Delgado v BevChain Pty Limited
[2022] WADC 98
•16 NOVEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DELGADO -v- BEVCHAIN PTY LIMITED [2022] WADC 98
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: 3 & 9 NOVEMBER 2022
DELIVERED : Ex tempore
PUBLISHED : 16 NOVEMBER 2022
FILE NO/S: CIV 2498 of 2021
BETWEEN: MICHAEL JOHN DELGADO
Plaintiff / Respondent
AND
BEVCHAIN PTY LIMITED
Defendant / Applicant
Catchwords:
Practice and procedure - Discovery - Application for further and better discovery - Power to make discovery orders - Principles to be applied - Whether orders should be made in relation to documents and categories of document sought
Legislation:
District Court of Western Australia Act 1969 (WA), s 87
District Court Rules 2005 (WA), r 6, r 13, r 24, r 46, r 46(1), r 46(2), r 46(3)
Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 26, O 26 r 1 - r 7, O 26 r 8 - r 13, O 26 r 4, O 26 r 5, O 26 r 6, O 26 r 6(2), O 26 r 7, O 26 r 7(3), O 26 r 7(3)(a) - r 7(3)(d), O 26, r 8, O 26 r 9, O 26 r 8(1), O 26 r 9(1), O 26 r 11
Result:
Application allowed
Representation:
Counsel:
| Plaintiff / Respondent | : | Mr A J Stewart |
| Defendant / Applicant | : | Mr N Morrissey |
Solicitors:
| Plaintiff / Respondent | : | Accident Claims Lawyers |
| Defendant / Applicant | : | HWL Ebsworth Lawyers (Perth) |
Cases referred to in decision:
Airwaves Goldcoast Pty Ltd v Caneflight Enterprises Pty Ltd [No 2] [2013] WADC 28
Allen v Merym Pty Ltd t/as Emco Building [No 2] [2022] WADC 45
Chandler v Water Corporation [2004] WASC 95
Dray v Bae Systems Plc [2011] WADC 93
Marina Boulevard Medical Services Pty Ltd v Henson [2022] WADC 88
Meyer v Solomon [2021] WASCA 168
Perpetual Trustees Co Ltd v Burniston [2012] WASC 26
Pollard v Endale Pty Ltd [2009] WADC 97
PRINCIPAL REGISTRAR MCGIVERN:
(These reasons were delivered orally on 9 November 2022. They have been edited to correct matters of grammar and infelicity of expression.)
Introduction
This is an application for further and better discovery by the defendant in a personal injuries action, arising out of a work accident which occurred on 14 April 2020, in which the defendant has admitted negligence but in which causation of injury and quantum are in dispute.[1] The action is listed for a five‑day trial commencing on 5 December 2022.
[1] For ease of reference, in these reasons I will refer to the applicant as the defendant and the respondent as the plaintiff, being their respective positions in the substantive action.
The application was heard on 3 November 2022. Both parties made submissions orally and in writing,[2] and filed affidavits in support of their respective positions.[3]
[2] Defendant's submissions in support of application for further discovery and production filed 31 October 2022 (defendant's written submissions); plaintiff's outline of submissions filed 2 November 2022 (plaintiff's written submissions).
[3] The defendant filed four affidavits of Marino Mario Gismondi, respectively sworn 12 October 2022, 24 October 2022 (two affidavits) and 2 November 2022; the plaintiff filed the affidavit of Morgan Peter Hawkins sworn 2 November 2022.
In essence, the defendant seeks, and the plaintiff resists, orders requiring the plaintiff to discover and produce various bank statements.
(a)The defendant's chamber summons filed 12 October 2022 identified, at pars 2(a) - 2(h) thereof, eight classes of documents as being the subject of the application.
(b)However, by the time of the hearing:
(i)the plaintiff only contested the discoverability of the documents described at pars 2(f) - 2(g) of the chamber summons,[4] being bank statements (from 1 January 2017 to the present) for two bank accounts[5]; and
(ii)the defendant expanded the application to include discovery of bank statements (for the same period) of a third bank account.[6]
[4] Plaintiff's written submissions, pars 5 - 7.
[5] The plaintiff's personal bank account (par 2(f)) and a further account held jointly with Jennifer Delgado (par 2(g)).
[6] Held in the name of Delgado Enterprises Pty Ltd as Trustee for Delgado Trust.
For the reasons that follow, the application is allowed.
The rules
It is helpful to begin by identifying the various rules to which I will refer in these reasons, beginning with the observation that, except as otherwise provided by the District Court Rules 2005 (DCR), the Rules of the Supreme Court 1971 (RSC) apply to actions in this court.[7]
[7] District Court of Western Australia Act 1969 (WA) (DCA), s 87; DCR r 6.
The court has broad case management powers arising from r 24 DCR, which confers discretion to make:
… any procedural direction that in the Court's opinion it is just to make in a case to facilitate the case being conducted and concluded efficiently, economically and expeditiously.
Those powers are exercised having regard to the case management objectives identified in O 1 r 4B RSC.[8]
[8] Which include promoting the just determination of litigation, disposing efficiently of the business of the court, maximising the efficient use of available judicial and administrative resources, and facilitating the timely disposal of business.
Relevant to discovery, r 46 DCR modifies[9] but does not displace (and indeed expressly affirms) the application of O 26 RSC.
[9] Notably in relation to times for compliance and by providing for informal discovery.
The system of discovery and inspection[10] contemplated by O 26 RSC, as modified by r 46 DCR, is dual-faceted[11] - requiring each party, upon request, to:
(a)identify (in list form[12]) 'all documents which are or have been in his possession, custody or power relating to any matter in question' in the action[13] (discovery). The obligation to give discovery is a continuing one[14] and applies between all parties[15]; and
(b)subject to claims of privilege or objection, produce those documents for inspection by another party.[16]
[10] Sometimes referred to collectively as 'discovery' in a broad sense: see Civil Procedure Western Australia, [26.02.2].
[11] With discovery (in the true, narrow sense as described in subparagraph (a) below), including determinations and orders related to such, being dealt with in O 26 r 1 - r 7; and the production of documents for inspection, including orders related to such, being dealt in O 26 r 8 - r 13.
[12] As provided for in RSC, O 26 r 4, as modified by DCR, r 46(2) - r 46(3).
[13] DCR, r 46(1).
[14] RSC, O 26 r 2.
[15] With co-defendants having, as between one another, equivalent entitlements and obligations: O 26 r 5.
[16] RSC, O 26 r 8.
Of particular relevance to this application, O 26 r 6 RSC (Orders for information as to particular documents) and O 26 r 7 RSC (Orders as to discovery) deal with particular orders in relation to discovery, and O 26 r 9 RSC deals with orders for the inspection of documents.
Parties' positions
The defendant's written submissions (filed before those of the plaintiff):
(a)rely on O 26 r 7 RSC as conferring on the court a wide discretionary power to order discovery, to be exercised in accordance with the principles in O 1 r 4B;
(b)refer also to O 26 r 11 to the effect that an order for production should only be made if the court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs; and
(c)are otherwise directed principally to questions of merit - that is, whether the documents the subject of the application relate a question in issue between the parties and ought in the exercise of the court's discretion be ordered. It argued, in essence, that:
(i)the plaintiff claims for past and future economic loss on an assertion that he cannot work, and has not worked since the accident in April 2020;
(ii)his discovery is deficient in that it does not include all documents (specifically, by the time of hearing, his bank statements) relevant to assessing (and forensically testing) his income and therefore his claim of incapacity and resulting damages;
(iii)the existence of the bank statements sought are not in contest,[17] and there is no doubt that they are documents within the power and control of the plaintiff; and
(iv)the documents sought can be obtained by the plaintiff with relative ease, and their production is consistent with case management principles (ensuring the fullest evidence is put before the court, minimising disruptions to the trial) and should therefore be ordered in the exercise of the court's discretion.
[17] Indeed so much was expressly conceded by the plaintiff's counsel in the hearing.
The plaintiff resists the application on both procedural grounds and on the merits. In summary, the plaintiff's contentions relating to:
(a)his procedural objections are that:
(i)in compliance with r 46(3) DCR (which modifies O 26 r 1 RSC), the plaintiff has provided a list of its discoverable documents and so no order for further discovery can be sought, or orders made, under O 27 r 7 RSC;
(ii)the only avenue open to the defendant is to seek an order pursuant to O 26 r 6 (an order requiring formal discovery) which has not been sought; and
(iii)those premises are fatal to the applications and the orders sought in the defendant's chamber summons cannot be made;
(b)his substantive objections are that, in any event:
(i)the plaintiff has discovered all of his individual and business tax returns, both prior to and post the date of injury, which evidence the earnings that he received before and after the accident;
(ii)there is no evidence that the plaintiff has received earnings from any other source, or that he has failed (whether deliberately or otherwise) to disclose such income to the Australian Tax Office;
(iii)evidence of the plaintiff's earnings following the accident is contained within the discovered tax returns and it is unnecessary to obtain the plaintiff's bank statements to 'test the plaintiff's allegations of total incapacity';
(iv)accordingly, the documents the subject of the application do not relate to a matter in question in the action; and
(v)as to the exercise of the court's discretion, bank statements may contain personal and private information that is not necessary for the fair and just determination of the case.
In the hearing, in response to the plaintiff's procedural objections, counsel for the defendant submitted that:
(a)an order for inspection of the documents the subject of the application could be made under O 26 r 9 RSC, independently of those documents having been discovered (in the narrow sense) or an order having been made for discovery under O 26 r 6 or O 26 r 7 RSC; and
(b)the court has a broad discretion under r 13 DCR to obtain evidence.
Disposition
Power and procedure
In my view, contrary to the defendant's contentions, the power to order inspection under O 26 r 9 RSC is not independent of discovery having been given or ordered.
That is because:
(a)O 26 r 9(1) RSC expressly applies to a party who 'is required by r 8(1) to serve a notice, or who is served a notice under r 8(3)'; and
(b)O 26 r 8(1) RSC in turn expressly refers to a requirement to allow inspection of 'documents mentioned in the list'.
Accordingly, under the dual-faceted system created by the rules, discovery (in the narrow sense) is the necessary, antecedent gateway for inspection.[18]
[18] And this is unsurprising given that the lists of documents produced in discovery serve useful case management objectives, including the identification and description of documents for the purposes of the trial itself.
However, I am also of the view that the procedural limitations on the ability to order production contended by the plaintiff do not find support in:
(a)the wording of the relevant rules; or
(b)the case law.
Construction
The plaintiff did not cite authority in support of the contention that, once a list or lists of documents have been provided under O26 r 1 RSC (as modified by r 46 DCR), an application for discovery:
(a)cannot be made under O 26 r 7; and
(b)can only be made under O 26 r 6.
In my view, that outcome does not derive from the construction of the rules.[19]
[19] The accepted approach to construing written laws is well established and need not be repeated here - see for example: Meyer v Solomon [2021] WASCA 168 [76] - [80] and the authorities cited therein.
O 26 r 7 RSC provides that an application under that rule may be made at any time by a party 'whose request under r 1 for discovery has not been satisfied' (emphasis added).
(a)When O 26 r 1 RSC is read as being subject to any contrary provision in r 46 DCR,[20] a party's request for discovery is not confined to a request for discovery on affidavit.[21]
(b)It also does not necessarily follow that the provision of a list of documents means that a request for discovery has been 'satisfied' within the meaning of that term in O 26 r 7. Indeed, the language appears to be deliberate, in that it does not refer to discovery not having been provided. Rather, the reference to the request not being satisfied suggests a broader test, inclusive of the adequacy of discovery.
[20] As to which see [5] above.
[21] Because DCR, r 46(3) which explicitly provides that, with the consent of each other party, 'discovery may be by way of an informal list'.
While there is a very close relationship between O 26 r 6 and O 26 r 7 RSC,[22] it appears that the language in O 26 r 6 RSC:
(a)responds most squarely to applications concerning the absence of, or some alleged deficiency in, a list capable of identifying the existence of, or the party's control over, documents; and
(b)does not as squarely respond to circumstances such as the present, where the existence of and control over the documents is not in dispute, but rather the need to produce them is disputed.
In my view, those latter circumstances are more squarely suited to orders 'as to discovery' (reflected in the language of the heading to, and content of, O 26 r 7) than to orders for 'information about documents' (in the language of the heading to, and content of, O 26 r 6).
[22] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [28] (Perpetual).
The view expressed in [16] above finds further support when O 26 r 6(2) RSC is considered - it provides that:
An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 1 or rule 7 [emphasis added].
This expressly contemplates that an order may be made under O 26 r 7 RSC without an order having first been made under O 26 r 6.
Further, O 26 r 7 itself includes, at subrule (3)(e), discovery of certain documents by making and filing of an affidavit verifying the list as one of the discretionary orders under O 26 r 7(3) - demonstrating that the other orders contemplated in O 26 r 7(3)(a) - r 7(3)(d) do not depend on an order for formal discovery as a prerequisite.
Relevant case law
Moving to the case law, it has been consistently recognised that the powers of this court to order further discovery are broad, arising from at least three sources: O 26 r 6, O 26 r 7 and the court's inherent power.[23] As to the latter, although this court does not exercise the same inherent jurisdiction as the Supreme Court, it does exercise similar powers to regulate its own processes arising as an incident of its statutory powers.[24] In the case of discovery, Sleight DCJ found such power to inhere in r 46 DCR.[25] I would posit that it also inheres in r 24 DCR.[26]
[23] Perpetual [29].
[24] As to which see Marina Boulevard Medical Services Pty Ltd v Henson [2022] WADC 88 [27] and the authorities cited therein, and DCA, s 6(1).
[25] Pollard v Endale Pty Ltd [2009] WADC 97 [10].
[26] Noting that orders made under DCR r 24 have included modifying the general obligation to give discovery in DCR r 46(2): Airwaves Goldcoast Pty Ltd v Caneflight Enterprises Pty Ltd[No 2] [2013] WADC 28 [14], and modifying the obligation to provide inspection: Dray v Bae Systems Plc [2011] WADC 93 [13].
As to the relationship between O 26 r 6 and O 26 r 7(3) RSC, in Perpetual Edelman J described the latter rule as conferring the 'widest powers' of discovery,[27] rather than its exercise being confined by an antecedent application under the former rule. Indeed, the only real limitations to the exercise of power under O 26 r 7(3) identified by his Honour[28] were that, whatever source of power the court relied upon to order further discovery, three requirements (threshold requirements) must be satisfied, namely:
(1)the court has reasonable grounds for being fairly certain that the documents sought (or class of documents sought) are in existence;
(2)those documents sought are relevant; and
(3)those documents ought to have been disclosed.[29]
[27] Perpetual [28].
[28] In addition to the express need to consider the case management principles in O 1 r 4B RSC.
[29] Perpetual [29].
Although a list of documents verified by affidavit served pursuant to the discovery process is generally treated as conclusive as to its contents, that conclusion falls away in the face of an assessment that a party may possess a document or class of documents which relate to matters in question which have not been discovered.[30]
Conclusion as to power and procedure
[30] Chandler v Water Corporation [2004] WASC 95 [10] - [11].
I do not consider that the court's power to make an order under O 27 r 7(3) RSC is limited in these circumstances by:
(a)the plaintiff's provision to the defendant of lists of the documents it says are discoverable, and
(b)the absence of an application having been made under O 26 r 6.
Even if I am wrong about that, it would be antithetical to the broad inherent power of the court to regulate its own proceedings to apply any such limitation to its exercise.[31]
[31] Taking account, in particular, of the relevance of adequate discovery to the just determination of litigation in this court, and the efficient conduct of proceedings: RSC, O 1 r 4B. This is not to suggest that the contended procedural matters are not relevant to the exercise of the court’s inherent power to order further discovery; rather, that they do not limit its existence.
I do not consider it necessary to have recourse to r 13 DCR.
I am satisfied that there is power in the present circumstances to make the orders sought by the defendant if the threshold requirements identified in [23] above are satisfied and there is merit in doing so.
Merits
As to the threshold requirements:
(a)as noted above, I am satisfied and it is not in dispute that the bank statements the subject of the application are in existence and within the power, custody or control of the plaintiff - so much was expressly conceded in the course of the hearing; and
(b)the real questions, then, are whether the documents are relevant and ought to be disclosed.
The (additional) principles relevant to those remaining questions and the making of an order for further discovery may be summarised as follows:
First, the onus is on the party seeking further discovery to satisfy the court that the orders should be made. …
… [Whether] a document is relevant to a matter in issue is to be determined by reference to the pleadings, but regard must also be had to the conduct and admissions of the parties and the nature of the action.
… [Whether] a document is relevant is, of course, a reference to documents which may either (a) advance a party's case or damage his or her opponent's case or (b) lead to a train of inquiry that would either advance a party's case or damage his or her opponent's case.
… [The] power to order further discovery is discretionary. The court will only exercise its discretion to order further and better discovery, or discovery of specific documents, if it is necessary for the fair and just determination of the issues in contention and for the preparation of, or for the conduct of, the case at trial.[32]
[32] Allen v Merym Pty Ltd t/as Emco Building [No 2] [2022] WADC 45 [51] - [56].
Finally, discretion is exercised with regard to the overriding objectives of case management and the just resolution and determination of litigation. Relevant to that exercise:
One [but not the only] matter relevant to the exercise of the discretion is whether the production of the documents would be unnecessary or oppressive.
…
In determining whether discovery is oppressive, relevant factors include the value of the discovery to the party seeking it and the burden imposed on the party giving it.[33]
[33] Perpetual [34] - [35] (citations omitted).
In this case:
(a)I am satisfied that there is a dispute between the parties, arising properly from the pleadings, as to the extent of the plaintiff's incapacity and residual earning capacity.
(b)I do not need to be satisfied or find that the bank statements are strictly necessary to the determination of the dispute. Rather, it is sufficient that they are reasonably necessary for the preparation for and conduct of the trial. Further to be so satisfied, I do not need to find that there is any deficiency in or disparity between the tax returns discovered by the plaintiff and the bank statements (or, if such deficiency or disparity exists, its cause). Rather, I need only be satisfied that the bank statements have forensic weight. In this latter regard, I note that tax returns are summative and rely on the declarations of the taxpayer. Bank statements, on the other hand, are original and independently produced records and will contain more granular information about the financial inputs and outgoings of the plaintiff.
(c)In circumstances where the affidavit evidence filed by the defendant in support of the application raises a line of enquiry that is not unreasonable and falls within the ambit of the dispute on the pleadings, I am satisfied that the bank statements are relevant. In the absence of other considerations that would outweigh their forensic relevance, they should be discovered.
(d)The documents sought are not unduly onerous to produce (indeed this was not even contended). Nor are they likely to be particularly voluminous and so I do not consider that their discovery, shortly before trial, is likely to delay or impair the trial. To the contrary, I consider that their discovery before trial coheres with efficient case management principles. I do not consider that there has been unreasonable delay in the defendant seeking further discovery.
(e)The fact that documents are confidential or personal does not outweigh the merit of having the best evidence relevant to the issues between the parties available for production at trial.[34]
(f)Accordingly, there are no or no sufficient countervailing considerations that lead me to decline to exercise my discretion in favour of ordering discovery of the plaintiff's bank statements the subject of the application.
[34] See, for example: Perpetual [37].
Conclusion
The application is allowed. I will hear the parties in relation to the precise orders that should follow, and in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to Registrar
16 NOVEMBER 2022
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