Concrete Logistics Pty Ltd v KBC Pty Ltd [No 2]
[2016] WASC 161
•30 MAY 2016
CONCRETE LOGISTICS PTY LTD -v- KBC PTY LTD [No 2] [2016] WASC 161
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 161 | |
| Case No: | CIV:1512/2015 | ON THE PAPERS | |
| Coram: | MARTINO J | 30/05/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Further discovery ordered | ||
| B | |||
| PDF Version |
| Parties: | CONCRETE LOGISTICS PTY LTD (ACN 103 913 551) KBC PTY LTD (ACN 008 886 806) |
Catchwords: | Civil procedure Application for further discovery Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA) |
Case References: | Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 Concrete Logistics Pty Ltd v KBC Pty Ltd [2015] WASC 284 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
KBC PTY LTD (ACN 008 886 806)
Defendant
Catchwords:
Civil procedure - Application for further discovery - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Further discovery ordered
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Jackson McDonald
Defendant : Mendelawitz Morton
Cases referred to in judgment:
Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Concrete Logistics Pty Ltd v KBC Pty Ltd [2015] WASC 284
1 MARTINO J: The plaintiff applies for further and better discovery and inspection of documents.
2 I summarised the nature of this action in my reasons on the defendant's application for security for costs.1 Since that decision the plaintiff has filed a further amended statement of claim and the defendant has filed an amended defence and counterclaim. The parties continue to be in dispute as to the terms upon which the plaintiff occupied the defendant's land in Karratha. It remains common ground that no lease was ever executed by the parties.
3 The legal practice Murfett Legal Pty Ltd acted as the solicitor for the defendant in relation to the preparation of a lease of the defendant's land in Karratha to the plaintiff which lease was not signed. The defendant seeks discovery and inspection of the file and documents on the file held by Murfett Legal in relation to that matter.
4 The plaintiff pleads in paragraph 3 of the further amended statement of claim:
3 The Plaintiff occupied the Land prior to 1 May 2014 by agreement with the Defendant (Agreement) on terms evidenced by a written but unsigned 40 page document entitled "lease 1015 Coolawanyah Road, Karratha".
5 The defendant denies paragraph 3 of the statement of claim. It pleads in paragraph 3 of the amended defence and counterclaim that the plaintiff occupied the land from approximately January 2010 until approximately April 2014, that in or about the beginning of 2010, without the authority or approval of the defendant the plaintiff began expanding its operation conducted upon the land and began affixing property to the land and:
(e) Rex John O'Leary, a director of the defendant then discussed with Peter Dominic Cox, a director of the plaintiff, the high level of desirability that the plaintiff and defendant enter into a formal agreement regarding the Land;
(f) Rex John O'Leary, for and on behalf of the defendant, instructed a firm of solicitors trading under the name and style of "Murfett Legal" to prepare a written lease instrument for such purpose;
(g) in or about March 2010, the defendant delivered to the plaintiff a copy of the written instrument referred to in paragraph 3 of the [further amended statement of claim] for the plaintiff's consideration;
(h) Peter Dominic Cox, for and on behalf of the plaintiff said to Rex John O'Leary for and on behalf of the defendant, words to the effect that the plaintiff could not afford to provide any bond or security;
(i) a person unknown, for and on behalf of the plaintiff, made handwritten alterations to the subject instrument, including striking through the proposed condition 19.2, such condition being entitled "Bank Guarantee";
(j) the plaintiff and the defendant never agreed upon the proposed terms of the subject instrument, it was never signed by either party and the defendant specifically refused to accept any proposed amendments;
(k) at all times, from the first moment of the plaintiff's possession of the Land, parts of the subject Land were excluded from the plaintiff's exclusive possession and reserved to the use and enjoyment of the defendant;
(l) by implication of law, a relationship of monthly tenancy existed between the plaintiff and the defendant in respect of the Land ("Tenancy").
6 There is therefore a dispute between the parties as to whether they agreed that the terms upon which the plaintiff occupied the land are contained in the unsigned lease prepared by Murfett Legal.
7 Order 26 r 1 of the Rules of the Supreme Court 1971 (WA) provides for discovery of 'documents which are or have been in [a party's] possession, custody or power relating to any matter in question' in the cause or matter.
8 A document relates to a matter in question in the action not only when it would be evidence upon any issue, but also which, it is reasonable to suppose contains information which may, not must, directly or indirectly enable the other party to the action to advance that party's case or to damage the other party's case.2 In my view, having regard to the issue on the pleadings to which I have referred, the contents of the Murfett Legal file are documents which relate to a matter in question in this action. That is because they may enable the parties to advance their cases as to whether or not they agreed to a lease on the terms contained in the unsigned document.
9 The defendant opposes the application. The defendant does not argue that legal professional privilege applies to the file and its contents. The defendant identifies the issue in dispute between the parties on discovery and inspection following conferral as the issue stated in paragraph 3 of the defendant's outline of submissions on the plaintiff's application:
3 The issue has distilled down to the proper meaning of the word 'power' in the expression 'possession, custody or power' used throughout RSC O.26, and the consequent application of that meaning to the facts of the case.
10 In Absolute Analogue Inc v Sundance Resources Ltd, Le Miere J said:3
In order for a document to be in the power of a party that party must either in fact be in possession of it or have an immediate indefeasible legal right at the time of discovery to demand possession of it from the person in whose possession it is: Lonrho Ltd v Shell Petroleum Co Ltd (No 1) [1980] 1 WLR 627; Midalco Pty Ltd v Simpson Unreported, WASCA, Library No 6747, 5 June 1987).
11 The documents are not in the physical possession of the defendant. Murfett Legal holds the file. The firm is willing to provide the file and documents on it to the defendant. However, the defendant says that it does not have an immediate indefeasible legal right to demand possession of it or the documents on it.
12 Whether the defendant has an immediate indefeasible legal right to demand possession of it or the documents on it is to be considered in light of the provisions of the Legal Profession Conduct Rules 2010 (WA). Those rules are made under the Legal Profession Act 2008 (WA) and are binding on the legal practitioners to whom they apply.4
13 Rule 28(2) of the Legal Profession Conduct Rules provides:
(2) A practitioner with designated responsibility for a client's matter must, as soon as is reasonably practicable, ensure that any client documents or copies of electronic client documents are given to the client or former client or another person authorised by the client or former client if -
(a) the practitioner's or the practitioner's law practice's engagement is completed or terminated; and
(b) the client requests the documents; and
(c) there is not a lien over the documents.
client documents means documents to which a client is entitled as a matter of law including but not limited to the following -
(a) documents received from the client by a practitioner or the practitioner's law practice;
(b) documents prepared by a practitioner or the practitioner's law practice for the client or predominantly for the purposes of the client or the client's matter;
(c) documents received by a practitioner or the practitioner's law practice from a third party for or on behalf of the client or intended for the use or information of the client or for the purposes of the client's matter;
15 These provisions mean that if the defendant requests of the practitioner at Murfett Legal client documents as defined in the rules then the practitioner must provide them to the defendant unless Murfett Legal has a lien over the documents. Murfett Legal is willing to provide the file and documents on it to the defendant. I conclude therefore that it does not claim a lien over the documents.
16 The obligation contained in r 28(2) of the Legal Profession Conduct Rules is a legal obligation on the practitioner. It is clearly for the benefit of the client. In my view, it provides the client with an immediate indefeasible legal right to demand possession of client documents as defined in the Rules unless a lien exists.
17 The solicitors for the defendant have not inspected the file held by Murfett Legal. They say that they and their client do not know whether the file contains documents other than documents to which the defendant is entitled as a matter of law.
18 It is clear that the file contains documents that come within paragraphs (a) and (b) of the definition of client documents in r 3 of the Legal Profession Conduct Rules. The fact that it is possible that the file might also contain some documents to which the defendant is not entitled is pure speculation. No-one says that it does contain documents to which the defendant is not entitled. The practice is willing to provide the file and its contents.
19 I should not decide this application on the basis of speculation. As the file contains documents to which the defendant is entitled the documents on the file should be discovered. The plaintiff succeeds in its application. The parties should confer as to the terms of the order to be made having regard to these reasons.
1Concrete Logistics Pty Ltd v KBC Pty Ltd [2015] WASC 284.
2Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63.
3Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 [21] (Le Miere J).
4Legal Profession Act 2008 (WA) s 581.
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