De Poi v De Poi (No 2) - [2010] SASC 333

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DE POI & ORS v DE POI & ORS (NO 2)
[2010] SASC 333
Judgment of The Honourable Justice White
1 December 2010
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - ORDERS FOR FURTHER AND BETTER DISCOVERY
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - SOLICITOR AND CLIENT
Plaintiffs brought an application seeking the striking out of the defendants' list of documents and further and better disclosure - the application was made well after the expiry of the time fixed by the Court for such applications - plaintiffs sought an extension of time, and contended that making the application at an earlier time would have been premature - whether the grant of the application is consistent with caseflow management principles and is appropriate in the interests of justice.
Held: application allowed in part - disclosure of documents to which the plaintiffs were alerted by the recent filing of the defendants' second supplementary list of documents and by recent correspondence from the defendants' solicitors allowed - application dismissed in relation to those aspects which should have been brought within the time fixed by the Court's previous order.
Evidence Act 1929 (SA) ; Supreme Court Civil Rules 2006 (SA) r 3, r 113, r 115, r 120, r 136, r 161; Trustee Act 1936 (SA) Pt 5A s 84B; Trustee Regulations 1996 (SA) reg 6, referred to.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Blatch v Archer [1774] 1 Cowp 63 at 65; (1774) 98 ER 969 at 970; Ferguson v Mackaness Produce Pty Ltd [1970] 2 NSWR 66; Southern Equities Corporation Ltd (In Liq) v Arthur Andersen & Co (No 5) [2001] SASC 335; Harris Scarfe Ltd (Receivers and Managers Appointed) (in liq) v Ernst and Young (No 4) [2005] SASC 443, considered.

DE POI & ORS v DE POI & ORS (NO 2)
[2010] SASC 333
Civil

WHITE J. This is an application by the plaintiffs for an order striking out the list of documents filed by the defendants on 9 June 2009, an order requiring the defendants to file a new list of documents verified by way of affidavit, and an order requiring the defendants to make further and better disclosure of documents. In substance, the plaintiffs seek orders requiring the defendants to engage in a wholesale review of their disclosure made to date; to provide further disclosure; and to verify all their disclosure on oath.
I summarised the nature of the dispute between the parties in the judgment delivered in this action on 5 November 2010[1] concerning the plaintiffs’ application for an order requiring the Commonwealth Bank of Australia to disclose certain documents. It is convenient to repeat some of that summary.
[1] De Poi & Ors v De Poi & Ors [2010] SASC 310.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] SASC 333
Decision Date: 1 December 2010

CaseChat Overview and Summary

In the matter of De Poi v De Poi (No 2), the plaintiffs sought to strike out the defendants' list of documents and to obtain further and better disclosure of documents. The application was made after the time limit set by the Court for such applications had expired. The plaintiffs argued that the application was timely because making it earlier would have been premature. The court was required to determine whether the late application was consistent with caseflow management principles and appropriate in the interests of justice.

The court considered the general duties of litigants and their lawyers, as well as the principles of caseflow management. The court held that although the application was made late, the plaintiffs had established some grounds for doubting that the defendants had fully discharged their obligations with respect to disclosure. The court granted the application in part, allowing the disclosure of documents to which the plaintiffs were alerted by the defendants' recent filings and correspondence. The court dismissed the application in relation to those aspects which should have been brought within the time fixed by the Court's previous order.

The court made orders requiring the defendants to verify their disclosure by affidavit and to provide further disclosure of certain categories of documents. The court also granted the plaintiffs' application for an extension of time to apply for further and better disclosure of certain categories of documents. The court dismissed the plaintiffs' application for an extension of time in all other respects. The court ordered that the defendants file and serve an affidavit verifying their disclosure by a specified date. The court heard the parties on costs and any consequential matters.

The court concluded that the principles of caseflow management and the general duties of litigants required compliance with the Rules and orders of the Court with respect to the completion of interlocutory steps. The court held that late interlocutory applications may be refused, or the Court may order that an action proceed to trial even when a party is not ready for trial by reason of its own default. The court held that considerations of the cost and delay to other litigants are relevant in the application of caseflow management principles. The court held that a just resolution of the parties' dispute is to be understood in the light of the purpose and objectives stated in the relevant rules. The court held that orders for costs may not overcome all the prejudice occasioned by the opposing party.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

Although I will dismiss the greater part of the plaintiffs’ application for further and better disclosure for discretionary reasons, I accept that the plaintiffs have established some grounds for doubting that at least, in some respects, the defendants have fully discharged their obligations with respect to disclosure. One way to require the defendants to give further attention to the matter is require the lists to be verified by affidavit. That should not be an onerous task given the detailed attention which the defendants have, or should have, given to disclosure to date. Although the plaintiffs’ application is made very late, I think it unlikely that a requirement that the existing lists be verified by affidavit will dislocate the arrangements for the trial. Accordingly I will make orders to that effect.Conclusions For the reasons given above I make the following orders:1.The plaintiffs’ oral application for an extension of time in which to apply for further and better disclosure of the documents in Categories 4 and 6 of the Interlocutory Application filed on 18 November 2010 and for verification of the defendants’ disclosure on oath is granted.2.In all other respects the plaintiffs’ oral application for an extension of time is refused.3.The defendants are, by no later than close of business on 16 December 2010, to make further and better disclosure of the following categories of documents:(a) documents relating to the opening of bank accounts for G De Poi Nominees Pty Ltd and G & G De Poi Partnership (bank accounts);(b) documents evidencing the authorised signatories for the bank accounts;(c) account statements generated in relation to the bank accounts from their opening to the present time;(d) all correspondence files maintained by Goldberg and Co and/or Cowell Clarke in relation to file No 980735;(e) notes or records maintained by Mr John Goldberg and/or the firm of Goldberg and Co in relation to file No 981141 which are not kept within the three numbered correspondence files produced to the plaintiffs to date, including:(i)notes relating to initial instructions obtained at the time of opening file No 981141; and(ii)notes or records relating to any further communications between Mr Goldberg and Mr Garry Hugo of Tregloans between 7 and 12 July 1999;(f) copies of correspondence, records or files maintained by Carpenter & Associates in relation to the Estate of Giovanni De Poi which are within the defendants’ power and control;(g) copies of correspondence, records or files maintained by Donaldson Walsh in relation to the Estate of Giovanni De Poi which are within the defendants’ power and control; and(h) copies of correspondence, records or files held by Mr Robert Chiro in relation to the Estate of Giovanni De Poi which are within the defendants’ power and control.4.Each of the defendants is by no later than close of business on 16 December 2010 to file and serve an affidavit verifying the disclosure made previously and the further disclosure made by this order.5.In all other respects, the plaintiffs’ interlocutory application filed on 24 November 2010 is refused.I will hear the parties as to costs and any consequential matters.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Counsel referred to the fact that the matter has not yet been set down for hearing, so that Rule 131(5) did not require the plaintiffs to seek the Court’s permission to bring the application. That is so. However, the position that this Court will not set a matter down for trial until all interlocutory steps have been completed does not have as a corollary that interlocutory applications may be made at any time until a matter has been set down. On the contrary, litigants are expected to comply with the Rules and orders of the Court with respect to the completion of interlocutory steps. If they do not, late interlocutory applications may be refused. Alternatively, the Court may, on its own initiative, order that an action proceed to trial even when a party, by reason of its own default, is not ready for trial.[8]Consideration of the Merits of the Application[8] Supreme Court Civil Rules 2006 (SA) r 120(6).The General Duties of Litigants It is appropriate to commence with a reference to the general duties of litigants and their lawyers in relation to the conduct of litigation in this Court. A statement of some of the principal duties is contained in r 113 of the Supreme Court Civil Rules 2006:(1)The parties to a proceeding, and their lawyers, have a duty to the Court to assist in the orderly progress of the proceeding from its commencement until it has been finally dealt with by the Court.Note—The powers to enforce compliance, or to penalise non-compliance, with this rule, and indeed the rules generally, conferred by rules 12 and 13 should be noted.(2) In particular, the parties have a duty to the Court to ensure that—(a) they comply with the Court's directions as to the conduct of the proceeding; and(b) they are ready to proceed with each interlocutory hearing at the time appointed under these rules; and(c) all interlocutory proceedings are completed by the time the case is referred for trial and, in particular, the pleadings properly reflect the case that is to be presented at trial; and(d) the trial can proceed, as far as practicable without interruption, from the time appointed for its commencement.These obligations apply to all civil litigation conducted in this Court but apply with particular acuteness in relation to matters which are assigned a special classification under r 115. It was only because this action is being Judge managed under r 115 that the plaintiffs were able to obtain an allocated trial date before certifying that all interlocutory matters had been completed.The Principles of Case Flow Management The application of the principles of caseflow management in the context of a late application to amend pleadings was recently considered by the High Court in Aon Risk Services Australia Ltd v Australian National University.[9] The decision of Aon was reviewed, and the application of the principles to be derived from it discussed, in the reasons of Bleby J (with whom I agreed) and Gray J respectively in the recent judgment in Channel Seven Adelaide Pty Ltd v Manock.[10] It is accordingly not necessary to refer to Aon in detail in these reasons. Some propositions can, however, be summarised:1.Caseflow management is now an accepted aspect of the system of civil justice administered by courts in Australia.[11]2.Rules concerning civil litigation are intended to do justice to all litigants. They should accordingly be considered as directed both to the resolution of the dispute between the parties to the proceedings, and to the achievement by all parties to litigation before the Court of a just, timely and cost effective resolution of their disputes.[12]3.Considerations of the cost and delay to other litigants are relevant considerations in the application of caseflow management principles.[13]4.While a just resolution of the parties’ dispute remains a principal purpose of the interlocutory regime, what is a just resolution is to be understood in the light of the purpose and objectives stated in rules such as rr 3 and 113 of the Supreme Court Civil Rules 2006.[14]5.It should not be assumed that orders for costs, even solicitor/client or indemnity costs, will overcome all the prejudice occasioned by the opposing party.[15][9] [2009] HCA 27; (2009) 239 CLR 175.[10] [2010] SASCFC 59.[11] [2009] HCA 27 at [92]; (2009) 239 CLR 175 at 211.[12] Ibid at [93]-[94]; 211-12.[13] Ibid at [95]; 212.[14] Ibid at [98]; 213.[15] Ibid at [99]; 213.