Deakin University v Davidson & Ors

[2000] VSCA 47

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No.4606 of 2000

DEAKIN UNIVERSITY

Applicant (Plaintiff)

v

DAVIDSON AND ORS.

Respondents (Defendants)

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JUDGES:	PHILLIPS and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING	24 March, 2000
DATE OF JUDGMENT:	24 March, 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 47

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Practice and procedure - Discovery ordered by reference to defence - Defence embarrassing - Leave to appeal granted - Appeal heard forthwith and allowed - Application to strike out paragraphs of defence granted - Order for discovery set aside without prejudice to its being renewed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D.M.B. Derham, Q.C. with Mr I.W. Upjohn	Blake Dawson Waldron
For the Respondents	Mr M.G.R. Gronow	Di Mauro Davis Zucco

PHILLIPS, J.A. (delivering the judgment of the Court):

1. This proceeding began as an application by the plaintiff below for leave to appeal against an order for further discovery made by His Honour Judge Hanlon in the County Court on 1 March 2000.

1. The order was made on the application of the defendants by summons filed on 7 February 2000.  The summons was met by a cross-summons filed by the plaintiff on 21 February seeking to strike out certain paragraphs of the defendants' defence of 17 March 1999 and of the defendants' further and better particulars of 18 October 1999 on the ground that those paragraphs were embarrassing and/or did not disclose a defence.

1. Judge Hanlon, as is apparent, granted the defendants' application for further discovery, but his Honour must be taken to have refused the plaintiff's application to strike out.  The plaintiff then filed a summons in this Court on 10 March 2000 seeking leave to appeal against paragraphs 5 and 6 of the order made on 1 March and, if leave were granted, seeking to have the appeal heard instanter.

1. A trial date has been fixed in the County Court of 29 May next.

1. The application came on for hearing before us last Friday and it quickly became apparent that in very large part the order for further discovery depended upon paragraphs 8 and 8A and, to a lesser degree, paragraph 15 of the defendants' defence, three of the very paragraphs which the plaintiff was seeking to have struck out.

1. After exploring this matter and the pros and cons of the pleading with counsel last Friday, we invited Mr Gronow to seek instructions on the matter in case it became possible for us by consent to grant leave to appeal, to hear the appeal and to make orders in respect of the defendants' pleadings sufficient to dispose of the argument over discovery.  However, that did not prove possible and so today we have heard, first, the application for leave to appeal.  After argument we granted that leave and after further argument we decided that we would hear the appeal forthwith.

1. Given the warning last week that that course would be considered today, Mr Gronow frankly conceded that he could not say he was unprepared to argue the appeal and, given the urgency of the matter in view of the trial date of 29 May, it seemed to us fair and just to hear the appeal without further delay.

1. Mr Gronow did point out in the course of his submissions that we would then not have the benefit of the judgment of His Honour Judge Hanlon; we would be left only with the versions of what was said orally prepared by each party from the notes taken on the day.  There was, however, no significant disagreement between these versions and so we saw no ground for supposing that anything might be gained by waiting for what I might dub "the authorised version".

1. It goes without saying that in deciding to hear the appeal instanter we would treat as the notice of appeal the proposed notice of appeal which was Exhibit WBS2 to the affidavit of Mr Southey sworn on 10 March last.

1. We have now heard the appeal.  We have had the benefit of very helpful outlines of argument from both sides which, though directed at the application for leave to appeal, necessarily canvassed the merits and we have heard from Mr Gronow orally.

1. At the end of the day we remain of the view which we first entertained on looking at the defendants' pleading and considering the issues:  that is, that the plaintiff's application to strike out certain paragraphs of the pleading and particulars should plainly have succeeded.

1. For the reasons which have been much canvassed in argument, we think that paragraphs 8 and 8A of the defence are plainly embarrassing in their present form and should on that account have been struck out.  We do not attempt to canvass all their deficiencies, but we do say the following in case it is of assistance hereafter.  Contrary to Mr Gronow's submission, we think that it was incumbent on the pleader, if minded to say that the relevant duty was less in scope than that alleged by the plaintiff, to say in what precise respect or respects it was so.  Paragraph 8 is deficient in that regard and it is not cured by the proleptic reference to paragraph 8A. 

1. Moreover, paragraph 8A, in referring to a term that the plaintiff permitted its staff to engage in outside consultancies, introduces an irrelevancy which goes altogether outside the plaintiff's claim.  As has been acknowledged, I think, by counsel in the course of the debate this morning, the plaintiff's claim is not for the defendants' having entered into outside consultancies per se, but for alleged misconduct in relation thereto.  It is that case which the defendants must meet by their pleading, and if we may say so, they would be well advised to respond to each allegation of breach with more specificity than can be achieved by the vague and somewhat confusing paragraph 8A.

1. As for paragraph 15, the particulars given thus far do not support the allegation there made.  We could strike out the particulars or we might strike out the allegation.  Mr Gronow said that if he lost the battle over paragraphs 8 and 8A, he would be seeking some more general liberty to replead.  Accordingly, we think we should strike out paragraphs 8, 8A and 15 with liberty to the defendants to replead within ten days of this order.  To that end the appeal should be allowed.

PHILLIPS, J.A.:  Mr Gronow, that makes plain where we've got to so far on the appeal.  We have dealt with the application to strike out.  I suppose that it follows that the order for further discovery falls.  What we are minded to do at the moment is to dismiss the application for further discovery without prejudice to its being renewed if and when and your clients are so advised.

MR GRONOW:  If I may speak to my instructor for a moment.  It's obvious that discovery may well have to be revisited after we replead.  If I may just have a brief word with my instructor.

(Discussion ensued.)

PHILLIPS, J.A.:  This may help you.  In our view, as presently advised, discovery was ordered on a false basis.  The pleading was not as it ought to have been, and until it is as it ought to be, you cannot determine questions of discovery.  It seems that paragraphs 8 and 8A were certainly very significant to the order made and so the simplest thing to do is to vacate the orders made and leave discovery to be worked out at the end of the day when the pleading is in order.  That's our present inclination.

MR GRONOW:  Yes, I'm instructed to not say anything in opposition to that, Your Honour.

(Discussion ensued re proposed orders.)

PHILLIPS, J.A.:  The orders the Court makes are as follows.  On the application by summons filed on 10 March 2000, order as follows: 

1.That leave to appeal be granted and that the costs of the application be costs in the appeal;

2.That the proposed notice of appeal which is Exhibit WBS2 to the affidavit of William Blaze Southey sworn on 10 March 2000 do stand as the notice of appeal;

3.That the appeal be treated as instituted instanter and that it be heard forthwith; 

4.        That the appeal be allowed with costs;

5.Set aside paragraphs 5 and 6 of the order made by His Honour Judge Hanlon in the County Court on 1 March 2000 and order in lieu thereof as follows: 

(Discussion ensued.)

5.On the plaintiff's summons filed on 21 February 2000 order that paragraphs 8, 8A and 15 of the defendants' defence and counterclaim of 17 March 1999 be struck out with leave to the defendants to replead generally on or before 5 p.m. on 3 April 2000, and further that the defendants do pay the plaintiff's costs of the application; 

6.On the defendants' summons filed on 7 February 2000, order that the application for further discovery be dismissed with costs, without prejudice to that application's being renewed in due course, if the defendants are so advised.

(Discussion ensued.)

A certificate may be applied for in writing.

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