Corlette Pty Ltd v The Shell Company of Australia Ltd

[1999] WASC 24

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CORLETTE PTY LTD -v- THE SHELL COMPANY OF AUSTRALIA LTD [1999] WASC 24

CORAM:   MASTER SANDERSON

HEARD:   6 MAY 1999

DELIVERED          :   14 MAY 1999

FILE NO/S:   CIV 1077 of 1999

BETWEEN:   CORLETTE PTY LTD (ACN 009 325 991)

Plaintiff

AND

THE SHELL COMPANY OF AUSTRALIA LTD (ACN 004 610 459)
Defendant

Catchwords:

Practice and procedure - Application for inspection of document referred to in pleading - Document lost - No order made - Strike out pleading when document not available - Principles - Particulars ordered

Legislation:

Rules of the Supreme Court, O 26 r 8 and O 20 r 19(1)(c)

Result:

Order for production refused - Order for strike out refused - Particulars ordered

Representation:

Counsel:

Plaintiff:     Mr P A Sartori

Defendant:     Mr M J Deleuil

Solicitors:

Plaintiff:     Solomon Bros

Defendant:     Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Christianos v Westpac Banking Corporation, unreported; SCt of WA; Library No 7974; 1 December 1989

Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd [1992] 1 Qd R 91

Quilter v Heatly [1883] 23 Ch D 42

Rafidain Bank v Agom Universal Sugar Trading Co Ltd [1987] 1 WLR 1606

Robinson v Adshead (No 1) (1994) 12 WAR 574

Case(s) also cited:

Betzner v Betzner [1943] 2 WWR 353

Butera v Director of Public Prosecutions (1987) 164 CLR 180

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Giasoumi v Hutton [1977] VR 294

Maks v Maks (1986) 6 NSWLR 34

Sugden v St Leonards (Lord) (1876) 1 PD 154

Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190

1. MASTER SANDERSON:  This application raises a short, but interesting, point in relation to discovery.  The facts are quite simple.  In par 3 of its amended statement of claim the plaintiff refers to a written agreement styled "Shell Force Agreement" which it defines as the "Instrument".  It then pleads certain terms and conditions of the Instrument.  Prior to filing its defence, the defendant called for a copy of the Instrument.  It is entitled to do so under the provisions of O 26 r 8.  Despite an exhaustive search, the plaintiff has been unable to locate either the original document or a copy thereof.  It is not clear where the original of the Instrument has gone but the extent of the search makes it unlikely that it will come to light in the future.  The defendant, by its summons, seeks to inspect the Instrument, or, alternatively, to strike out the whole of the plaintiff's statement of claim for failure to comply with the requirement that it (the plaintiff) give discovery of the Instrument.  The application for an order for inspection can be disposed of quite simply.  It is the uncontradicted evidence of the plaintiff that the document is not presently available for inspection and the grant of further time is not likely to result in the document being found so as to allow it to be made available to the defendant.  In the circumstances, there is no point in my making any order for inspection.  Master White (as he then was) took a similar approach in Christianos v Westpac Banking Corporation, unreported; SCt of WA; Library No 7974; 1 December 1989.  In that case the plaintiff had sought an order for production of a document mentioned in the defence.  The defendant produced evidence that the document could not be located.  The question arose as to whether the affidavit filed by the defendant deposing to the fact that the document could not be found was adequate.  The learned Master concluded:

   "The evidence placed before me is that the defendants do not have the document and do not know where it is (if, indeed, it ever existed).  It would be pointless, in that situation, for me to grant the application in the terms sought.  Counsel for the plaintiff, no doubt recognising this, suggested that an order be made, in effect, requiring the production of the document or the filing of a more adequate affidavit showing good cause against such order.  It was suggested that such affidavit should contain an affirmation as to the original existence of the document and an indication of where it might be located.

   I have come to the conclusion that the existing affidavit of the defendant is adequate to show good cause why the order should not be made.  In the circumstances, I shall refuse the order."

2. With respect, I entirely agree with this conclusion.  The present affidavit of the plaintiff is adequate to show that the document is not available.  It would be pointless to make an order for production.  I also see no value whatever in ordering that a further affidavit be filed speculating as to the whereabouts of the document.  To be fair to counsel for the defendant, he did not submit that a further affidavit should be filed.  But he did submit that the statement of claim should be struck out because the plaintiff could not provide a copy of the Instrument.  In support of his submission, counsel for the defendant relied upon the decision of Jessel MR in Quilter v Heatly [1883] 23 Ch D 42 where his Lordship said (at 48):

   "The defendant may say,

   'Your case depends partly on a set of documents which you may have set out incorrectly.  I wish to see them.  It may be that I have made admissions which will put me out of Court.  I wish to see the documents to know whether I have made such admissions, and it is important for me to see them before I put in my defence.'

   It is reason enough why the Defendant should be allowed to see them that the Plaintiff has made them part of his statement of claim."

3. This decision has been consistently followed both in England and in Australia.  In Rafidain Bank v Agom Universal Sugar Trading Co Ltd [1987] 1 WLR 1606 Nourse LJ put the position as follows (at 1610 ‑ 1611):

   "The party who refers to the documents (in the pleading) does so by choice, usually because they are either an essential part of his cause of action or defence or of significant probative value to him.  Neither of those functions presupposes that they will be in his possession, custody or power.  As Lindley LJ observed in Quilter v Heatly ... the material provisions were evidently intended to give the other party the same advantage as if the documents referred to had been fully set out in the pleadings.  Why should that advantage be automatically denied to him because the documents are not in the possession, custody or power of the party who refers to them? ... the court is not bound to make an order for production.  It has a discretion to do so or not as it sees fit.  The authorities establish that an order will not be made if good cause to the contrary is shown.  Doubtless the absence of possession, custody or power will sometimes amount to a good cause."

4. Quilter v Heatly, supra, was approved by the Full Court of the Supreme Court of Queensland in Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd [1992] 1 Qd R 1991. It was followed by Master Adams in this Court in Robinson v Adshead (No 1) (1994) 12 WAR 574.

5. All of these authorities deal with the question of whether or not inspection of the document referred to in the pleadings ought be ordered.  None of them address the question of whether, if the document cannot be produced for good and sufficient reason, the pleading ought be struck out.  Clearly, no strike out order could be made for failure to comply with O 26 r 8.  After all, compliance with that rule has been dispensed with.  It is really a question of whether a statement of claim which refers to a document which cannot be produced is to be struck out as embarrassing under O 20 r 19(1)(c).

6. There is no real answer to this problem.  A party who refers to a document in a pleading, by implication, includes that document as part of the pleading.  If a copy of the document cannot be provided it is tantamount to providing to an opponent only part of a pleading.  On the other hand, a party must plead material facts.  The existence of the written document and its terms are material facts.  Any attempt to plead the written agreement in such a way as to demonstrate that it existed but is now lost would be to plead evidence – the party would be pleading the evidence it has to establish the existence of the document and its terms.  To plead evidence runs counter to good pleading practice.

7. I think the way out of this dilemma is to adopt a practical approach.  At present, the plaintiff says that it will provide particulars of the Instrument after discovery.  It appears that the defendant does not have a copy of the Instrument either, so discovery will not assist the plaintiff.  But if the plaintiff were now to provide particulars it can at least indicate to the defendant what it believes is in the document.  The particulars may in fact disclose the evidence that will be relied upon by the plaintiff to establish the existence of the Instrument.  There is often a fine line between particulars and evidence and if, in this case, the plaintiff were to disclose some of its evidence in relation to the Instrument it will undoubtedly assist the defendant.  This compromise position is, I think, fair to both parties.

8. I would propose then to order that the plaintiff provide particulars of the agreement in par 3 of the statement of claim within 14 days.  I will hear the parties as to the precise form of the orders and as to costs.