Evatt v Brook
[2014] WASC 480
•16 DECEMBER 2014
EVATT -v- BROOK [2014] WASC 480
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 480 | |
| Case No: | CIV:2072/2012 | ON THE PAPERS | |
| Coram: | BEECH J | 16/12/14 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Order for further discovery | ||
| B | |||
| PDF Version |
| Parties: | MARK WILLIAM ADRIAN EVATT JOSEPH PETER IEMMA ALAN MICHAEL BROOK |
Catchwords: | Practice and procedure Discovery Application for further and better discovery Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 26 r 6 |
Case References: | Chappel v Hart (1998) 195 CLR 232 Crittendon v Freehills Hollingdale & Page (1994) VSC 465 Falkingham v Hoffmans [2014] WASCA 140 Pegrum v Fatharly (1996) 14 WAR 92 Provident Capital Ltd v Papa [2013] NSWCA 36 Roe v The State of Western Australia [2013] WASC 130 Rosenberg v Percival [2001] HCA 18 Wallace v Kam [2013] HCA 19 Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd (No 4) [2009] WASC 17 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
JOSEPH PETER IEMMA
Second Plaintiff
AND
ALAN MICHAEL BROOK
Defendant
Catchwords:
Practice and procedure - Discovery - Application for further and better discovery - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 26 r 6
Result:
Order for further discovery
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Defendant : No appearance
Solicitors:
First Plaintiff : Chew & Matthews
Second Plaintiff : Chew & Matthews
Defendant : Tang Legal
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
Crittendon v Freehills Hollingdale & Page (1994) VSC 465
Falkingham v Hoffmans [2014] WASCA 140
Pegrum v Fatharly (1996) 14 WAR 92
Provident Capital Ltd v Papa [2013] NSWCA 36
Roe v The State of Western Australia [2013] WASC 130
Rosenberg v Percival [2001] HCA 18
Wallace v Kam [2013] HCA 19
Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd (No 4) [2009] WASC 17
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
- BEECH J:
Introduction
1 In this action the plaintiffs sue their former solicitor in relation to their failed investment in a scheme to acquire and subdivide land for profit.
2 The plaintiffs apply for orders for further and better discovery of a number of categories of documents. For the reasons that follow, further discovery should be ordered for some categories of documents.
3 It is convenient to begin by outlining the plaintiffs' pleaded case.
Outline of pleadings
4 In broad summary, the statement of claim alleges the following:
(1) between 2006 and 2008, Kenneth Fraser, Morag Fraser and a company, Frasers - The Project Managers Pty Ltd (FTPM), promoted schemes for the purchase and subdivision of land referred to as Fraser Schemes. Fraser Schemes involved:
(a) the purchase of land by a company of which Rateb Jneid was a director:
(b) the sale of such land by the relevant Jneid company to a single purpose company, other than FTPM, for a higher price;
(c) the sale of future lots to be subdivided by the relevant purchasing company to members of the public under which the deposits paid by investing members of the public are dispersed to the relevant Jneid company prior to settlement of the sale and purchase of the land by the relevant purchasing company;1
(2) land known as the Lake Road Properties was the subject of a Fraser Scheme known as the Reserve Development;2
(3) the entity that was the vehicle for the Reserve Development was the Reserve Development Pty Ltd (the Company);3
(4) the Lake Road Properties were acquired under two contacts by Jneid companies known as Lakewest and Brookwest;4
(5) by May or June 2007, the plaintiffs had agreed to take over the Reserve Development;5
(6) on 19 June 2007, ASIC issued notices to the Company, FTPM and other associated persons.6 Following service of the notices, the defendant acted for Ken Fraser, Morag Fraser and FTPM in relation to the ASIC investigation of the Fraser Schemes and the subsequent winding up of the Fraser Schemes;7
(7) by letters written in July 2007, the defendant stated that he acted for the Company and for the plaintiffs;8
(8) the Reserve offer and acceptances (Reserve O&As) named the defendant as both the buyer's representative and seller's representative;9
(9) on 31 July 2007, the Company and the vendors agreed (the Penalty Interest Agreement) that the settlement date would be extended to 10 August 2007 in consideration for the purchase price being increased by $200,000;10
(10) on 8 August 2007, Evatt and Iemma signed loan security documentation in respect of the provision of finance, including guarantees to the bank financing the acquisition;11
(11) on 17 August 2007, the Further Penalty Interest Agreement was entered into, by which the amount of penalty interest under the Penalty Interest Agreement was $113,843.88;12
(12) on 21 August 2007, Maddington Gardens Pty Ltd (Maddington) as debtor, and the plaintiffs as guarantors, executed a document entitled Deed of Loan and Charge, documenting a loan of $315,250 from R&Z Investments Pty Ltd to Maddington, comprising the additional $200,000 and the amount of $115,250 being the accrued interest under the Penalty Interest Agreement;13
(13) on 22 August 2007, settlement of the Lake Road contract occurred and the Company became the registered proprietor of the Lake Road Properties;14
(14) from March and April 2007, the defendant was engaged by FTPM to provide legal services in relation to Fraser Schemes, including advice as to structuring;15
(15) it is pleaded in [76] that by 31 July 2007, the defendant knew or ought reasonably to have known of a number of the matters pleaded;
(16) on or before 8 August 2007, the defendant knew or ought to have known that he had various conflicts of duties and that various risks existed as pleaded in [80];
(17) by no later than 17 August 2007, the defendant knew or ought to have known that the Company was not obliged to enter into the Further Penalty Interest Agreement and it was not in its interests to do so;16
(18) by no later than 21 August 2007, the defendant knew or ought to have known that the plaintiffs were not obliged to sign the Deed of Loan and Charge and it was not in their interests to do so, and that to do so was a breach of their duties to Maddington;17
(19) the defendant was retained by the Company to act for it in relation to the Reserve Development, and to act for the plaintiff directors of the Company;18
(20) the defendant failed on and after 8 August 2007, to give advice of the risks and matters referred to in [81].19 In summary, the breaches of duty are through the defendant failing to advise the plaintiffs:
(1) to seek independent legal advice;
(2) of the risks associated with the matters that the defendant knew or ought to have known, namely:
(a) that the defendant had a conflict of duties resulting from his acting for the Company, FTPM, Maddington and the plaintiffs;
(b) that there was a risk the purchase of land for the Fraser Schemes, and the negotiations of the Lake Road Properties, were not at arms-length;
(c) that the Reserve O&A's were not enforceable;
(d) that the plaintiffs were not obliged to enter into the Deed of Loan and Charge;
(e) that there was risk that the Fraser Schemes could constitute unregistered managed investments schemes;
(f) the Company was not obliged to enter into the Penalty Interest Agreements;
(g) that the plaintiffs were not obliged to sign the Deed of Loan and Charge, and doing so would be a breach of their directors' duties to Maddington;
(21) if the defendant had not acted in breach of contract or negligently, the plaintiffs would not have entered into the guarantees or entered into the Deed of Loan and Charge on their own behalf and on behalf of Maddington;20
(22) as a result, the plaintiffs have suffered loss and damage, including the amounts they each lent to the Company to enable it to meet its obligations, and amounts paid under the guarantee or Deed of Loan and Charge.21
Discovery thus far
5 The parties have given general discovery.
6 In addition, by order on 16 October 2014, the defendant was ordered, with his consent, to serve a further list of discovery and claim for privilege of documents making up the defendant's files, except for any files opened for the sole purpose of carrying out settlement, in relation to matters in which the defendant was acting for FTPM during the period from February 2007 to 8 August 2007.
7 The parties' submissions state that a further list of documents was provided by the defendant on 25 November 2014, although that list is not in evidence.
The plaintiffs' application
8 The plaintiffs apply for further and better discovery of documents in the following categories:
(a) Relevant documents making up Brook's files, in relation to matters in which Brook was acting for FTPM or the entities set out in Schedule 1 between 1 August and 21 August 2007 including:
(i) All documents making up Brook's files in relation to matters in which Brook was acting for Maddington;
(ii) All retainer agreements between Brook and
A. FTPM; or
B. any of the persons listed in Schedule 1 to the SOC;
(iii) correspondent between Brook and any person that relates to:
A. the execution of the Fraser Schemes (including settlement);
B. the ASIC Notices;
C. the legal structure/s of the Fraser Schemes;
D. the possibility or the implications, of any one or more of Fraser Schemes being unregistered managed investment schemes;
E. public meetings arranged by FTPM in respect of Fraser Schemes;
F. the price of, or financing for, the purchase of any of the land listed in column (ii) of Schedule 1 by any company listed in column (iii) of Schedule 1;
G. the purchase price of any of the land listed in column (ii) of Schedule 1 by any company listed in column (iv) of Schedule 1;
H. the payment of amounts relating to the purchase of any of the land listed in column (ii) of Schedule 1 to or for the benefit of any company listed in column (iii) of Schedule 1 by or on behalf of any company listed in column (iv) of Schedule 1 prior to settlement.
(iv) contracts for the sale or purchase of the land listed in column (ii) of Schedule 1;
(v) timesheet entries relating to FTPM or Fraser Schemes;
(vi) correspondence between Brook and ASIC with respect to the Fraser Schemes or the ASIC Notices;
(vii) diary entries relating to FTPM or Fraser;
(viii) advices with respect to any of the Fraser Schemes;
(ix) correspondence with:
A. Jneid; or
B. the companies listed in column (iii) of Schedule 1, and their representatives;
on the subjects appearing in the subparagraphs to 1(c) above;
(x) company searches of companies listed in column (iii) of Schedule 1 carried out between 1 August 2006 and 21 August 2007;
(b) Relevant documents bearing dates which may be outside the date range limit set out in Category 1 as follows:
(i) correspondence between Brook and ASIC with respect to the Fraser Schemes or the ASIC Notices;
(ii) affidavits filed by the parties to the ASIC Proceedings;
(iii) invoices (including itemisations thereof) for time entered between 1 August 2006 and 21 August 2007 to:
A. FTPM; or
B. any of the persons listed in Schedule 1.
9 Principles relevant to an application for further and better discovery were summarised in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd22 as follows:
In determining whether to make an order for further discovery, the Court must have reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered: Beecham Group Pty Ltd v Bristol Myers Co [1979] VR 273. The Court must be able to infer from the nature of the document in question that it is relevant; it will not speculate as to its relevance. Relevance may either appear from the nature of the document or its contents, and if the latter then there must be a prima facie case as to the contents before an order for further discovery will be made: Astra-National Productions Ltd v Neo-Art Productions Ltd [1928] WN 218 at 219. Where an application is made in respect of a document referred to in a document already discovered (the relevance of the latter being conceded by its discovery) it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is relevant: see Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co [1882] 11 QBD 55; Kent Coal Concessions Ltd v Duguid [1910] 1 KB 904 at 915 and the discussion in PDM Australia Pty Ltd v Kellogg Overseas Corporation & Ors, unreported; SCt of WA; Library No 6646; 26 March 1987 at [5–14].
In determining whether a document relates to a matter in question, and, therefore, whether it ought to have been discovered, the test is that set out in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (supra) as follows:
'It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may-not which must-either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words 'either directly or indirectly' because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences.'
The matters in issue are to be determined by reference to the pleadings: Mulley v Manifold (1959) 103 CLR 341 per Menzies J at 345. But regard must also be had to the conduct and admissions of the parties and the nature of the action: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178 at 186.
It is also important to bear in mind that there is not a strict entitlement to an order for discovery, including an order for further discovery: Kent Coal Concessions Ltd v Duguid (supra) at 910. Moreover, amendments to the Rules in more recent times, including the introduction of O 1 r 4B and O 26 r 7, emphasise the need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery.
10 In the exercise of discretion to grant further discovery, the court should have regard, among other things, to the likely relevance and importance, in relation to the issues in the proceeding, the documents, and the likely time, cost and inconvenience of searching for and disclosing the documents.23
11 As Martin CJ observed in Roe v The State of Western Australia,24 the nature and extent of the apparent relevance of the document will be a significant consideration in the exercise of the discretion whether to order further and better discovery. Satisfaction of the low threshold of relevance in the Peruvian Guano sense will not necessarily justify an exercise of discretion to order discovery.
12 As can be seen, there are three main issues: likely existence of the document; relevance; and discretionary factors.
The disposition of the application
13 All of the documents in the various sub-categories of category (a) are said to be the documents making up the defendant's files in matters in which he was acting for FTPM or for an entity set out in sch 1 to the statement of claim. Schedule 1 to the statement of claim identifies in column (iv) the purchaser of the land for each development. I will refer to the purchaser as the Developer. The schedule does not identify the investors in each scheme who contracted to acquire subdivided lots.
14 With two exceptions, the statement of claim does not allege that the defendant acted for any of the parties identified as the Developer in sch 1 to the statement of claim. The exceptions are that the statement of claim pleads that the defendant acted for Maddington in relation to the purchase of the Maddington land, and for the Company in relation to the Reserve Development.
15 The affidavit of Mr Colin Thorpe in support of the application annexes a number of documents in support of the application for further discovery.25 Most of these documents have not been discovered by the defendant, notwithstanding that many of them are letters or emails to or from the defendant.26
16 The documents annexed to Mr Thorpe's affidavit demonstrate or suggest that the defendant acted for FTPM in relation to a large number of the Fraser Scheme projects.
17 There is also evidence that the defendant acted for some of the Developers. It is not in dispute that he acted for the Company in relation to the Reserve Development and, at least in some capacity, for Maddington. His letter of 2 August 2007,27 apparently to be sent to investors in the Mundijong Project, indicates that he was acting for the Developer on that project. The letter of 1 July 200728 from FTPM to the defendant also suggests that he was or may have been acting for Developers, not solely for FTPM.
18 In those circumstances, I think categories of discovery are appropriately framed by reference to documents on files on which the defendant was acting for a Developer, as well as files where he was acting for FTPM. To the extent the defendant did not act for a Developer, an order in those terms creates no burden.
19 The parties are at issue over whether the files relating to settlement should be the subject of discovery. In that respect it is, in my view, important to distinguish between settlement of the acquisition by the Developer of the initial large landholding, and settlement of the sale by the Developer to investors of subdivided lots. Documents on settlement files of the first kind should be discovered. Some categories of documents on such files are likely to be material to the issues, as I will explain later in these reasons. On the other hand, I do not think that files relating to the settlement of subdivided lots are sufficiently likely to contain material of any real value. Moreover, there could, potentially, be a large number of such files, so an order requiring examination by the defendant of such files would be unjustifiably burdensome.
20 The documents sought in the whole of category (a) are sought for the period from 1 August 2006 to 21 August 2007. I am not persuaded that the time span for any discovery should extend to the period before March 2007. There is no plea by the plaintiffs that the defendant acted for any relevant party at any time before March 2007. The plaintiffs submit that the longer date range is appropriate because 'documents which go to the precise date at which [the defendant] commenced acting for FTPM are discoverable' and because it will allow 'the issue of when and to what extent [the defendant] commenced acting for FTPM ... to be definitively resolved'.29 I do not accept that submission. There is no issue on the pleadings as to when the defendant commenced acting for FTPM. There is no pleading suggesting that he did so before March 2007.
21 Further, the plaintiffs' submissions assert that the discovery of documents earlier than this can be justified because such documents may be used as the basis to infer knowledge on the part of the defendant. No such knowledge is particularised. Further, I am not satisfied that there are reasonable grounds for being fairly certain that before March 2007, any such documents exist. Further, in my view, in circumstances where discovery of documents in the period March to August 2007 will be ordered, it is not appropriate, as a matter of discretion, to order discovery of documents in any category prior to March 2007.
22 Category (a)(i) seeks all documents making up the defendant's files in relation to matters in which he was acting for Maddington. The statement of claim pleads that the defendant acted for Maddington in relation to the purchase of the Maddington land (23 Morley Street Maddington) and that the defendant had a conflict of duties as a result of his representation of Maddington and of the plaintiffs. In the defence, the defendant admits that he acted as settlement agent in relation to that transaction, and otherwise denies what is pleaded in the statement of claim. Thus, the scope of the defendant's retainer and duties to Maddington are in issue. In those circumstances, I would order discovery of the defendant's file in acting for Maddington in relation to the purchase of the Maddington land.
23 I would not make any wider order in the terms sought in category (a)(i).
24 By category (a)(ii) the plaintiffs seek retainer agreements between the defendant and FTPM, or between the defendant and any of the persons listed in sch 1 to the statement of claim. I would order discovery of the retainer agreements between the defendant and FTPM for the period March 2007 to 21 August 2007. The existence of what appear to be interim invoices from the defendant to FTPM seems to me to give rise to sufficient grounds to be satisfied of the likely existence of such retainer agreements. In circumstances where the scope of the defendant's retainer with FTPM is in issue on the pleadings, any retainer agreements between them are sufficiently material to justify an order for discovery.
25 However, I would not order discovery of retainer agreements between the defendant and the persons listed as the Developer in sch 1. In circumstances where the scope of any such retainers is not in issue, and no conflict of interest by the defendant acting for those people is identified, I do not see such documents as sufficiently material to any issue.
26 I would order discovery of documents on the defendant's file acting for FTPM or a Developer that are correspondence in categories (a)(iii)B, C, D and E. Subcategory E is conceded; nothing more needs to be said about it. The documents attached to Mr Thorpe's affidavit satisfy me that there are reasonable grounds to be fairly certain that documents in categories (a)(iii)B, C and D exist. The existence of the pleaded conflicts of duty and interest or duty and duty, and the state of the defendant's knowledge as at August 2007, are squarely in issue. This includes the defendant's knowledge of the structure and general features of the Fraser Schemes.30 Only limited admissions are made in the defence in relation to those matters. Among other things, these documents are relevant to the allegation that the defendant was aware that there was a risk that the Fraser Schemes could constitute unregistered managed investment schemes. I see no discretionary reason to decline to make an order of these apparently relevant classes of documents from within the defendant's file(s) in acting for FTPM or a Developer.
27 It is convenient to deal at this point with a submission made by the defendant in opposition to categories (a)(iii)B, C, D, and much of the application. The defendant submits that there is a fundamental flaw in the plaintiffs' pleaded case. The defendant says that the risks which he is said to have failed to disclose never eventuated, and there is no plea in the statement of claim that they did eventuate. In that light, he submits that there can be no causation in relation to a failure to warn of a risk that does not eventuate. In support of that submission he relies on a line of High Court decisions in the context of medical negligence.31
28 In response, the plaintiffs point to a number of decisions involving professional negligence on the part of a solicitor in which the question of causation is addressed by reference to identifying the advice that a reasonable and prudent solicitor would have given, and the course that the plaintiffs would have taken upon receipt of that advice.32 Causation questions are, by their nature, sensitive to the facts and to the particular duty said to have been breached. I accept the plaintiffs' submission that an issue of this character should not, in effect, be decided adversely to the plaintiffs in the context of an application for further and better discovery.
29 I am not satisfied that discovery should be ordered in terms of category (a)(iii)A. To the extent that it differs from the content of category (a)(iii)C, its content is not entirely clear, apart from the specification, in parenthesis, that correspondence relating to any settlement is to be included. In my view, as I have said, files and correspondence relating solely to a settlement of a subdivided property in one of the Fraser Schemes are insufficiently likely to shed any real light on the issues at trial to justify the expense and inconvenience of searching for and discovering any such documents. I decline to make an order in terms of category (a)(iii)A.
30 It is convenient to deal with categories (a)(iii)F, G and H together. For the reasons that follow I am not persuaded to make an order in respect of these categories.
31 These categories are relevant, in the Peruvian Guano sense, to the plaintiffs' allegation that the defendant knew or should have known that the contracts of sale between the Jneid company and the Developer were not arms-length transactions, bearing on the risk that the purchase of the land for the Lake Road properties was not at arms-length. Notwithstanding that the plaintiffs point to one document33 that is within category H and has not been discovered by the defendant, the existence of correspondence pertaining to these very specific topics is, to my mind, somewhat speculative. As I will explain, I will order discovery in relation to the contracts for the sale and purchase of land under category (a)(iv). In my view, taking into account the limited foundation for expecting such documents to exist, beyond the one already identified, my assessment of the extent of the potential relevance and probative value of such material, and the expense and inconvenience of searching for such documents and assessing whether documents are within the category, discovery should not be ordered in respect of these categories.
32 I would order discovery of documents in category (a)(iv), namely contracts for sale of the land listed in column (ii) of sch 1 being the initial large landholding. There are reasonable grounds to be fairly certain that such documents exist, and are or were in the possession of the defendant: see the letter of 9 July 2007 from FTPM to the defendant sent by facsimile and attaching eight offer and acceptances.34 The contracts are relevant to the allegation that the defendant knew or should have known that Fraser Schemes acquisitions were not arms-length transactions. There does not seem to me to be any undue inconvenience or difficulty in discovering documents within this class.
33 Category (a)(v) seeks discovery of timesheet entries relating to FTPM or Fraser Schemes. In circumstances where the discovery in the various categories already identified will be given, I am not convinced that discovery should also be ordered in relation to timesheet entries. I am not persuaded that the likely additional assistance to be derived from such documents is sufficient to justify the trouble and expense of searching for and discovering all timesheet entries. The same applies in relation to category (a)(vii), being diary entries relating to FTPM or Fraser.
34 Category (a)(vi) seeks correspondence between the defendant and ASIC with respect to the Fraser Schemes or the ASIC notices. That will already be captured by category (a)(iii)B, C and D.
35 Category (a)(viii) seeks discovery of all advices with respect to any of the Fraser Schemes. To the extent that such advice is not captured by categories (a)(iii)B, C and D, its likely potential relevance is not sufficiently direct or significant to justify an order for discovery.
36 I would not order discovery in relation to category (a)(ix). It is a subset of category(a)(iii). For the reasons already given, I would order discovery in relation to that latter category to the extent of sub-categories (iii)B - E.
37 Category (a)(x) seeks discovery of company searches of the companies listed in column (iii) of sch 1 carried out between 1 August 2006 and 21 August 2007. I am not persuaded that the likely assistance to be gained from such documents justifies an order for discovery.
38 Category (b) seeks various sorts of documents outside the date range limit that had been set in category (a). I have already rejected the plaintiffs' application in category (a) insofar as it seeks documents commencing from August 2006. I have determined that the appropriate date range is March 2007 to 21 August 2007. I am not persuaded that there is sufficient justification to extend any of the categories in (b) outside of that range.
39 Category (b)(i) relates to correspondence between the defendant and ASIC with respect to the Fraser Schemes or the ASIC notices. Discovery will be made in relation to such correspondence in the relevant period, namely March 2007 to August 2007. It is known that some such correspondence exists within that period. There is an inadequate foundation in the pleadings and in the evidence before me to be confident that any such documents exist in the period prior to March 2007. Further, I am not persuaded that such correspondence, whether before or after the period already allowed, would be sufficiently likely to be significantly probative to justify an order for discovery.
40 Category (b)(ii) seeks affidavits filed by the parties to the ASIC proceedings. There is little or no evidence before me in relation to the ASIC proceedings. Certain Fraser Schemes were wound up by the Federal Court on ASIC's application in the middle of 2008.35 The evidence does not suggest that any affidavits came into existence, much less came into the defendant's possession, by 1 August 2007. While I accept that any such affidavit would be sufficiently relevant to meet the Peruvian Guano test of leading to a chain of enquiry, there seems to me to be an element of fishing in the application for this category. There is a substantial element of speculation in the plaintiffs' submissions on why these documents should be discovered.36 I am not persuaded that an order should be made.
41 Category (b)(iii) seeks invoices, including itemisation, for time entered between 1 August 2006 and 21 August 2007 to FTPM or any of the persons listed in sch 1. In view of the other categories of discovery that are to be ordered, I do not think that invoices outside of the relevant date range but relating to time entered when in that date range are sufficiently likely to significantly add to the material available to the plaintiffs.
Conclusion
42 For these reasons, I would make orders for discovery substantially to the following effect:
(1) documents constituting or contained in one of the defendant's files in relation to matters in which he was acting for FTPM or for a party (the Developer) named in column (iv) of sch 1 to the statement of claim, but excluding files for any sale by the Developer of a subdivided lot, between 1 March 2007 and 21 August 2007, of the following categories:
(a) the documents constituting the defendant's file for Maddington Pty Ltd in relation to the purchase of the Maddington land;
(b) all retainer agreements between the defendant and FTPM;
(c) correspondence between the defendant and any person relating to:
(i) the ASIC notices;
(ii) the legal structure of the Fraser Schemes;
(iii) the possibility or the implications of any one or more of the Fraser Schemes being unregistered managed investment schemes;
(iv) public meetings arranged by FTPM in respect of Fraser Schemes;
(d) contracts for the sale or purchase of the land listed in column (ii) of sch 1.
1 Statement of Claim (SC) [6] - [8].
2 SC [6].
3 SC [18].
4 SC [13], [14].
5 SC [28].
6 SC [29].
7 SC [31A].
8 SC [36], [39].
9 SC [41].
10 SC [42].
11 SC [44].
12 SC [48].
13 SC [53].
14 SC [55].
15 SC [68] - [70].
16 SC [81.1].
17 SC [81.2].
18 SC [86], [87].
19 SC [89].
20 SC [90].
21 SC [91], [92].
22Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3] - [6].
23Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd (No 4) [2009] WASC 17 [13].
24Roe v The State of Western Australia [2013] WASC 130 [10] - [13].
25 Affidavit of Colin Thorpe, annexures CGT 2 - CGT 11.
26 Affidavit of Colin Thorpe [18].
27 Affidavit of Colin Thorpe, annexure CGT 4.
28 Affidavit of Colin Thorpe, annexure CGT 8.
29 Affidavit of Colin Thorpe, annexure CGT 1.
30 SC [76], referring to SC [6] - [10].
31Chappel v Hart (1998) 195 CLR 232 [66]; Rosenberg v Percival [2001] HCA 18 [83]; Wallace v Kam [2013] HCA 19 [24] - [25].
32 See for example Falkingham v Hoffmans [2014] WASCA 140 [43]; Crittendon v Freehills Hollingdale & Page (1994) VSC 465; Provident Capital Ltd v Papa [2013] NSWCA 36 [83]; Pegrum v Fatharly (1996) 14 WAR 92, 107.
33 Affidavit of Colin Thorpe, annexure CGT 4.
34 Affidavit of Colin Thorpe, annexure CGT 8.
35 SC [11], [12]; D [5].
36 Affidavit of Colin Thorpe, annexure CGT 1 [14].
0
11
1