Frontier Advertising Pty Ltd v Melbourne and Olympic Parks Trust
[2004] VSC 456
•8 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 7602 of 2001
| FRONTIER ADVERTISING PTY LTD | Plaintiff |
| v | |
| MELBOURNE AND OLYMPIC PARKS TRUST | Defendant |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 26, 29 May 2003 | |
DATE OF JUDGMENT: | 8 November 2004 | |
CASE MAY BE CITED AS: | Frontier Advertising v Melbourne and Olympic Parks Trust | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 456 | |
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Discovery – appeal from Order of Master – relevance – appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Byrne | |
| For the Defendant | Mr J. Edgar |
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HIS HONOUR:
I regret the delay that has occurred in giving judgment in this Practice Court matter and that the judgment was not given promptly. The responsibility is mine entirely. Having heard counsel, I had put the matter aside to examine the ethical considerations applicable to Exhibit SPB22 to Mr Byrne's shorter affidavit of 8 May 2003 and Exhibit JAE1 to Mr Edgar's affidavit of 22 May 2003, namely the inadvertent faxing to the plaintiff's solicitors of the confidential fax marked Confidential at its head of 27 March 2002 to the defendant by Mr Edgar. Unfortunately, the matter then was not reviewed. When the matter came to my attention late last week I had the matter listed for judgment today.
This is an appeal from a decision of Master Wheeler made on 7 March 2003 upon a summons filed on behalf of the plaintiff on 22 January 2003 for the provision by the defendant to the plaintiff of further and better discovery. The Master made the orders on 7 March 2003 and on 13 March 2003 published his reasons therefor. The Master made an order that the plaintiff file a supplementary affidavit of documents as to some limited matters set out in paragraph 1 of his order, but otherwise dismissed the plaintiff's summons. It is from that dismissal that the plaintiff appeals. The appeal is, of course, de novo. The plaintiff before me also seeks leave to comprehend a body of further documents for discovery and inspection.
The brief history peripheral to the appeal is this. The documents ordered on 7 March 2003 by Master Wheeler to be discovered were discovered by the defendant, as appears from the defendant’s further supplementary affidavit of documents sworn by Mr G.W.A. Jones on 20 June 2003. On 12 March 2003 the plaintiff’s solicitors filed a notice of appeal from the Orders of Master Wheeler of 7 March 2003. The matter came on before Coldrey J in the Practice Court on 12 May 2003 and was adjourned for further hearing in the Practice Court on 26 May 2003, with costs reserved. The matter came on before me in the Practice Court on 26 May 2003. On that day the plaintiff sought leave to initiate further items so I referred the matter back to the Master. On 27 May before the Master the plaintiff did not pursue leave but issued a fresh summons, upon which Master Wheeler made Orders and which do not concern this appeal. Then the appeal came on before me again in the Practice Court on 29 May 2003.
The factual material relevant to the appeal is contained in a number of affidavits. They are, on behalf of the plaintiff, the initiating affidavit of Mr S.P. Byrne, the learned solicitor for the plaintiff, sworn on 5 March 2003 with 16 exhibits, two affidavits with exhibits of Mr Byrne of 8 May 2003 and an affidavit of 9 May 2003 of Mr Byrne. On behalf of the defendant and filed before me were affidavits with exhibits of the defendant's learned solicitor, Mr J.A. Edgar, sworn 12 May 2003 and 22 May 2003.
There are three essential matters in the appeal before me. First, the naming rights agreement whereby the plaintiff claims to be entitled to discovery of the whole of the naming rights agreement but wherein the Master gave restricted discovery related to those parts as to sums to be paid by Vodafone to the defendant and to how the agreement could be determined. Second, documents relating to negotiations between the defendant and Vodafone and the entry into the naming rights agreement between the defendant and Vodafone, the operation of that agreement and payments by Vodafone to the defendant under the agreement. And thirdly, documents relating to IMG and all potential naming rights sponsors for the venue with whom the defendant conducted negotiations including the commission requested by IMG.
As I have said, there was preliminary disputation before me as to the admissibility and relevance of material in the numerous affidavits filed since the hearing before the Master, but in the event I considered it was proper to look at all the material in order to seek to comprehend that which each party sought to litigate on the matter of discovery.
Turning first to the primary matter, the naming rights agreement. The relief sought was discovery of the naming rights agreement as a whole between the plaintiff and Vodafone. The Master ordered the discovery of parts of the agreement which related to the sums to be paid by Vodafone to the defendant and to the circumstances whereby the agreement could come to an end. On this, as on the other two discrete matters falling for consideration, reference to the issues joined between the parties by the pleading is apposite and necessary.
By its amended statement of claim of 22 August 2002, the plaintiff claims specific performance or damages in respect of an agreement between the plaintiff and the defendant under which the plaintiff was to be rewarded for successfully inducing a corporation, in the event Vodafone, to the defendant to take up the naming rights in respect of a stadium in the course of construction at Olympic Park. The plaintiff pleads three agreements: an agency agreement, a compromise agreement and a further compromise agreement, the second of which supplanted the first and the third of which supplanted the second. The plaintiff alleges there should have been a commission on the "total fee payable" by Vodafone, as can be seen by paragraphs 3, 9 and 12(b) of the amended statement of claim. Alternatively the plaintiff pleads another sequence of successive agreements: an agency agreement, a first variation thereto and a second variation thereto, to like effect. Alternatively, a quantum merit by reference to the "total fee payable by Vodafone" to the defendant is pleaded by paragraph 30.
The Master's decision was to limit discovery to the parts of the naming rights agreement between Vodafone and the defendant as related to the sums to be paid by Vodafone and the circumstances under which the naming rights of agreement may terminate. In my view that decision was entirely correct. In coming before me de novo, I make a like decision.
It is plain from the terms of the pleadings to which I have referred, although not recited in full, that which the Master ordered to be discovered was appropriate to be discovered. Beyond that, in my view, discovery was not required or apposite. Doubtless such discovery might assist one party or the other in terms of credit or collateral matters; but in terms of relevance, determined by reference to the issues which in turn are defined by reference to the pleadings, discovery should be made as to the amounts to be paid by Vodafone and the circumstances of possible termination. The relevance of that material is that the plaintiff alleges that the remuneration claimed by it is linked to what was paid by Vodafone to the defendant under that agreement. Nothing further is required by way of discovery. No good reason in terms of relevance and issues has been advanced on behalf of the plaintiff for further discovery than that.
I turn to the next major category, documents relating to negotiations between the defendant and Vodafone and the entry into the naming rights agreement between the defendant and Vodafone, the operation of the agreement and the payments by Vodafone to the defendant under the agreement. Vodafone is not a party to these proceedings. The communications which are sought relate to communications between the defendant and a non party. In respect of matters touching upon issues between the defendant and the plaintiff, as revealed in the Vodafone history, those items are discovered. Documents touching upon the Vodafone negotiation at the relevant time, such as 30 November and 7 December are discovered and likewise the payments. However, what is not discoverable is the whole history or ambit or fabric of the dealings between the defendant and the non party Vodafone. What is discoverable is that which bears upon the issues between the plaintiff and the defendant, and in my view again the Master was entirely correct in limiting his order in the way he did.
Thirdly, and finally, the documents relating to I.M.G. and other potential naming rights sponsors, including the commission reflected by I.M.G. is in a different category. In my view analytically speaking none of those documents is strictly speaking discoverable. The defendant did in fact discover some of them. It says it did so, in the words of learned senior counsel for the defendant, "out of a stated desire to allay suspicion, but not out of a concession of relevance". In my view the circumstance that that discovery has been made does not found a coercive order for further discovery unless that further discovery is justified in law. In my view it is not.
In all the circumstances I consider that none of the further material sought by the plaintiff on this appeal properly is discoverable. It is not necessary to refer to the further affidavit material that I recited at the outset. I dismiss the appeal in all its respects.
Costs ordinarily follow the event, and as the appeal has been wholly unsuccessful I order that the costs of the appeal of the defendant be paid by the plaintiff.
Counsel, I will receive the judgment in the morning and I will revise it tomorrow night and you will have it before lunch time on Thursday morning. I am sorry for the delay, as I have said, and the unfortunate circumstance that it occurred. I am obliged to you both for the courtesy of your attendance and my associate will e-mail to you on Thursday morning the published judgment.
(Following written submissions)
11 November 2004
I order that the defendant’s costs of the appeal including the appearances before me on 26 and 29 May 2003 be paid by the plaintiff. That is because the costs follow the event. Further, in relation to 26 May 2003 the defendant reasonably attended court in response to the summons of the plaintiff, although the matter was not heard by me that day but was referred to the Master.
Further I order that the costs of the defendant reserved by Coldrey J on 12 May 2003 be paid by the plaintiff. That is because the defendant reasonably attended court in response to the summons of the plaintiff filed on 12 March 2003 but not served until 6 May 2003. As a consequence of the late service the matter was unable to proceed because the defendant needed to file and serve answering material, in particular in relation to the use by the plaintiff of a confidential letter marked Confidential at its head from the defendant’s solicitors to their client and which had been erroneously sent to the plaintiff’s solicitors and which error was obvious to be an error. In all the circumstances it is proper to order that the costs of the defendant reserved by Coldrey J on 12 May 2003 be paid by the plaintiff.
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