Fudlovski v JGC Accounting and Financial Services Pty Ltd [No 4]
[2014] WASC 33
•11 FEBRUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: FUDLOVSKI -v- JGC ACCOUNTING & FINANCIAL SERVICES PTY LTD [No 4] [2014] WASC 33
CORAM: KENNETH MARTIN J
HEARD: 10 DECEMBER 2013
DELIVERED : 11 FEBRUARY 2014
FILE NO/S: CIV 2239 of 2012
BETWEEN: NIKOLA FUDLOVSKI
First Plaintiff
ROSEMARY FUDLOVSKI
Second PlaintiffFUDLOVSKI INVESTMENTS PTY LTD
Third PlaintiffBLUECHIP ENTERPRISES PTY LTD
Fourth PlaintiffAND
JGC ACCOUNTING & FINANCIAL SERVICES PTY LTD
First DefendantJUSTIN GEORGE COPPIN
Second Defendant
Catchwords:
Practice and procedure - Discovery - Further and better discovery sought - Relevance - Pleadings - Commission plea - Asserted fiduciary relationships
Legislation:
Rules of the Supreme Court 1997 (WA), O 20 r 9
Result:
Application for further and better discovery allowed in part
Category: B
Representation:
Counsel:
First Plaintiff : Mr D H Solomon
Second Plaintiff : Mr D H Solomon
Third Plaintiff : Mr D H Solomon
Fourth Plaintiff : Mr D H Solomon
First Defendant : Mr T J Carmady
Second Defendant : Mr T J Carmady
Solicitors:
First Plaintiff : Solomon Brothers
Second Plaintiff : Solomon Brothers
Third Plaintiff : Solomon Brothers
Fourth Plaintiff : Solomon Brothers
First Defendant : Williams & Hughes
Second Defendant : Williams & Hughes
Case(s) referred to in judgment(s):
Barnes v Addy (1874) LR 9 Ch App 244
Beecham Group Ltd v Bristol‑Myers Co [1979] VR 273
Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 2] [2013] WASC 301
Jingellic Minerals NL v Abigroup Ltd (1992) WAR 566
Pilmer v Duke Group Ltd (in liq) [2001] HCA 31; (2001) CLR 165
Snelgrove v Great Southern Managers Australia Ltd (In Liq) (Receiver and Manager Appointed) [2010] WASC 51
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218
Whyte v Ahrens (1884) 26 Ch D 717
KENNETH MARTIN J: The plaintiffs apply for further and better discovery from the first and second defendants.
The documents, or classes of documents, in respect of which further and better discovery is sought are contained in the plaintiffs' minute of proposed categories of documents for further and better discovery, filed 11 October 2013.
I append as schedule 1 the list of 10 classes of further documents for which the plaintiffs press on this application.
The defendants resist the application. General discovery has already been provided by the defendants by a list of documents verified on oath by the second defendant. The affidavit of Justin George Coppin, sworn 10 June 2013, verifies a list of documents which is annexure A to that affidavit. Part 1A in the list identifies 278 different documents.
The defendants, on this application, agree to provide (effectively on a without prejudice basis) further documents concerning some seminars presented by SAS Global Ltd at the business premises of the first defendant, JGC Accounting and Financial Services Pty Ltd (JGC), as contained in class B of the plaintiffs' minute.
I divert to identify the materials relied upon by each side and to make some brief observations concerning the uncontroversial state of the law on further and better discovery applications.
Materials in support of application
The plaintiffs read a 359-page affidavit by Lisa Maree Retallack, a solicitor employed by the solicitors for the plaintiffs, sworn 11 October 2013. Attached to Ms Retallack's affidavit are an array of documents - mostly obtained by the plaintiffs through responses to their pre‑trial subpoenas to various respondents not party to these proceedings.
Resisting the application for further and better discovery, the defendants read a 43‑page affidavit of Justin George Coppin, sworn 22 November 2013.
Pursuant to programming directions for the application, the parties filed written submissions. I hold the plaintiffs' written submissions filed 11 October 2013 and the responsive written submissions of the defendants of 22 November 2013.
Additionally, at the hearing of the application, counsel for the plaintiffs handed up a table cross‑referenced to various pages of Ms Retallack's affidavit. This is a summary of the monthly fees rendered in relation to invoices issued by JGC to numerous SAS Global companies over time. The 3‑page summary calculates that in the period between December 2006 to June 2013 invoices in the aggregate amount of $1,310,764 were issued to various SAS Global corporations by JGC. The plaintiffs seek to make much of that upon their application.
Applicable law: Further and better discovery
The plaintiffs' application for further and better discovery is made either under the inherent jurisdiction of this court, or as an application for inspection of particular documents pursuant to the Rules of the Supreme Court 1971 (WA) O 26 r 9 (RSC). I refer in particular to RSC O 26 r 9(3):
An application under subrule (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that such documents are in the possession, custody or power of the other party and relate to a matter in question in the cause or matter.
Apart from formalities as required under RSC O 26 r 9(3), if an application for further and better discovery is pursued under the rules of the court or in the court's inherent jurisdiction, there is a well‑established dual threshold which any applicant for further and better discovery must surmount, in circumstances where (as has occurred here) general discovery has been provided by lists of documents verified by affidavit.
These days, general discovery is not the norm for CMC list matters. Ordinarily, I expect parties to confer and settle upon limited, fixed categories of documents to be discovered. Here, however, both sides from inception of the litigation have been content to proceed on the basis of giving general discovery. Perhaps unwisely, I countenanced that course.
The dual test an applicant for further and better discovery must surmount involves showing:
(a)it is 'fairly certain' that the pursued further documents, or a class of further documents, actually do exist in the possession of the party against whom the application is made; and
(b)the pursued additional documents are relevant to issues arising as between the parties in the action.
The relevance threshold under limb (b) is not measured at the admissibility standard applicable at a trial for a receipt into evidence of documentary materials. The interlocutory discovery threshold as to relevance is set at a more expansive 'line of enquiry' level. This manifests most directly to catch documents that would potentially either advance an applicant party's case at the trial or, alternatively, potentially do damage or undermine the opposition party's case at the trial. I refer generally to the second and fifth principles as explained by Murphy J in Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 [3] – [8]. The fifth principle there explained by his Honour was:
Where the insufficiency of a party's discovery appears from the party's pleadings, or its affidavit of documents, or the documents referred to therein, or any source constituting an admission by that party of a discoverable document, the test is whether the court has reasonable grounds for being fairly certain that there are other relevant documents which ought to have been disclosed.
The 'fairly certain' test is applicable both in respect of the court's inherent jurisdiction and in respect of RSC O 26 r 9. Murphy J referred to Beecham Group Ltd v Bristol‑Myers Co [1979] VR 273, 276, 278 - 279 and Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3].
Essentially then, the threshold the present plaintiffs need to surmount begins by them showing that the existence of a particular document in the hands of the defendants is 'fairly certain'. Next, if that is so, then by them advancing to show that such documents could be relevant to issues in dispute as between the parties.
Relevance in this context is always established by having reference to the content of the parties' pleadings (including particulars).
The above principles are long established. They were not at all in contention on this application as regards the state of the law.
The plaintiffs' amended statement of claim ('ASOC')
The present state of the pleadings sees an amended statement of claim ('ASOC') filed by the plaintiffs on 14 March 2013 and the substituted defence ('SD') of the defendants filed 1 November 2013.
Broadly speaking, it is apparent the plaintiffs claim to be aggrieved against the first and second defendants by reason of their allegedly unsuccessful investments made in the SAS Global group of companies and before the global financial crisis of October 2008. See more generally, the background referred to in Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 2] [2013] WASC 301.
It is apparent by the pleas made in the ASOC that the series of loss making investments as are complained of were made by the plaintiffs in SAS Global related entities on or about:
•1 August 2006 (ASOC par 12)
•4 December 2006 (ASOC par 17)
•March and June 2007 (ASOC par 21)
•19 March 2007 (ASOC par 23)
•August 2007 (ASOC par 28)
•November 2007 (ASOC par 33)
By the ASOC the plaintiffs attempt to invoke a number of different causes of action against the defendants.
Most relevantly to the present application, the plaintiffs pursue equitable compensation for their asserted financial losses based first upon a contended breach by the defendants of a fiduciary duty owed to SAS Global (or other companies in the SAS Global group): see ASOC par 38.
It is correlatively contended that JGC also owed each of the plaintiffs fiduciary duties not to prefer the interests of SAS Global, or other companies in the SAS Global group; further or alternatively, the first and second defendants, to the interests of the plaintiffs: see ASOC par 39.
The plaintiffs, by the ASOC, seek additionally to raise causes of action in damages by common law negligence and for alleged breach of contract.
By the ASOC it would appear that as against the second defendant, Mr Coppin, the Barnes v Addy cause of action for 'knowing assistance', and as well common law 'negligence' and 'misleading or deceptive conduct' as a statutory cause of action - are all sought to be invoked: see Barnes v Addy (1874) LR 9 Ch App 244.
By prayers for relief seen in the ASOC, the plaintiffs claim equitable compensation as one of the remedies in respect of their asserted financial losses, as against both defendants.
I will now set out par 35 of the ASOC by reason of its importance to the plaintiffs' arguments upon this application:
Causes of action against JGC
Breach of fiduciary duty – SAS Global Property Investments Advice and SAS Global Share Investments Advice
35.At all material times, JGC:
35.1was engaged by SAS Global and other companies comprised in the SAS Global group for reward as their accountant;
35.2was engaged by Anthony Beamish, a director of SAS Global and other companies comprised in the SAS Global group, for reward, as his accountant;
35.3received fees and/or commissions from SAS Global and/or other companies comprised in the SAS Global group. (my emphasis in bold)
The plaintiffs' arguments put to me at the hearing of their application for further and better discovery placed great significance upon par 35.3. In particular, an ostensibly benign phrase seen in par 35.3 'and/or commissions' is contended to carry great significance towards justifying the plaintiffs' present pursuit of additional documents - from a relevance of issues perspective – on the basis of an alleged breach of the fiduciary duty said to be owed by the defendants to the plaintiffs.
I refer as well to ASOC pars 41.6, 41.7, 41.8 and 41.9 and to the concluding words in par 49, 'JGC preferred … various interests including its own … to the plaintiffs' interests and breached its fiduciary duties to the plaintiffs pleaded in par 39 above'.
As regards specific categories of further and better discovery requested, in summary, a largely negative response by the defendants was received.
As to Class 1: regarding the documents sought as class 1, the stance of the defendants was not that this material was irrelevant. Rather, the response, in blunt terms, was that there were only two documents and both had already been discovered.
As to Class 2: the response was multifaceted. In the first place, the defendants said that, in accord with orthodox business record retention obligations and practice, they had only retained documents relating to their clients for periods after 1 July 2008. Accordingly, they respond that in fact there are now no documents in existence relating to any period prior to 1 July 2008. This was a plenary response not just to the category 2 request, but also to all other classes of further documents sought from periods earlier than 1 July 2008.
The defendants' denial that there were any documents in their possession from prior to 1 July 2008 was advised in a letter from their solicitors (Williams & Hughes) to the plaintiffs' solicitors, of 27 September 2013: see annexure JGC 1 to Mr Coppin's affidavit sworn for the purposes of this application on 22 November 2013. The communication by Williams & Hughes reads:
12.JGC's client files in relation to the SAS companies prior to 1 July 2008 have been destroyed. The only documents that may still exist in relation to the SAS companies prior to this date are where copy documents have been placed on other files. My clients have reviewed these files and the only documents relevant or potentially relevant to the matters in dispute in these proceedings will be discovered. I deal with this below.
As regards the above communication made by his solicitors, Mr Coppin says in his affidavit par 4, as read on this application:
Mr Carmady's email was written on my instructions and the facts set out in it are true.
During argument Mr Solomon, for the plaintiffs, called for a further verification upon oath by Mr Coppin as to that position. But, in my view, what has been provided to date is more than sufficient to verify and confirm the non‑existence of Class 1 documents prior to 1 July 2008 (other than those documents as are now already discovered). There is nothing to detract from the conclusiveness of Mr Coppin's affidavit verifying the list of documents earlier provided, as general discovery as regards Class 1.
The defendants' response also objects further to discovering Class 2 documents on a distinct basis that such documents are not relevant and, as well, that the overall volume of documentation sought is oppressive.
For the defendants, Mr Carmady submitted that there were, even for periods subsequent to 1 July 2008, currently 315 lever arch files (and roughly 400 pages per file) which would meet a description of client files, presently called for.
The breadth of the task is seen estimated in Mr Coppin's affidavit on the basis of 315 multiplied by approximately 400 pages in each file - to comprise about 126,000 pages of documents. Rendering that amount of material as amenable to discovery, even if a tenable line of enquiry could be established, is said to be marginal at best, in the context of a proper and proportionate allocation of resources, as required by O 1 r 4A RSC in the proper application of modern case management principles. These principles bear upon a discretion exercised by the court, in any event, as to whether or not to make an order under O 26 r 9.
It is not necessary to resolve the oppression argument. Objection was first taken on the ground that such material is, in any event, wholly irrelevant to issues presently arising upon the pleadings.
The last act of reliance as raised by the ASOC, in terms of the bad investment complained of and the ensuing economic loss and damage to the plaintiffs, was in November 2007. JGC client files for SAS Global companies for the period subsequent to 1 July 2008 look, prima facie, to have no relevance to the current pleaded issues.
It is at this point I must address an argument by the plaintiffs advanced by reference to the high asserted quantum of fee invoices as found in Ms Retallack's affidavit, in combination with their analysis as reflected in the summary of monthly invoices, to which I referred. The plaintiffs, as I understood this argument, would seek to contend that the true character of the subsisting relationship, as between JGS and the SAS Global group, was closer and went significantly beyond that of an orthodox accountant/client or tax adviser/client contractual relationship.
Mr Solomon first acknowledged a body of case authority as was collected in the plaintiffs' written submissions, culminating in the High Court's decision Pilmer v Duke Group Ltd (in liq) [2001] HCA 31; (2001) CLR 165. Pilmer v Duke confirms that client/accountant relationships without more have not been viewed to date under Australian law as one of the more traditional categories of business relationship that will give rise to the imposition of fiduciary obligations: see [133] (Kirby J). Mr Solomon's point was that he was pressing for the 'more', so as to meet the Pilmer v Duke standard, and so, to contend in the present case for the existence of a fiduciary relationship as between the SAS Global group of companies and the defendants.
Hence, the level of the fee invoices to SAS Global companies by JGC, as obtained on subpoena and collected in Ms Retallack's affidavit, then analysed by the summary, give rise, according to Mr Solomon, to a position that the defendants' true relationship with SAS Global entities arguably went much closer and deeper than just a bare accountant/client or tax adviser/client relationship. This was characterised by Mr Solomon as a relationship approaching the level of co-venturers - with JGC benefiting under arrangements which effectively saw it remunerated on a commission basis. Such arrangement, whilst implemented via the clothing of regular fee invoices was, on Mr Solomon's analysis of the collected invoices, a lot more, or at least arguably so.
Mr Solomon took me to a number of the fee invoices in Ms Retallack's affidavit, making a point repeatedly about the asserted small level of underlying accounting work - in return for what would appear, he said, to be disproportionately high fees. Mr Solomon also pointed to a very swift payment regime for these issued invoices of the defendants, with payment sometimes occurring the very day they were rendered: for instance, see page 258 of Ms Retallack's affidavit in respect of the tax invoice dated 21 February 2007 as rendered to SAS Global Mandurah Pty Ltd. This invoice appears to have been met the same day, in the amount of $11,050.
During submissions I pointed out to Mr Solomon that there appeared to be nothing observable in the ASOC suggesting that the remuneration arrangements as between JGS and the SAS Global companies ought to be viewed from a perspective of suspicion, as regards some sort of hidden co‑venture. At this point, Mr Solomon referred me to the pleaded phrase 'and/or commissions' as is seen in par 35.3. This plea was enough, Mr Solomon contended, to support the potential relevance of most of the documents he pressed for. This was because the documents would reveal the true character of the close relationship, as between JGS and the SAS Global group of companies, this being a legitimate area to be probed on the further and better discovery application.
Hence, it emerged that Ms Retallack's affidavit assembles much subpoenaed material with a view to undermining the SD - insofar as it pleaded on behalf of the defendants that the relationship as between the SAS Global group of companies and JGC and Mr Coppin was merely one of client and tax agent only.
At times the tenor of the plaintiffs' arguments appeared to be that Mr Coppin ought to be assessed as somebody of marginal credibility, as documents obtained by the plaintiffs on subpoena would be used to suggest that the true relationship was that of a commission arrangement. However, credibility assertions are a matter for another day, namely a trial.
The approach as manifested by the plaintiffs represents, in my view, a significant departure from orthodoxy, in terms of the proper prosecution of an application for further and better discovery. It is a departure from proving the well‑understood dual criteria of 'fair degree of certainty' as to the existence of a requested document and then showing the arguable relevance of the document by reference to issues arising upon the pleadings. An illustration of the plaintiffs' aberrant approach is seen in Ms Retallack's affidavit at par 13(a) in terms:
Whether the nature of JGC's relationship with the SAS Global companies and its arrangements and understandings with the SAS Global companies, were such that there was an expectation on the part of JGC that the relationship, arrangements and/or understandings would continue into the future to the benefit of JGC and Coppin;
A notion of documents obtained on pre‑trial subpoenas setting a foundation point for a further and better discovery application - rather than the pleadings providing the relevance touchstone ‑ is to my understanding, unprecedented. I will set out part of the transcript concerning interchanges with counsel upon this point. Tellingly, this unfolded during counsel's reply:
SOLOMON, MR: You have got a very happy client, this chap, your Honour. He renders accounts and they get paid the day of delivery. 13 February and 23 February. He renders two accounts for the month. Both paid on the date of the account. That's a fabulous relationship. But ‑ - -
KENNETH MARTIN J: But, I mean, you ‑ Mr Solomon you're inferring something sinister - - -
SOLOMON, MR: I am.
KENNETH MARTIN J: - - - I think.
SOLOMON, MR: I am.
KENNETH MARTIN J: But it's not pleaded.
SOLOMON, MR: It's not. At the moment that's evidence. I'm at a discovery stage.
KENNETH MARTIN J: No. With respect, I mean, it's trite law that the pleadings set the parameters - - -
SOLOMON, MR: That's right.
KENNETH MARTIN J: - - - for the discovery. Now, if you're implying something sinister - - -
SOLOMON, MR: I'm not.
KENNETH MARTIN J: - - - in terms of - - -
SOLOMON, MR: I am. I am implying payment of commissions. That's what I am implying. Payment of pleaded commissions.
KENNETH MARTIN J: In reply (ts 114 – 115).
Evaluation
The parameters of the apparent relevance test to be used in assessing an application for further and better discovery arise to be applied by reference to the state of the current pleadings. As presently formulated, a benign looking and well‑buried pleaded reference to 'and/or commission' in the ASOC (at par 35), by my assessment, gives no hint of the apparently far more sinister underlying contentions about a much closer relationship that is now sought to be probed by the documents sought on this application. In my view, the plaintiffs' approach put the cart before the horse!
I also uphold the temporal relevance objection as raised by the defendants. With the plaintiffs' last investment occurring in November 2007, there is no arguable basis to press for JGC's client file documents, held only as from 1 July 2008.
Accordingly, the classes of documents pressed for as Category 2 fall outside the parameters of a legitimate request and are refused.
Class 3
Class 3 seeks invoices issued by JGC to the SAS Global companies or any of them. During argument Mr Solomon offered to truncate the scope of this request to invoices not already obtained by the plaintiffs under third party subpoenas which the plaintiffs had issued.
However, the only subsisting invoices to SAS Global corporations upon the material before me relate to periods after 1 July 2008. Invoices issued in that period cannot, as a matter of relevance, bear upon issues currently sought to be advanced on the face of the present pleadings. This request must thereby be rejected as irrelevant in scope.
Class 4
This request was in relation to the primary accounting documentation of JGC, in respect of payments, as received from the SAS Global companies. Again, relevance and oppression objections are raised by the defendants, along with the plenary temporal objection that no such documents now exist, for the period prior to 1 July 2008. The defendants' contentions must be accepted.
For the same reasons as are articulated in respect of class 2 and 3 documents, this request must also be refused.
Class 5
This request seeks ledgers in respect of recordings of time made by JGC or Mr Coppin or other employees of JGC working on SAS Global matters. Objection is taken on the ground of complete irrelevance and, as well, by reason of the non‑existence of any documents at this time for periods prior to 1 July 2008.
For the same reasons in respect of classes 2, 3 and 4, the defendants' objections must be upheld. In argument Mr Solomon submitted that a pursuit of time records may enable better insights to be gained into JGC's fee invoices and the true levels of underlying work carried out in terms of hours worked. Fundamentally, however, such a suggested line of enquiry is, once again, not made relevant by the current state of the pleadings. There was some reliance placed by Mr Solomon upon two extra case authorities mentioned in oral submission in that respect, namely, Jingellic Minerals NL v Abigroup Ltd (1992) WAR 566 and a late 19th century decision that is referred to in that case, Whyte v Ahrens (1884) 26 Ch D 717. However, those cases do not assist. Jingellic saw the Full Court (Franklyn, Nicholson & Walsh JJ) resolve an argument concerning allegedly deficient particulars. The decision does not bear upon the present further and better discovery application. Whyte v Ahrens was referred to by Franklyn J in Jingellic Minerals in this context:
There is authority for the proposition that when one party knows the facts and the other does not, an insufficiently particularised allegation may be made in a statement of claim and the plaintiff be permitted to obtain discovery of documents and answers to interrogatories before providing the necessary particulars [570].
So much can be accepted, but it does not assist the present application.
Likewise, Whyte v Ahrens was not concerned with a further and better discovery application. The well settled principles governing such applications have been summarised at the commencement of these reasons.
Class 6
This request seeks financial statements prepared by JGC for the SAS Global companies. Documents prior to 1 July 2008 are said to have all been destroyed by the defendants.
In any event, it is difficult to see how any surviving financial statements or management accounts prepared for the 30 June 2009 accounting period or for periods subsequent could relevantly bear upon the pleaded issues arising in this action. Again the defendants' temporal irrelevance objection must be upheld.
Class 7
This request concerns documents in relation to a sale or provision by JGC of names and contact details of its clients to SAS Global Ltd.
The defendants' response to this request is that such material is wholly irrelevant, but also, that there are in fact no such documents.
By earlier email, annexed as JGC1 to Mr Coppin's affidavit, his solicitors advised the plaintiffs' solicitors (at par 10.7) as to this material:
Not relevant and, in any event, documents prior to 1 July 2008 have been destroyed.
I was advised during submissions on behalf of the defendants that there were no such documents.
The plaintiffs' application seeking this class of documents must also fail. First, an existence of such client list documents being sold or provided has not been established to my satisfaction as being 'fairly certain'. Second, to the extent that there were any documents in the period subsequent to 1 July 2008 they would, by the current state of the pleadings, be wholly irrelevant.
Class 8
These documents will be provided voluntarily by the defendants as regards the seminars presented at the business premises of JGC.
Class 9
This request concerns documents in respect of a 2008 Dowerin Field Day event including correspondence passing between SAS Global and JGC. It was said that there was a joint display exhibition tent set up at Dowerin for that year and that the costs of that rural promotion event were shared as between SAS Global Financial Planning Pty Ltd and JGC.
This category was painted as being relevant by counsel for the plaintiffs, as it might help shore up a closer proximity connection towards showing a fiduciary relationship. The difficulty is that this Dowerin event occurred well after November 2007, when the last loss making investment is pleaded as being made by the plaintiffs. Accordingly, the requested documents, in a temporal sense, would not bear upon the argued existence of a fiduciary relationship as between the defendants and SAS Global Financial Planning Pty Ltd during November 2007.
I uphold the objection of the defendants that any such documents as might exist concerning the 2008 Dowerin event would be irrelevant, substantially for reasons as previously given.
Class 10
This category relates to Mr Coppin's original diaries for the years 2006 to 2010. I was advised during argument that some extracts from Mr Coppin's diaries had already been provided. There had been certain redactions made as regards the 2006 and 2007 diaries where there was asserted confidential information at issue.
Counsel for the defendants told me what was proposed was that as regards what had been redacted from the 2006/2007 diaries, the plaintiffs' solicitors could come to view the unredacted materials as to the entry dates in the diary where extracts had been provided - in order to independently verify that what had been removed was indeed a legitimate excision. That proposal presents to me as reasonable. I would not contemplate any order for further and better discovery of any diary material until the inspection, as offered, has taken place.
I also uphold the objection that the totality of Mr Coppin's diaries for 2008, 2009 and 2010 present as irrelevant to matters currently at issue between these parties, bearing in mind that the last investment in respect of which the plaintiffs claim economic loss, was made in November 2007.
Conclusion
Save as indicated in respect of documents in classes 8 and 10, the application of the plaintiffs for further and better discovery orders must be refused. I should say that, in addition, Mr Solomon in closing referred me to a decision of Justice Le Miere in a 2010 WASC case called Snelgrove in the context of a strikeout application. I have since located Snelgrovev Great Southern Managers Australia Ltd (In Liq) (Receiver and Manager Appointed) [2010] WASC 51. On my assessment, it carries no relevance to the present application.
Schedule 1
1.All documents recording, referring to or concerning the appointment of the second defendant, Justin George Coppin ("Coppin"), as an authorised representative of SAS Global Limited.
2.Client files kept or maintained by the first defendant, JGC Accounting and Financial Services Pty Ltd ("JGC"), for the companies referred to in paragraph 29.1 of the Defence ("SAS Global Companies"), or any of them.
3.Invoices issued by JGC to the SAS Global Companies, or any of them.
4.Financial records and other documents (including, but not limited to, client file transaction ledgers, trial balances and general ledgers) which record payments to JGC by the SAS Global Companies, or any of them.
5.Time ledgers kept or maintained by JGC recording time spent by Coppin and other employees of JGC working on matters for the SAS Global Companies, or any of them.
6.Financial statement prepared by JGC for the SAS Global Companies, or any of them.
7.Documents concerning or in respect of or referring to the sale or provision by JGC (or by any person or company related to JGC) of the names and contact details for clients of JGC to SAS Global Limited (or to any person or company related to SAS Global Limited).
8.Documents concerning or in respect of or referring to all seminars presented by SAS Global Ltd (or by any person or company related to SAS Global Ltd) at the business premises of JGC, including but not limited to letters of invitation sent by JGC to clients of JGC to attend such seminars.
9.Documents concerning or in respect of or referring to the 2008 Dowerin Field Day, including but not limited to all correspondence between SAS Global Financial Planning Pty Ltd (including of its directors, officers, employees and agents) and JGC (including of its directors, officers, employees and agents) concerning or in respect of or referring to the 2008 Dowerin Field Day.
10.Coppin's original diaries for the years 2006 to 2010.
3
6
1