David Gray and Co Pty Ltd v SP Hay Pty Ltd - [2020] WASC 116

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DAVID GRAY & CO PTY LTD -v- SP HAY PTY LTD [2020] WASC 116
CORAM:   MASTER SANDERSON
HEARD:   5 MARCH 2020
DELIVERED          :   14 APRIL 2020
FILE NO/S:   CIV 2581 of 2019
BETWEEN:   DAVID GRAY & CO PTY LTD
Plaintiff
AND
SP HAY PTY LTD
First Defendant
STUART BARRY PRICE
Second Defendant
(ORIGINAL ACTION)
SP HAY PTY LTD
Plaintiff by Counterclaim
AND
DAVID GRAY & CO PTY LTD
Defendant by Counterclaim
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Application to cross-examine witnesses in summary judgment application - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

First defendant's application for leave to cross-examine be dismissed with costs

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	P J Ward
First Defendant	:	C P K Russell
Second Defendant	:	C P K Russell

Solicitors:

Plaintiff	:	Nova Legal
First Defendant	:	DW Fox Tucker Lawyers
Second Defendant	:	DW Fox Tucker Lawyers

Counterclaim

Counsel:

Plaintiff by Counterclaim	:	C P K Russell
Defendant by Counterclaim	:	P J Ward

Solicitors:

Plaintiff by Counterclaim	:	DW Fox Tucker Lawyers
Defendant by Counterclaim	:	Nova Legal

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

Nil

MASTER SANDERSON:

On 7 February 2020 the plaintiff applied for summary judgment in relation to the defendant's counterclaim. Although it is somewhat confusing the plaintiff, as defendant by counterclaim was applying for judgment under O 16 of the Rules of the Supreme Court 1971 (WA) (RSC). The application was supported by three affidavits. On 11 February 2020, Acting Master Whitby made orders requiring the first defendant (as plaintiff by counterclaim) to file any affidavits in opposition to the application by 21 February 2020. The parties were to file outlines of submissions by 28 February 2020 and the matter was listed on 5 March 2020. On 26 February 2020 the first defendant lodged an affidavit of Stuart Barry Price in opposition to the application. In response to that affidavit the plaintiff filed a further affidavit on 4 March 2020. Each party lodged submissions on 4 March 2020. Clearly there was considerable slippage in the timetable.
Sensibly the parties agreed to adjourn the hearing of the application listed on 5 March 2020. Neither party had sufficient time to adequately prepare for the hearing. On 26 February 2020 the first defendant filed a chambers summons seeking leave to cross‑examine the three deponents who had filed affidavits on behalf of the plaintiff. That application was opposed by the plaintiff. Sensibly the parties decided that question should be argued in the time available on 5 March 2020.
A statement of claim was indorsed on the writ of summons which was issued 15 May 2019. (The writ was issued out of the District Court. The amount of the plaintiff's claim is $688,898.75 ‑ well within the jurisdiction of the District Court. The matter was transferred to this court because the first defendant maintained it, or a related entity, had a counterclaim against the plaintiff which exceeded the jurisdiction of the District Court). The claim is very simple. The plaintiff says by written agreement dated 3 February 2017 the plaintiff and the first defendant agreed the plaintiff would supply agricultural products to the first defendant on certain terms and conditions.[1] The plaintiff says payment of all outstanding moneys was guaranteed by the second defendant.[2] It is the plaintiff's position between 15 February 2017 and 15 February 2019 the first defendant ordered agricultural products pursuant to the agreement and that these goods were delivered.[3] The plaintiff says the first defendant failed to pay for the delivered goods and it is indebted to the plaintiff accordingly.[4] The claim against the second defendant relates to his guarantee to make payment of moneys owing from the first defendant to the plaintiff.[5]
[1] Writ of Summons – Statement of Claim filed 15 May 2019, pars 4 – 5.
[2] Writ of Summons – Statement of Claim filed 15 May 2019, par 6.
[3] Writ of Summons – Statement of Claim filed 15 May 2019, par 8.
[4] Writ of Summons – Statement of Claim filed 15 May 2019, par 10.
[5] Writ of Summons – Statement of Claim filed 15 May 2019, par 3.
An amended defence and counterclaim was filed by the defendants on 15 January 2020. The defence raises a number of points. First, it is said the agreement between the plaintiff and the first defendant was partly oral and partly written.[6] The oral part of the agreement is said to comprise a number of conversations between the second defendant and Mr Warren Stirrat on behalf of the plaintiff. There is also a reference to Mr Rob Pauley who is said to represent 'PAE'.[7] PAE is not actually identified in the amended defence although it was identified in the original defence. It refers to a company Price Agriexport Services Pty Ltd. As I understand the first defendant's position, it says an agreement was entered into between the plaintiff and PAE rather than the plaintiff and the first defendant.
[6] Amended Defence and Counterclaim filed 15 January 2020, par 4.1.1.
[7] Amended Defence and Counterclaim filed 15 January 2020, par 4.1.2.
It is the first defendant's claim that the agreement between the plaintiff and PAE was novated in early 2017. Paragraph 4.10 of the defence reads as follows:
On or about 3 February 2017 the Second Defendant caused Anthia Craig on behalf of the First Defendant and PAE to instruct the Plaintiff to issue all tax invoices to the First Defendant from January 2017.
The defence then goes on to detail what the terms and conditions of any agreement between the plaintiff and the first defendant were and to plead the guarantee was of no force and effect. It is worth noting that the question of the actual terms and conditions agreed between the parties and which governed their commercial relationship after January 2017 are matters which are dependent upon documents. For the purposes of a defendant's summary judgment application ‑ and probably at trial ‑ the nature of the contractual relationship will be in no way dependent upon the oral evidence of witnesses either for the plaintiff or the defendants.
By par 9.2.2 of the defence the first defendant claims the plaintiff did not deliver certain products which were ordered and for which a charge was made. Particulars of eight instances of non‑delivery are pleaded in par 9.2.3 through to par 9.2.10. This plea then feeds into the counterclaim. It is alleged that because the plaintiff failed to deliver certain chemicals the crops of the first defendant were effected and the first defendant suffered loss and damage. The quantum of the alleged loss and damage exceeds the amount of the plaintiff's claim.
In Civil Procedure: Western Australia at par 36.2.3 the learned author sets out the circumstances in which cross‑examination will be allowed in an interlocutory application. Both parties in their written submissions referred to the commentary and there was no dispute as to the applicable principles. Without repeating what is said it is to be noted that cross‑examination in interlocutory matters is to be ordered 'sparingly'. In applications for summary judgment an order for cross‑examination is rarely appropriate. This case illustrates that point.
In pars 11 to 13 of his written submissions, counsel for the first defendant set out the reasons why he said cross‑examination was warranted in this case. Those paragraphs read as follows:
11.In short, the:
11.1.Robinson Affidavit gives evidence based on a review of records from the shipping company that David Gray used for deliveries and invoicing records maintained by David Gray. The deponent asserts that certain chemicals had certain weights and that a certain amount of pallets were required for delivery in order to argue that deliveries were made in full;
11.2.Williams Affidavit gives evidence identifying his signature on certain shipping records, explaining the process for the acceptance of chemicals and farmstock at SP Hay's farm and that he is not aware of any shortfall in delivery in 2017; and
11.3.Pauley Affidavit gives evidence purportedly identifying Dale Williams' signature on certain shipping records, setting out the process he says he put in place for the acceptance of chemicals and farmstock at SP Hay's farm and that he is not aware of any delay in delivery of chemicals to SP Hay's farm in 2017 or any shortfall in delivery of chemicals in 2017.
12.The Price Affidavit sets out evidence on the following relevant matters:
12.1.large irregularities between the projected/budgeted amount of chemicals and chemicals David Gray has asserted were delivered: see paras 3.1 to 3.6;
12.2.concerns Mr Price has about the records maintained by Mr Pauley and Mr Pauley having deleted certain chemical application records from SP Hay's computer system: see paras 4.1 to 4.10;
12.3.contrary to the assertions in the Pauley Affidavit and the Williams Affidavit, there were in fact chemicals from David Gray that were delayed and indeed missing from orders delivered to SP Hay's farm: see paras 4.12 to 4.16, 8.1 to 8.7 and Attachments SP-1 and SP-7;
12.4.SP Hay ordered additional chemicals (fungicide) from Farmarama in mid-August 2017: see para 8.7 and Attachment SP-20; and
12.5.based on the industry experience and the particular practices adopted by SP Hay the concerns Mr Price has with the accuracy of the assertions in paras 13, 14, 15, 16, 17, 18, 19 and 20 of the Robinson Affidavit: see paras 11.1 to 11.9.
13. The matters referred to in paragraph 12 above raise serious concerns as to the accuracy of the matters deposed to in the Robinson Affidavit, the Williams Affidavit and the Pauley Affidavit.
Summary judgment applications require a plaintiff or a defendant to establish there is no serious question to be tried. Order 16 of the RSC requires a defendant to verify on oath the contents of the defence and that in the belief of the deponent there is no substance to the claim. Once that is done the evidentiary onus shifts to the plaintiff to establish there is a serious question to be tried. The legal onus remains at all times on the defendant ‑ but once the defendant has satisfied what is sometimes called the 'technical' requirements of O 16 the evidentiary burden shifts to the plaintiff.
In determining whether or not there is a serious question to be tried the version of facts most favourable to the plaintiff must be accepted by the court. The summary judgment applications are not a venue for determining the credibility of witnesses. Of course a version of events may be put forward by a plaintiff which is so inherently incredible it cannot be accepted. But leaving that prospect to one side, the evidence led by the plaintiff must be accepted for the purpose of the application.
Order 16 r 2(2) anticipates cross‑examination of the deponents. However, the scope for cross‑examination in this case is so limited as to be also almost non‑existent. All the plaintiff has to do is raise a serious question ‑ it does not need to establish the evidence it relies upon will be accepted at trial. In this case it is the plaintiff's position certain deliveries were not made. The defendant relies upon certain documents which it says show deliveries were made. The plaintiff is entitled to lead evidence to the contrary and whether or not summary judgment is granted will be dependent upon whether that evidence ‑ that is, the plaintiff's evidence ‑ raises a triable issue. No cross‑examination is going to affect that position.
For these reasons I am not satisfied it would be appropriate in this case to order cross‑examination. The first defendant's chamber summons will be dismissed with costs.
Parties to confer as to a precise form of orders and as to costs. In the circumstances an agreement cannot be reached, parties are to file competing minute of proposed orders by 28 April 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
14 APRIL 2020