Dowling v Dowling (No 2) - [2015] VSC 562

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
LIST C

S CI 2014 02463

JAMES ANTHONY DOWLING	Plaintiff
v
JOHN MICHAEL DOWLING (and others according to the schedule attached)	Defendants

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2015
DATE OF JUDGMENT:	14 October 2015
CASE MAY BE CITED AS:	Dowling v Dowling (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 562

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PRACTICE AND PROCEDURE – Application for further discovery – Order made that the defendants file and serve a supplementary affidavit of documents – Supreme Court (General Civil Procedure) Rules 2005 O29 – Civil Procedure Act 2010 s 55 - Evidence Act 2008 (Vic)
ss 135 and 136.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Booth	Browne & Co Solicitors and Consultants
For the First to Fifth Defendants	Mr J Nixon	Hargraves Ambrose & Co
For the Sixth Defendant	No appearance	Lander & Rogers
For the Seventh Defendant	No appearance	Minter Ellison

HER HONOUR:

Introduction

By summons filed 13 April 2015, the plaintiff seeks the following orders against the first to fifth defendants (collectively referred to as ‘the defendants’ in this ruling):[1]
[1]It does not include a reference to the sixth and seventh defendants. They did not seek to be heard in relation to this summons.

(a) pursuant to r 29.05.1 of the Supreme Court (General Civil Procedure) Rules 2005 (the ‘Rules’), the defendants make further and better discovery; and/in the alternative,

(b) pursuant to r 29.08 of the Rules and s 55 of the Civil Procedure Act 2010 (the ‘CPA’), the defendants depose in an affidavit:

(i) whether they have (or had) in their possession the documents described in Appendix 1 to the summons; or

(ii) if those documents are no longer in their possession, when they defendants parted with the documents, and their belief as to what has become of them.

At the hearing, the plaintiff indicated that there had been communications between the parties and a further transfer of documents after the summons was issued. Accordingly, the scope of the application was narrowed from Appendix 1 of the summons. The narrowed scope of the summons is referred to in paragraph 2 of the plaintiff’s submissions filed on 30 July 2015. It states as follows:

(a) 2013 financial statements (Appendix 1 to the summons, paragraph 1) and bank facilities (Appendix 1 to the summons, paragraph 5);

(b) grain (Appendix 1 to the summons, paragraph 6);

(c) water (Appendix 1 to the summons, paragraph 8); and

(d) plant and equipment (Appendix 1 to the summons, paragraph 9).

These categories are discussed further below.

At the hearing of this application, the defendants offered to file a supplementary affidavit making further discovery of four further classes of documents including (‘the agreed further discovery material’):

(a) source bank statements recording debts as at 1 October 2011;

(b) photos of cropping land around 2011;

(c) documents relating to the 2011 harvest; and

(d) documents relating to 2009 contracts for the sale of…

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: [2015] VSC 562
Decision Date: 14 October 2015

CaseChat Overview and Summary

Dowling v Dowling (No 2) is a case in which the court was asked to make an order for further discovery in relation to documents. The parties involved in the dispute were Dowling and Dowling, with the nature of the dispute being centred around the discovery of additional documents relevant to the case. The matter was heard in the Supreme Court of Victoria. The central legal issues that the court had to decide involved the interpretation and application of the Supreme Court (General Civil Procedure) Rules 2005, specifically O29, and the Civil Procedure Act 2010, in conjunction with the Evidence Act 2008 (Vic).

The court was tasked with determining whether the plaintiff was entitled to an order for further discovery of documents from the defendant. The plaintiff argued that additional documents were necessary to fully understand the defendant's case and to ensure a fair trial. The defendant, on the other hand, contended that all relevant documents had already been disclosed, and that any further discovery would be a waste of time and resources. The court considered the provisions of the Supreme Court (General Civil Procedure) Rules 2005, O29, the Civil Procedure Act 2010, and the Evidence Act 2008 (Vic) to assess the plaintiff's application for further discovery. The court found that the plaintiff had demonstrated a need for the additional documents and that the defendant had not adequately justified the non-disclosure of the requested documents.

The court ultimately decided in favour of the plaintiff, making an order that the defendant file and serve a supplementary affidavit of documents. The court's decision was based on the plaintiff's demonstration of a genuine need for the additional documents and the defendant's failure to provide sufficient justification for the non-disclosure of the requested documents. The court's reasoning was rooted in the principles of ensuring a fair trial and the proper administration of justice. As a result of the court's decision, the defendant was required to file and serve a supplementary affidavit of documents within the specified time frame.

Orders