated that he and [a third party] jointly had in their possession or power the documents mentioned in the second schedule to such affidavit, that such documents were the muniments of title of himself and the [third party] … and that he the defendant objected to produce those documents. (my emphasis)
15 The question in Lonrho Ltd v Shell Petroleum Co Ltd [1980] QB 358 was whether a company had 'power' over documents in the possession of a subsidiary company. The Court of Appeal (in the decision to which the plaintiffs' solicitors referred) held that the answer to the question would depend upon the facts of each case. On appeal, the House of Lords held that on the true construction of the English rule, which is in relevantly identical terms to O 26 r 1, a party had a document in his 'power' only if he had a presently enforceable legal right to obtain inspection of the document from whoever actually held it, without the need to obtain the consent of anyone else: Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627.
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16 The point of distinction between the Lonrho case and the present case, is that here, the documents are said to be in the joint ownership of the plaintiffs and third parties. That was not so in Lonrho, but it was the position in Kearsley v Philips.
17 There may well be issues about inspection, but in my view, being joint owners of the documents in the possession of the ALS, the present plaintiffs are entitled to access to their documents for the purpose of compiling an appropriate list.
18 The situation in the present case is complicated by conflicting information which has been provided to me by the plaintiffs.
19 At the hearing, counsel for the plaintiffs said:
I am instructed that there is some warehouse somewhere, a whole stack of materials from a particular period of the ALS's which hasn't been categorised or catalogued, and until the relevant consents are obtained, no one is going to get access to that material. (ts 87)
20 My immediate comment was that while I did not doubt what I had been told by counsel, this was not a satisfactory way to proceed.
21 It then transpired that there must have been a misunderstanding between counsel and those instructing him. Following the hearing, the plaintiffs' solicitors wrote to my associate referring to the statement made by counsel to which I have referred above. The solicitors said:
This is inaccurate. The ALS have not informed us that there is either a box of documents or any files relevant to the proceeding. The ALS have informed us that, if they do have any documents relevant to this matter, those documents are likely to be archived. To our knowledge, the ALS do not know with any certainty where any such documents (if they indeed exist) are located, nor have the ALS identified any particular documents or files relevant to this proceeding.
22 The plaintiffs' solicitors copied their letter to the defendant's solicitors who responded with a howl of protest. They, in turn, referred to an affidavit sworn on 2 November 2007 by the solicitor having conduct of the matter on behalf of the plaintiffs. Exhibited to that affidavit is a letter from the plaintiffs' solicitors to the defendant's solicitors (NDE06) in which it is said:
The only source from which our clients have not been able to obtain access to documents which may potentially be relevant is the ALS. As we have previously explained, (at the meeting on 25 September 2007 and in our letters of 10 August 2007 and 27 September 2007) the ALS has refused to
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- provide access to documents in its possession on the grounds that those documents are held on behalf of our clients and the Bibila-Lungutjarra people and, as a consequence, they cannot be released without the consent of the Bibila-Lungutjarra people. To date the Bibila-Lungutjarra people have withheld their consent. Our clients are aware of their continuing obligations with respect to discovery and are continuing to press for the Bibila-Lungutjarra people's consent to access the documents. Should the Bibila-Lungutjarra people change their position and, as a consequence, our clients are able to obtain access to documents in the possession of ALS, any relevant documents will be discovered at that time.
23 The situation as it has emerged in relation to the ALS is most unsatisfactory. On the view I take, the plaintiffs are entitled to have access to documents held on their behalf by the ALS, whether or not those documents are held jointly for any other person or entity.
24 Although the plaintiffs may have no right to remove the documents in question, I consider that they are entitled to such access as will enable them to discharge their discovery obligations.
25 However, in the absence of clear evidence about the extent or whereabouts of documents held by the ALS, I do not think it appropriate to make any order at this stage in relation to the documents listed in the schedule to the application which are said to have been sent or received by Mr Holmes.
26 I do not think I can do any more at this stage than direct that a copy of these reasons be given to the Chief Executive Officer of the ALS so that the ALS may consider its position.
27 If there are difficulties in locating or identifying potentially discoverable documents, I would require to be told that directly by a responsible officer of the ALS, either by affidavit or by that officer attending at court.
28 Further, I think that enquiry needs to be made not only whether the documents listed in the annexure to the application are or have been in the possession of the ALS, but whether it has or had any other discoverable documents.
29 As to the documents listed in the schedule to the application, other than those referable to Mr Holmes, I consider that the defendant is entitled to the order it seeks in par (a) of the application.
30 That is because the obligation to give discovery extends beyond the making of a list of discoverable documents. Order 26 r 4(1) requires a
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- party to make a list in form 17 of the Supreme Court forms: Seaman on Civil Procedure [6085]. This requires the party to identify documents which have been, but are not now, in the party's possession, custody or power stating when that was last the case and stating also what has become of those documents and in whose possession they are now.
31 It is therefore, no answer to the application to say that because the documents have been discovered by the defendant, there is no utility in requiring the plaintiffs to comply with their discovery obligations.
32 There are seven persons or organisations identified in the schedule to the application (other than Mr Holmes) who or which are said to have sent or received the documents listed against their respective names.
33 In most cases, the numbers of documents involved are not large and it should therefore not be overly onerous for the persons concerned to consider the relevant documents and to provide such information as they can.
34 The defendant seeks orders in terms of pars (b) and (c) of the application because of its concern that the plaintiffs have not given sufficient attention to their discovery obligations. The concern arises not only from the fact that the plaintiffs have not discovered the 600 documents listed in the schedule to the application, but because they have discovered only some 450 documents as against some 3,000 documents discovered by the defendant.
35 Having regard to the way in which the plaintiffs have approached the question of discovery of documents in the hands of the ALS, I think this is a legitimate concern. I have referred above to the affidavit made on 1 June 2007 by Mr Meredith, in which he said he and Mr Stokes had taken steps to obtain documents from various persons and entities listed. I think that in the circumstances, the plaintiffs were quite right to make that affidavit: but it did not go far enough. As I have noted above, the affidavit did not provide any detail of the steps taken in relation to discovery.
36 The court has wide powers under O 29 r 2(1) to make such orders or give such directions leading to the efficient and timely disposal of proceedings as the court may consider just and expedient.
37 In the present case, I think the defendant is entitled to have the plaintiffs and their solicitors now provide the detail that is lacking in Mr Meredith's affidavit.
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38 I do not think it necessary to make orders precisely in the terms of pars (b) and (c) of the application. That is because, if letters have been written or received by the plaintiffs or their solicitors in the course of carrying out their obligations to give discovery, those materials can be exhibited to the relevant affidavits.
39 I therefore propose simply to indicate that I will make the orders foreshadowed in these reasons and direct counsel to confer for the purpose of preparing a minute of orders which satisfy these requirements.
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