Clinical Laboratories Pty Ltd v General Practice Support Services Pty Ltd
[2013] NSWSC 624
•14 May 2013
This decision has been amended. Please see the end of the decision for a list of the amendments.
Supreme Court
New South Wales
Case Title: Clinical Laboratories Pty Ltd v General Practice Support Services Pty Ltd Medium Neutral Citation: [2013] NSWSC 624 Hearing Date(s): 14 May 2013 Decision Date: 14 May 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Notice of motion adjourned.
Catchwords: Procedure - no question of principle. Category: Interlocutory applications Parties: Clinical Laboratories Pty Ltd (Plaintiff)
General Practice Support Services Pty Ltd (First Defendant)
Tufiq Shah (Second Defendant)Representation - Counsel: Counsel:
T. Holmes (Plaintiff)
B. Le Plastrier (Second Defendant)- Solicitors: Solicitors:
Gadens Melbourne (Plaintiff)File Number(s): 2012/329959
EX TEMPORE JUDGMENT
Before me is a notice of motion seeking the striking out of the defence on the basis of a non-compliance with an order requiring the defendant to provide a list of documents. An order for a list has been made on two previous occasions, although it must be said that the relevant order appears to have been deficient in that it did not identify either categories of documents or any other basis for defining the scope of discovery.
Yesterday a piece of paper entitled "List of Documents" was filed in the court. It included an affidavit from the principal of the defendant, who is also the second defendant, setting out the usual form of what is contained in such an affidavit. It refers to the documents in Part One and Part Two of a list of documents, but nowhere is any list or part one or part two provided. From the Bar table, I am advised that the defendant's current position is that there is, in fact, only one discoverable document, being a diary. It is said that a number of other documents have been lost. This is surprising in that the only real factual issue raised by the defence is a claim of estoppel. In particular, the defence pleads that the plaintiff represented that it would not enforce its rights under a deed of settlement it sues upon and, in reliance upon that, various steps were taken by the defendant, which included the expenditure of monies. It seems difficult to accept that every document relevant to the making of the alleged representation and the acts of reliance which include expenditure of monies is missing.
Nevertheless, in view of the albeit inadequate steps taken, I do not think it is appropriate at this stage to order the striking out of the defence. In terms of future progress of the matter, it seems the best course is to require the defendant to move to put on its evidence said to support the claims made in its defence. In essence, the only issues in the case are the factual issues that I have identified, and a further contention that one part of the amount claimed by the plaintiff relies upon a clause of the deed which imposes a penalty. Any debate about the latter proposition should not be one that occupies much Court time.
The position of the plaintiff, as I understand it, is that upon being appraised of what evidence the defendant puts forward in support of its estoppel defence, it can then make an informed decision about the progress of the proceedings, which might include an application for summary judgment or having it listed for hearing at the earliest opportunity. Accordingly, I will make directions to facilitate that occurring.
I will not, however, dismiss the notice of motion but will instead adjourn it. I think it is worthwhile to keep the notice of motion seeking the striking out of the defence hanging over the defendant's head as a means of ensuring compliance. If its current level of desultory compliance with Court orders continues, then it is likely that the Court will say enough is enough and terminate the proceedings summarily in the plaintiff's favour.
Accordingly, the orders I will make are as follows:
(1)adjourn the plaintiff's notice of motion, filed 6 May 2013, to 11 June 2013 at 9.00am;
(2)order the second defendant to file and serve a list of documents and a supporting affidavit, such list to address all documents relevant to the matters pleaded by them in paragraph 2 of the defence filed 22 January 2013 on or before 4.00 pm on 28 May;
(3)order the second defendant to serve all affidavit and documentary evidence relied on by them in the proceedings on or before 4.00pm on 4 June 2013;
(4)stand over the proceedings for further directions to 11 June 2013 at 9.00 am;
(5)order the second defendant to pay all of the plaintiff's costs of the notice of motion filed 6 May 2013 to date forthwith.
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Amendments
16 Jul 2013 Under UCPR 36.17, substitute "second defendant" for "defendants". Paragraphs: 6(2), 6(3), 6(5)
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