Danby Investment Holdings Pty Ltd v Primestyle Pty Ltd - [2010] WADC 73

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DANBY INVESTMENT HOLDINGS PTY LTD -v- PRIMESTYLE PTY LTD [2010] WADC 73

CORAM: EATON DCJ

HEARD: 24 MARCH 2010

DELIVERED : 20 MAY 2010

FILE NO/S: CIV 296 of 2007

BETWEEN: DANBY INVESTMENT HOLDINGS PTY LTD
Plaintiff (Respondent)
AND
PRIMESTYLE PTY LTD
Defendant (Appellant)

Catchwords:

Practice and procedure - Appeal from a deputy registrar's refusal to order further and better discovery

Legislation:

District Court Rules 2005

Result:

Appeal allowed in part

Representation:

Counsel:

Plaintiff (Respondent) : Mr B L Nugawela
Defendant (Appellant) : Mr A J N Aristei

Solicitors:

Plaintiff (Respondent) : Marks & Sands
Defendant (Appellant) : Carlo Primerano & Associates

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

Grant v Downs (1976) 135 CLR 674
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122

EATON DCJ: On 20 December 2006 the plaintiff filed a writ of summons at the Bunbury registry of this Court. It was accompanied by a statement of claim seeking an amount of $54,681.89 from a person who was said to be the trustee of a trust called "Primestyle Trust". The amount claimed was for the rental by the plaintiff to the defendant of some winches and related equipment during the period 5 May 2006 to 18 August 2006. The entity served entered a conditional appearance. By consent the matter was transferred to the District Court of Western Australia at Perth in February 2007.
On 20 February 2007 the defendant filed a defence denying that he was the trustee of the trust referred to and asserting that the entity which had entered into an agreement, partly oral and partly in writing, in about early May 2006 for the supply of hydraulic rams and equipment for the purpose of transporting buildings was Primestyle Homes Pty Ltd.
The matter remained dormant until the filing of a chamber summons by the plaintiff for leave to apply and to remove the matter from the inactive list with certain subsidiary orders. On 7 April 2008, by consent, leave was granted and the matter was removed from the inactive list. On 14 May, again by consent, the plaintiff was given leave to amend its writ of summons by amending the name of the defendant to "Primestyle Pty Ltd as trustee of the Primestyle Trust".
The matter proceeded through various interlocutory skirmishes during the remainder of 2008 and 2009. It was ultimately listed for trial on 9 and 10 July 2009. On 9 July 2009 the matter came before her Honour Judge Yeats who vacated the trial dates, ordered the defendant to pay the plaintiff's costs of the vacated trial thrown away and adjourned a chamber summons filed by the defendant on 7 July 2009 seeking further discovery.
It seems that there was some prospect of an amendment to the chamber summons because, on 31 August 2009 orders were made by consent that, within a further 14 days, the defendant do list its chamber summons or amended chambers summons for hearing. On 14 September 2009 the defendant filed a chamber summons seeking further and better discovery. That application was listed as a special appointment before a registrar in chambers. It came before Deputy Registrar Harman on 30 November 2009 and continued, part heard, on 9 December 2009. On that day, at the conclusion of submissions by counsel, he gave an extempore decision dismissing the application.
On 18 December 2009 the defendant filed a notice of appeal from that decision. The appeal is now before me for judgment.
Rule 15 of the District Court Rules 2005 provides that an appeal lies from a registrar to a judge. Such an appeal is to be by way of a new hearing of the matter that was before the registrar.
The appeal notice informs that the defendant seeks orders that the appeal be allowed and that orders be made in terms of par 1(a), (b), (d) and (e) of the defendant's chamber summons for further and better particulars filed 14 September 2009. In the alternative the appellant seeks orders in those terms but within a more limited time‑frame.
Before the registrar the appellant relied upon the affidavits of Dominic Bateman sworn 2 July 2009, 7 July 2009 and 14 September 2009 and the affidavits of Belinda Woan Zhi Wong sworn 3 July 2009, 17 July 2009 and 29 September 2009. Before me the appellant relied, in addition to those affidavits just mentioned, on the further affidavit of Dominic Bateman sworn 22 March 2010.
Before the registrar the respondent relied upon the affidavits of Valentine John Baxter sworn 17 July 2009 and of Kevin James Griffiths sworn 2 December 2009. The respondent relied upon those affidavits before me. Both sides filed a written outline of submissions.
Disputes about discovery of documents are often about relevance. Relevance is dictated principally by the issues between the parties. Those issues should be defined by the pleadings.
This matter was listed for trial, as mentioned, on 9 and 10 July 2009. On 26 June 2009 the respondent filed papers for the judge which included an amended writ of summons filed 25 June 2009, a defence filed 20 February 2007 and an amended reply to defence filed 27 January 2009. The pleadings have not been further amended.
The statement of claim alleges that in or about May 2006 the parties entered into an oral agreement whereby the respondent would rent certain equipment to the appellant. The respondent pleaded that the material terms of the alleged agreement were that the appellant would pay the respondent "an agreed price, alternatively the plaintiff's usual price, further alternatively a fair and reasonable price;". It was alleged further that the appellant would pay within 7 days of the respondent's invoice and that, pursuant to the agreement, the respondent rented the equipment to the appellant during the period 5 May 2006 to 18 August 2006. The respondent pleaded the rendering of invoices specifying the date and number of each invoice amounting, in total, to $54,681.89, asserting that the appellant had failed to make payment of that amount in breach of the alleged oral agreement.
In substance, by its defence, the appellant asserts that the parties entered into an agreement which was partly oral and partly in writing in or about early May 2006 for the supply of the equipment referred to. By way of particulars the appellant asserts that an employee of the respondent provided the appellant with an undated quote on the respondent's letterhead by which the respondent quoted for the supply of the equipment for a rental rate of $330 per week for certain items and $80 per week for other items, inclusive, in each case, of GST. The quote, asserts the appellant, was given to its director, one Robert Tilli, by an unknown employee of the respondent. By the defence the appellant asserts that the quote was accepted on the same day by Robert Tilli on behalf of the appellant and that the equipment was rented in accordance with the terms so agreed. The appellant denies par 4 of the statement of claim dealing with the invoices alleged to have been given by the respondent to the appellant. The appellant denies being liable to make any payments to the plaintiff in the amount claimed or at all.
Curiously, by its amended reply to defence the respondent asserts that it entered into an agreement with the appellant which was partly written and partly oral in or about early May 2006 for the supply of the equipment referred to. By way of particulars, the respondent asserts that, so far as the agreement was written, it consisted of an undated quote provided by an employee of the respondent to the appellant in or about May 2006 providing for rental of certain items at the rate of $330 per day and others at the rate of $80 per day, in each case subject to GST, damage waiver and government rental duty. The respondent asserts that the quote referred to by the appellant was not an authentic document prepared by or on the respondent's behalf and did not embody or truly reflect the terms of the agreement between the parties. The respondent asserts that its quote, as pleaded in the reply, was accepted by the appellant on the day that it was provided.
It is clear, having regard to the defence and the amended reply, that each party now asserts that the respondent provided the appellant with a quotation for the equipment to be rented in or about early May 2006 and refers to a particular document as being the quotation pleaded. The document relied upon by the appellant differs from that relied upon by the respondent in that, inter alia, the rental rate stipulated in the former is said to be $330 per week for certain items and $80 per week for others, inclusive of GST and is said in the latter to be $330 per day for certain items and $80 per day for other items not inclusive of GST, a damage waiver and government rental duty.
Given that there is no assertion by either party of there being more than one document evidencing this transaction by way of a quotation from the respondent to the appellant it follows that one of the two pleaded, if not both, is not authentic. Certainly the respondent pleads that the quote relied upon by the appellant is not authentic. Although not pleaded, it is clear to me that the appellant asserts that the quote relied upon by the respondent, in its reply, is not authentic.
The authenticity of the two quotations has now become the central issue for trial. I earlier mentioned that it was curious that the respondent's statement of claim asserted an oral agreement and that its reply to defence asserted an agreement partly oral and partly in writing. If the respondent, in seeking to recover the debt alleged were intending to rely upon its quotation as evidence of the agreement reached between parties then surely it would have pleaded its existence and its terms. I turn to the affidavit material before me in the hope that some light might be thrown on that circumstance.
In an affidavit sworn 17 July 2009, the respondent's operations manager, Valentine John Baxter, deposed to having perused the records of the respondent and located a copy of a quotation provided by the respondent to the appellant in or about May 2006 for the rental of the equipment the subject of the alleged agreement. That document is annexed to this affidavit and marked "VJB‑1". Annexed and marked "VJB‑2" is a document said to be a true copy of the rental agreement between the appellant and the respondent, also located in his perusal of the respondent's records. Documents marked VJB‑3, 4, 5 and 7 are, it seems, the invoices pleaded in par 4 of the respondent's statement of claim, respectively.
Valentine Baxter deposes to having received a handwritten facsimile transmission from Robert Tilli, on behalf of the appellant, suggesting that, with respect to the first three invoices, there were some overcharges. He says that on or about 4 September 2006 he telephoned Robert Tilli who assured him that the outstanding amount, being $54,681.89 would be paid by Friday 8 September 2006.
Valentine Baxter deposes that on 10 October 2006 he received a facsimile transmission from Robert Tilli, on behalf of the appellant, which included a quotation. The facsimile transmission coversheet and the quotation referred to are annexed to his affidavit and marked "VJB‑9" and "VJB‑10". The latter is the quote relied upon by the appellant and pleaded by it to be the basis of the agreement, partly oral and partly in writing, arrived at as between parties in or about early May 2006. Valentine Baxter deposes to having endorsed upon that quotation the words "Nice try Rob. Refer to your invoices for correct amount. We will proceed with legal action as per notice issued to you. Regards". That copy of the quotation, so endorsed, was, he says, sent by facsimile transmission to Robert Tilli.
It is apparent that the respondent placed the debt in the hands of a debt collection agency called National Collection Services. In or about November 2006, unable to recover the debt, it arranged for a firm of solicitors, Kaiser Kroon, to be retained on behalf of the respondent for the purposes of legal action to recover the outstanding amount.

Expert evidence

Doubting the authenticity of the quotation relied upon by the appellant, the respondent's solicitors, in about October 2008, instructed John Horton & Associates described as "investigators, forensic and security consultants" to examine the document referred to in the affidavit of Valentine Baxter and marked "VJB‑10", being the document relied upon by the appellant and pleaded as being the basis of the agreement between the parties in its defence, to establish its authenticity or otherwise. The examination appears to have been carried out by John Horton who was provided with the disputed document and other documents from the respondent's records being a similarly addressed quotation, a copy of another quotation prepared at the request of the examiner and a copy of an unrelated quotation addressed to "Coates Hire" dated 31 March 2006 also prepared at his request. He concluded that the document marked "VJB‑10" in the affidavit of Valentine John Baxter sworn 17 July 2009 was not an authentic document but rather a document, the content of which, had been altered.
In early 2009 the solicitors for the appellant instructed John D Gregory & Associates, forensic document consultants, to examine and provide a report on the authenticity of that document. He was provided with specimen comparison documents being a copy of an undated quotation addressed to the appellant pertaining to similar items and costings, a copy of a quotation prepared at the request of Mr Horton, a copy of a quotation addressed to "Coates Hire" dated 31 March 2006 also prepared at the request of Mr Horton, a copy of a quotation addressed to "National Hire" dated 19 May 2006 signed by one Tim Currie in blue ballpoint ink and a copy of a quotation addressed to "National Hire" dated 20 October 2006 from Val Baxter.
The examination, apparently carried out by John Gregory, resulted in a report of 30 April 2009 in which the examiner concluded that the document in question (VJB‑10) had been created to simulate an authentic quotation from the respondent. In other words, the document relied upon was not authentic.
There being two expert opinions, one commissioned by the appellant and the other by the respondent, both arriving at the same conclusion, that being, that the quotation relied upon by the appellant and pleaded in its defence was not an authentic document, one might be forgiven for assuming that the defence to the respondent's claim was no longer tenable.

The adjournment of the trial

On 2 July and 7 July 2009 the appellant filed a chamber summons, the first seeking that the respondent discover its computer records relating to the production or saving of the quotation allegedly given by the respondent to the appellant and seeking that the appellant's expert be given access to the respondent's computers and computer records for the purposes of investigating whether the alleged quotation was created or saved on a computer at those premises and was capable of being retrieved and the second seeking further discovery of three classes of documents, the first being all quotes provided by the respondent to its actual or potential customers for the hire of equipment between 1 May 2006 and 30 June 2006 in whatever form, the second seeking all emails and other communications between the respondent and National Collection Services between 1 October 2006 and 25 May 2007 and the third seeking all emails and other communications or memoranda relating to the location, discovery or identification of the respondent's quote between 10 October 2006 and 14 March 2007.
The first of two chamber summons came before her Honour Judge Wager on 6 July 2009. She made certain orders obliging the respondent to provide discovery of its computer records relating to the production or saving of the quotation relied upon by it and obliging the respondent to give the appellant's expert access to its hard drives, computer records and computers for the purpose of providing an urgent report. She foreshadowed, in other directions, the eventual adjournment of the trial and an award of costs.
The action came before her Honour Judge Yeats on 9 July 2009, listed as the first day of the trial. She vacated the trial dates. She ordered that the appellant pay the respondent's costs of the vacated trial thrown away limited to a maximum of $4,000 plus GST if applicable. The second of the two chamber summons was adjourned.
It is clear from the affidavit material filed at about the time of the trial being vacated that the appellant was contesting the authenticity of the quotation pleaded by the respondent in its reply to defence but not mentioned in its statement of claim. It is also clear that the appellant has seized upon that circumstance to question the authenticity of the respondent's quotation. Before me, counsel for the appellant, Mr Aristei, indicated that he wanted to be "quite clear as to the circumstances whereby their quote belatedly arose, to explain away the difficulties we have in understanding how it is that their quote came about after ours, and was not raised at some much earlier point."
Valentine John Baxter, in his affidavit sworn 17 July 2009, makes reference not only to the respondent's quote (VJB‑1) but also to a copy of the relevant rental agreement (VJB‑2). It appears to refer to the same transaction as the quote (VJB‑1), itemising the same equipment precisely and stipulating a hire rate of $410 per day. The items, according to the agreement, left the respondent under hire by the appellant on the morning of 5 May 2006 and were returned on 18 August 2006. The customer is described as "Primestyle" and the orderer's name is "Rob Tilli". The document bears no customer signature at the place provided for one. The invoices marked VJB‑3, VJB‑4, VJB‑5 and VJB‑7 would appear to relate to the same transaction, referring to precisely the same equipment hired, directed in each case to Primestyle with the customer described as "Rob Tilli".
The respondent would appear to have, from within its records, a documentary trail in the form of the quotation, hire agreement and subsequent invoices relating to the same transaction. One would have thought that a challenge to the authenticity of the quotation might involve also a challenge to the authenticity of the subsequent documents.
The appellant seeks discovery of other quotes given by the respondent on either side of the dates said to be the critical dates, 4 and 5 May 2006. Mr Aristei said:
"What we need, your Honour, in relation to pursuing trains of enquiry, are a sufficient range of quotes from the supplier that would enable matters such as the conclusions and the grounds raised in the experts' reports to be properly tested, to ensure that there is, in fact, a reliable conclusion reached by the experts as to the authenticity of the quote. We strongly believe that the quotes that have been given so far to the experts are too limited to allow that purpose, and there has been correspondence raised between the parties in an attempt to gain further access to quotes that would have been given around that period."
In par 1(a) of the chamber summons of 14 September 2009 the appellant seeks "all quotes given or provided by the servants or agents of the plaintiff to its actual or potential customers for the hire of equipment between the dates 1 May 2006 and 30 June 2006 whether email, facsimile, transmission, hard copy or copies stored on the plaintiff's computer records;".
The appellant filed an affidavit by one Dominic Bateman sworn 22 March 2010 which annexed a letter from the respondent's solicitors, Marks & Sands, to the appellant's solicitors of 3 September 2009. In that letter, the respondent's solicitors advised of a file of quotes covering the period 1 May 2006 to 30 June 2006, being faxed quotes and quotes handed to clients. The respondent's solicitors advised that the respondent is agreeable to providing the appellant with a copy of that file. They advise, by way of caveat, that "it is possible, but not likely, that certain quotes may have been removed from the file and placed on physical jobs files pertaining to particular rental contracts. Our client informs us that it would take 10 full work days for one employee to ascertain whether there are any such quotes. Unless you are prepared to indemnify our client's cost for this specific purpose at an hourly rate of $48, we suggest that a court order would be necessary".

Before me, counsel for the respondent, spoke of the file having been handed to his opponent shortly prior to the hearing. In fact, said counsel, the file starts before May 2006 and ends after June 2006. Some quotes for the sale of equipment, or for the provision of services and the like, not relevant to the transaction the subject of this action, have been removed. The file, says the respondent, or rather its contents, should be sufficient for the appellant's purposes. Any further requirement would be, in terms of the time and work involved so far as the respondent's staff are concerned, having regard to the amount in issue, oppressive and unreasonable.
I am inclined to the view that, in all the circumstances, the respondent's contention is correct. The alleged issue giving rise to this particular claim is the authenticity of the respondent's quote. The appellant seems to be challenging the conclusions of the two experts based on the proposition that, with the provision of further sample documentation, both might change their opinions. With respect, that does seem to be a somewhat hopeful, if not implausible, stance.
By par 1(b) of its application of 14 September 2009 the appellant seeks "all emails or other communications (email, facsimile transmission, hard‑copy or copies stored on the plaintiff's computer records) made between National Collection Services (the plaintiff's collections agents) and any servants or agents of the plaintiff between 1 October 2006 to 25 May 2007". According to the appellants written submissions, National Collection Services was carrying out a debt collection on behalf of the respondent. Accordingly, says the appellant, the correspondence sent by and to them in relation to the alleged debt said to be owed by the appellant during the period to November 2006 when National Collection Services retained solicitors for the respondent was not correspondence, the dominant purpose of which was to obtain legal advice or to conduct litigation. It does seem to me that that must be so. The primary purpose of instructing a debt collection agency must be to collect a debt. Legal action, being a means of collecting a debt, is usually resorted to once all other means are exhausted. Debt collection agencies offer expertise and experience in that regard. I take the view that correspondence as between National Collection Services and the respondent prior to Kaiser Kroon being retained is not subject to legal profession privilege. The respondent contends that National Collection Services was an intermediary engaged with a view to commencing legal proceedings against the defendant. In my view it was an agency engaged to do what it did in the course of its business, namely, collect a debt. That being the principle object, the institution of recovery proceedings by way of court action was, in fact, something to be avoided if possible. The principle is as stated by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677:
"… a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection".
In my view, correspondence between the respondent and National Collection Services up to the engagement of Kaiser Kroon was not brought into existence in order to obtain legal advice or conduct or aid in the conduct of litigation then being in reasonable prospect. As Valentine John Baxter said in his affidavit, in or about November 2006, National Collection Services arranged for Kaiser Kroon, lawyers to be retained as solicitors for the plaintiff. My assessment of the situation is that, by then, litigation was in contemplation. I refer to Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 and, in particular, the judgment of Finn J who said at 36:
"Where the issue, as here, is whether a document attracts legal advice privilege at the time it is brought into existence (as distinct from whether a copy of it is privileged when communicated at a later date (cf Propend Finance), the obvious starting point is with what was the intended use (or uses) of that document which accounted for it being brought into existence."
I am prepared to order that the respondent discover all emails and other communications made between National Collection Services and the respondent's servants or agents between 1 October 2006 and the engagement of Kaiser Kroon.
Paragraph 1(d) of the appellant's chamber summons of 14 September 2009 seeks that the respondent discover all emails and other communications or memoranda that relate to the location and discovery or identification of the plaintiff's quote between 10 October 2006 and 14 March 2007. In its written submissions the appellant comments that it was not until 14 March 2007 that the respondent located its copy of the quote which was allegedly given to Mr Tilli for the appellant. The appellant's suspicions are aroused by the circumstances, being the belated production of the respondent's quote already mentioned at length.
Kevin James Griffiths, the respondent's manager of business development swore an affidavit in relation to these matters on 2 December 2009.
In that affidavit he said:
"Other than the relevant USB drives, DAT tapes, Jack's winches' hard drive and Jungle disc, to which Jack's winches' backs up its records, the latter two sources having been made available to the defendant's expert, Mr Des Coles, on 7 July 2009, there are no other drives, back up and storage devices or storage services that could contain computer records relating to the production or saving of the quote upon which the plaintiff relies."
He says further at par 5 that, other than an email from Valentine Baxter on behalf of the respondent to a Mr Conradie of National Collection Services Pty Ltd dated 14 March 2007, there is no other correspondence between 10 October 2006 and 14 March 2007 that relates to the discovery, location or identification of the quote relied upon by the plaintiff.
In my view, the foregoing is a complete answer to par 1(d) of the appellant's claim for further and better discovery. In the circumstances, to exceed to the application and make an order in the terms sought would be quite superfluous.
Paragraph 1(e) of the appellant's chamber summons of 14 September 2009 seeks:
"Originals and/or copies of any employees records including time and wages records (whether full time, part time, casual, probationary, independent contractors or servants or agents) of the plaintiff – limited to those documents which are likely to evidence the persons working at the plaintiff's premises at 47 Dowd Street, Welshpool on 4 and 5 May 2006."
I have some difficulty in understanding why it is that discovery in those terms is requested. The issue between the parties is not as to whether there was an agreement between the appellant and the respondent in early May 2006 but rather, its terms. Both parties now assert that it was an agreement, partly oral and partly in writing. To the extent that the agreement was evidenced in writing or reduced to writing in whole or in part, there is a dispute as to the authenticity of the respective quotes relied upon. To the extent that the agreement was, as alleged by both sides, partly oral, the identity of significant players is, it seems, already known. For example, it is clear that a quote was handed to Robert Tilli on behalf of Primestyle. It is clear also that there was subsequently communication, both written and oral, as between Valentine Baxter and Robert Tilli. The request for employee records with a view to identifying the respondent's staff at the relevant time attempts to utilise the process of discovery in an oppressive or punitive way. So far as I am aware, neither party has sought particulars of the other's pleadings. To the extent that both assert now the presence of an agreement, partly oral and partly in writing, it would have been appropriate for each to enquire of the other, by way of a request for particulars, as to the identity of the individuals involved, to the extent that they are now known, at the time when the quote was requested and given. Beyond that, the details of the respondent's personnel generally are irrelevant. I am not prepared to make an order in terms of par 1(e).
Returning to par 1(a) of the application of 14 September 2009, at the conclusion of the hearing on 24 March 2010, before reserving judgment, I ordered that the respondent, within 10 days, file and serve an affidavit clarifying and verifying the compilation of documents handed to the appellant in a lever arch file on 24 March 2010. I further order that within 10 days of service of the affidavit referred to, the appellant advise the court and the respondent's solicitors of its attitude to the application for further and better discovery insofar as par 1(a) is concerned.
Pursuant to the orders made on 24 March 2010 the respondent filed a further affidavit of Valentine John Baxter sworn 1 April 2010. He deposes again to being an employee of and the operations manager of the respondent. He refers to the letter from the respondent's solicitors, Marks & Sands to the appellant's solicitors of 3 September 2009 referred to earlier in this judgment. He refers also to the file of quotes said to cover the period 1 May 2006 to 30 June 2006 being faxed quotes and quotes handed to clients. He says that, in par 4, in addition to quotes within the time period just mentioned, the file contains quotes that range from January 2006 to December 2006 and other documents that are not quotes but rather documents providing information as to products available for purchase, correspondence, purchase orders and tax invoices. The file had been stored in the respondent's archive storage area. He arranged for it to be located and transported by courier to the respondent's solicitors. He deposes that, to the best of his knowledge, information and belief, the file was sent from those premises to the respondent's solicitors in its entirety. He did not remove any documents from it. He deposes further to having been advised by the respondent's solicitors and to his belief that the respondent's solicitors have identified six quotes which fall within the time period. He annexes those quotes as "VJB‑2 to VJB‑7". Those quotes, he believes and is informed, were extracted from the file and placed into a separate lever arch file. They have, so far as he is informed, been provided to the appellant's counsel.
Pursuant to the orders made on 24 March 2010 counsel for the appellant has written to the court, albeit several days beyond the time stipulated, advising that, following a receipt of the affidavit mentioned in the preceding paragraph, the parties, or rather their solicitors, had communicated. Counsel for the appellant advises that the appellant is of the view that the affidavit mentioned does not fulfil the requirements of par 1(a) of the appellant's chamber summons for further and better discovery filed 14 September 2009. That request, as mentioned earlier was for "all quotes given or provided by the servants or agents of the plaintiff to its actual or potential customers for the hire of equipment between the dates 1 May 2006 and to 30 June 2006 whether email, facsimile, transmission, hard copy or copies stored on the plaintiff's computer records".
The letter of 3 September 2009, as mentioned earlier, advises that the quotes within the file covering the period 1 May 2006 to 30 June 2006 included faxed quotes and quotes handed to clients. The documents within the file were, in accordance with the affidavit of Valentine John Baxter sworn 1 April 2010, located and retrieved from an archive area in accordance with arrangements made by him. He deposes to the file being forwarded to the respondent's solicitors in its entirety and that he personally did not remove any document from it.
The documents annexed to his affidavit being VJB‑2 to VJB‑7 comprise quotes rendered on 27 April 2006, 4 May 2006, 8 May 2006, 9 May 2006, 16 May 2006 and 31 May 2006.
In terms of relevance, the documents being sought are not said to be relevant to the issues for trial other than the extent to which they might be of assistance to the experts engaged by the parties in a review of the work carried out by them or to any other expert in a similar field engaged for the purpose of reviewing the work carried out by the experts engaged by the parties. Counsel for the appellant, before me, expressed the appellant's strong belief that the quotes "given so far to the experts are too limited". There is no evidence from either expert as to what might be further required in the way of comparable material. There is, in that regard, only the assertion of the appellant that all documents which fall within the wide scope of par 1(a) are "relevant". What is relevant, having regard to the purpose for which the documents are sought, is, in this case, of limited compass.
In my view, the additional material provided by the respondent and referred to in the affidavit of Valentine John Baxter sworn 1 April 2010 is compliance by the respondent with its obligations so far as discovery is concerned. I do not propose, therefore, in the circumstances to make an order in terms of par 1(a) of the chamber summons of 14 September 2009. I am prepared, so far as par 1(b) of that application is concerned to order that the respondent discover all emails and other communication made between National Collection Services and its servants or agents between 1 October 2006 and the engagement of Kaiser Kroon. I am not prepared to make an order in terms of par 1(d) of the application. Nor am I prepared to make an order in terms of par 1(e). An order in terms of par 1(c) is no longer pursued.
This is an appeal from the decision of Deputy Registrar Harman made on 9 December 2009. He dismissed the appellant's application. The appeal has been allowed in limited terms only. I will hear counsel as to the appropriate form of final orders and costs.