Garrett v Mildara Blass Ltd; Attorney-General for the State of SOUTH Australia v Garrett - [2007] SASC 407

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GARRETT & ANOR v MILDARA BLASS LTD & ORS; ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v GARRETT
[2007] SASC 407
Judgment of The Honourable Justice Layton
16 November 2007
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - GENERALLY
Application for discovery of documents – discovery sought in relation to application to set aside and re-open a consent judgment – whether documents sought were directly relevant to the issues for determination.
Held: the documents sought for discovery were not directly relevant to the issues for determination – the categories of documents sought were too broad and general – the discovery process was sought to be used as a “fishing expedition” and would be oppressive – application dismissed.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - JOINDER OF PARTIES
Application for leave to file and serve an application for joinder of parties – also an application that an affidavit previously struck from file be reinstated – whether proper basis for granting application.
Held: no proper basis for granting application – application sought to inappropriately add parties which were surplus to the issues for determination and to institute a separate cause of action against a new party – application dismissed.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
Two actions listed for hearing concurrently – procedural directions given as to the order in which the actions would be heard, with related orders as to evidence and submissions.
Supreme Court Act 1935 (SA) s 39; Supreme Court (Civil) Rules 2006 r 53, r 136(1)(a), r 282, r 282(1)(b); Trade Practices Act 1974 (Cth) s 52, s 53, referred to.
Lewandowski & Ors v Lovell [2006] WASCA 54, considered.

GARRETT & ANOR v MILDARA BLASS LTD & ORS; ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v GARRETT
[2007] SASC 407
LAYTON J:
Introduction

On 1 November 2007 I dealt with a number of applications made by Mr Garrett, being:
(1)An application for permission to appeal against a direction given by me on 18 October 2007;
(2)An oral application for permission to appeal against a direction given by me on 30 October 2007;
(3)An application for discovery of documents filed on 19 October 2007; and
(4)An application for leave to file and serve an application for joinder of parties filed on 19 October 2007.
In addition, I heard submissions from all parties as to the procedural directions which should be given as to the hearing of Action No 2244 of 1996 and Action No 1342 of 2007.
After hearing submissions, I referred application (1) above for determination by the appellate court pursuant to Rule 282(2)(b) of the Supreme Court (Civil) Rules 2006. Mr Garrett abandoned application (2) after agreeing that the rejected document was incorrectly submitted for filing under Action No 127 of 2004 instead of Action No 1342 of 2007. In relation to applications (3) and (4), I reserved my decision. I also reserved my decision in relation to the procedural directions which should be given as to the hearing of both matters.
I will now give the reasons for decision with regard to application (1) as well as my decision and reasons on applications (3) and (4).
Permission to appeal against direction given on 18 October 2007
On 18 October 2007, I directed pursuant to Rule 53(4) of the Supreme Court (Civil) Rules 2006 that the application (FDN48) and the affidavit (FDN49) filed by Mr Garrett on 17 October 2007, constituted an abuse of the Court’s process within the meaning of Rule 53(1) and that the documents be struck from the file. My reasons for decision which were provided on 18 October 2007 are set out in a document so headed. In addition, I made further orders, namely:
1.I extend time for Mr Garrett to file an application for discovery limited to those matters contained in paragraphs 1 and 2 of his application filed on 17 October 2007.
2.I extend time for Mr Garrett to file an affidavit of no more than 3 pages with no annexures or exhibits, such affidavit to set out the reasons sought for the discovery sought in the application.
3.I direct that a copy of this direction, order and reasons, be sent to all parties.
Subsequently, in a document filed on 19 October 2007 (FDN52), Mr Garrett sought permission to appeal against that direction. I heard submissions from Mr Garrett. After consideration I ordered that his application be referred for determination by the appellate court pursuant to Rule 282(2)(b). My reasons for so doing are those set out in my reasons for decision given on 18 October 2007 and no further submissions made by Mr Garrett suggested that permission to appeal should be granted.
Application for discovery
The application for discovery by Mr Garrett sought the following orders:
1.That an order is made that the 1^st Defendant provide discovery of all written, notes of conversations or electronic materials in respect of;
a.The performance of the Andrew Garrett, Garrett, Garrett Family or any related brands by Price and volume in the MBL Territories as defined in the Deed of Settlement dated 26^th July 2000 in the period between January 1997 until today’s date including all sales through Cellarmasters or any other Direct Marketing Company.
b.That the discovery set out in 1(a) above include any related point of sale, respective marketing budgets, plans, reviews, history of Wine Show entries in Australia & Abroad, and surveys undertaken by the 1^st Defendant related to the Brands set out in 1(a).
c.That the discovery show any review of Brand position within the Fosters Wine Estates Portfolio and any impact on the Brands related to;
i.The acquisition of Rothbury Estate Group.
ii.Southcorp Group.
iii.Any other acquisitions by Fosters Wine Estates within the MBL Territories.
d.That the discovery show the performance of other Brands of similar price positions manufactured and distributed by Fosters Wine Estates as well as the region of sourcing of material and the history of Show entries in Australia & Abroad.
e.That the Discovery show the performance of Wolf Blass Wines and related brands (referred to at point 7 of exhibit AMG 15 of my affidavit dated 17^th October 2007) during the period from January 19^th 1995 until today’s date by Price and volume in the MBL Territories as defined in the Deed of Settlement dated 26^th July 2000 in the period between January 1997 until today’s date including all sales through Cellarmasters or any other Direct Marketing Company.
f.That the Discovery show any communications between the 1^st Plaintiff (Peter Ivan Macks) or his counsel and the 3^rd Defendant by Counterclaim (Stephen James Duncan) or his Counsel with the 1^st Defendant or its legal representatives.
g.Minutes of any meeting [of] involving either the management or the Board of Directors with regard to Andrew Garrett related brands between the date of filing the certificate of readiness for trial in this action and today’s date.
2.That an order is made that the 1^st Defendant by Counterclaim and the 4^th Defendant by Counterclaim provide discovery of all written, notes of conversations or electronic materials in respect of their dealings with the Intellectual property as defined within exhibit AMG 4 of my affidavit of today’s date.
a.That the discovery include any offers made to 3^rd parties to acquire the assets and undertakings of the 1^st Defendant by Counterclaim and the 4^th Defendant by Counterclaim.
b.That the discovery include the Branded wine sale agreement to Cockatoo Ridge referred to in exhibit AMG 6 of my affidavit of today’s date.
c.That the discovery include any minutes of meetings, notes of conversations, communications with 3^rd parties of the management or Board of Directors of the 1^st Defendant by Counterclaim and the 4^th Defendant by Counterclaim from April 2003 until today’s date and especially those in respect of the equitable interests of the 2^nd Plaintiff and related parties.
The grounds upon which he sought the discovery purport to be set out in his affidavit also filed on 19 October 2007 and were expressed in the following way:
1.I refer to all previous affidavit material filed in this action in support of my capacity to bringing this application as the 2^nd Plaintiff.
2.A certificate of readiness for trail[sic] has already been filed in this action by Finlayson’s Solicitors on behalf of my behalf as it related to;
i.List of Documents filed by the 1^st Defendant, Plaintiff by Counterclaim dated 14^th August 1996 (FDN 13)
ii.Suplementary[sic] List of Documents evidenced by the 1^st Defendant as PDT-3 in the affidavit of Peter David Thomas dated 4^th June 1999 (FDN 21)
iii.List of Documents filed by the Plaintiffs and 1^st & 4^th Defendants by Counterclaim dated 29^th September 1997 (FDN 14)
iv.List of Documents filed by the 1^st Defendant dated 23^rd April 1999 evidenced in my affidavit dated 27^th April 1999 (FDN 20)
3.I do not hold the file that was paid for by me that was generated by Finlaysons.
4.There has been no Further discovery of the parties since;
i.The dates of filing of Lists of Documents
ii.The dates of evidencing Supplementary Lists of Documents (but not filed) the dates of filing of the certificate of readiness for trial or
iii.the consent orders dated 20^th August 2000
A number of issues with regard to discovery emerged in the course of submissions.
Mr Roberts, who appeared for the first defendant, made the following submissions: First, that the substance of the application made by Mr Garrett in his capacity as trustee of the Garrett Family Trust (the second plaintiff) in FDN37, namely “Notice for Specific Directions ‘Application to re-open’” was an interlocutory application, and that discovery in an interlocutory application was inappropriate.
Second, that the application to re-open to set aside a judgment was incompetent because the judgment was one made by consent and based on a Deed of Settlement dated 26 July 2000 (“the Deed”), which was a contract. It was submitted that a judgment could not be re-opened and set aside unless Mr Garrett first instituted a separate action to set aside the Deed, and the Deed was set aside as being in some way void or invalid. He submitted that as no such an action had been instituted, then the Court could not re-open and set aside the judgment. In support of that submission, reliance was placed on the case of Lewandowski & Ors v Lovell.[1]
[1] [2006] WASCA 54.
Third, that the discovery sought by the second plaintiff in relation to sub‑clauses 1(a), (b), (c), (d) and (e) sought discovery of documents ranging over a period from January 1997, being a date some three years prior to the execution of the Deed and the entering of the consent judgment, up to the present time, being some eight years after both of those events.
Mr Tisato, who appeared for the first and fourth defendants by counterclaim, adopted the submissions made by Mr Roberts. Specifically, he submitted that none of the documents sought to be discovered were directly relevant to the matters in dispute, and that in any event, Mr Garrett does not have standing to bring the application. As to the question of standing, I indicated that this matter would await the hearing on the merits of the second plaintiff’s application to re-open and set aside the consent judgment.
In response to these arguments, Mr Garrett submitted that first, if this matter was inappropriately instituted as an interlocutory matter, then he would seek to convert his application for specific directions to a summons.
Second, he submitted that the application to re-open and set aside the judgment could not be distinguished from an application to set aside the Deed. In his words, “as I see it in order to set aside the Deed of Settlement I need to first reopen this matter because this Deed of Settlement refers to this action” and that the two were intertwined. Mr Garrett claimed that the Deed had been breached because monies had not been paid to him in accordance with clause 9 and there was a failure to apply best endeavours contrary to clause 19.
Third, Mr Garrett submitted that the documents he sought to be discovered were, in his submission, “inextricably intertwined” with the reasons he sought to set aside the Deed.
Fourth, he submitted that discovery was relevant to the “intention” of the parties both before and at the time of the execution of the Deed and that there was “misrepresentation, breaches of ss 52 and 53 of the Trade Practices Act 1974 (Cth)” and that “therefore the Deed of Settlement should be set aside in its own right”.
In considering the submissions made by the parties, I note that discovery, or “disclosure” of documents, as it is now called under the new Rules, is required where the documents are “directly relevant to any issue raised in the pleadings”.[2]
[2] Supreme Court (Civil) Rules 2006 r 136(1)(a).
Referring to Mr Garrett’s last argument, there has been no claim made in the pleadings for a cause of action under the Trade Practices Act 1974 (Cth). The documents could not therefore be regarded as “directly relevant” to such a separate cause of action that is not pleaded.
In relation to Mr Garrett’s second and third arguments, the application for directions does not seek to “set aside” the Deed. Specifically, it claims in paragraph 2 that the Deed has been “breached” by the first defendant and, further, that it has been “terminated” by himself as the second plaintiff on 21 July 2006. This application still remains one of setting aside and re-opening the judgment for reasons of breach or termination of the Deed and is not “inextricably intertwined” with setting aside the Deed as Mr Garrett argued.
I now turn to consider the documents sought in the application. The documents sought are broad ranging. If I were to take the documents sought in paragraphs 1(a) and (b) as examples; the second plaintiff seeks to discover all written, notes of conversations or electronic materials with regard to:
·the “performance” of the brands of numerous entities, some of which are specified;
·documentation as to “all sales” through Cellarmasters or other direct marketing outlets;
·marketing budgets, plans and reviews undertaken by the first defendant related to the named brands;
·history of wine show entries, both in Australia and abroad, in relation to the brands; and
·all surveys undertaken by the first defendant relating to the brands.
The documents are sought in relation to a span of 11 years. Similarly, the documents sought in sub-paragraphs 1(c), (d), (e) and (g) are of a similar breadth.
In my view, these documents are not directly relevant to the fundamental issue of whether the second plaintiff is able to set aside and re-open the judgment for the reasons that he gives. At best, they could have some potential relevance, in so far as they may relate to remedies which may be sought if Mr Garrett was successful in his application to re-open and set aside the judgment solely based as it is on an alleged breach and subsequent termination of the Deed.
In addition, all of the documents sought to be discovered in sub-paragraphs 1(a) to (g) suffer from the common problem of being too broad and general. These factors, combined with their apparent irrelevance, suggest that the second plaintiff is using the discovery process as a “fishing expedition” and his application is oppressive.
Further, Mr Garrett’s affidavit filed on 19 October 2006 (FDN51), appears to provide reasons for the discovery application as being that the parties in the action have given no further discovery since a Certificate of Readiness was filed. Therefore, it seems to impliedly argue that discovery should continue on the basis of the matters sought to be litigated prior to settlement. Again, these documents may have potential relevance if, and only if, there is a re-opening and setting aside of the judgment.
I now turn to paragraph 2 of the application for discovery, which seeks an order against the first defendant and the fourth defendant by counterclaim. Again, it refers to a breadth of documentation, namely all written, notes of conversations or electronic materials in respect of the dealings of the first defendant and fourth defendant by counterclaim with respect to “intellectual property”, as that is defined in an exhibit AMG6 of an affidavit which was in fact not before me. Again, the category of documents is very general and lacks specificity. The documents sought in sub-paragraphs 2(a), (b) and (c) appear to relate back to issues which were the subject matter of the action when it was settled. In other words, the application seeks to resurrect matters which were the subject of litigation in the action and extend it in sub-paragraph 2(c) from April 2003 to the present time. The reasons, which I have given in relation to paragraph 1, are similarly applicable to the documents sought to be discovered in paragraph 2.
In addition, I note that the affidavit filed in support of the application for discovery refers to the Finlaysons file. This was not specifically sought in the application for discovery. Finlaysons is not a party to these proceedings. The application for discovery of the file is, in effect, an application against a non-party for possession of the Finlaysons file. Mr Garrett indicated that he has already had discovery of the documents in the Finlaysons file, as he said in his submissions, it was, however, “more convenient for him to have the file”. There is no basis for that application.
Finally, I turn to Mr Garrett’s argument that if he inappropriately instituted his application to re-open and set aside as an interlocutory matter, then I should treat his application for specific directions as a summons. Notwithstanding that I consider that this would be inappropriate in this case, in my view, the application for discovery would not succeed even if I adopted such an approach, for the reasons previously set out.
In summary, nothing has been put to me by the second plaintiff which persuades me that disclosure of the documents sought in the application has the appropriate direct relevance to the issues required to be determined in relation to the application to set aside and re-open a previous judgment of the Court.
Therefore, I dismiss the application for discovery.
Application dated 19 October 2007 for leave to file and serve application for joinder of parties
This application seeks the joinder of Andrew Morton Garrett in three different capacities, as well as Suntory Australia (FDN53). I agree with Mr Roberts’ submission that such an application does not alter whether or not Mr Garrett is able to persuade the Court that it should re-open and set aside a judgment. It may, however, affect his standing to seek the application that he has made in FDN53. Again, the issue of standing, in my view, is no different from that which would have to be addressed in the application as it stands where Mr Garrett is also seeking to take action as a trustee and are surplus to the application. The further addition of Suntory Australia appears to be instituting a separate cause of action. I therefore dismiss paragraph 1 of the application.

Notwithstanding its terminology, paragraph 3 seeks an additional order that the affidavit of Mr Garrett dated 17 October 2007 be reinstated on the court file as FDN49. As indicated, this affidavit was one which I struck from the court file pursuant to a direction given by me on 18 October 2007 and is to be the subject of the referral to the Full Court. I therefore dismiss that application as being redundant.
It consequently follows that the application headed “Application for leave to file & serve this application for joinder of parties” filed on 19 October 2007 is misconceived and must be dismissed.
Procedural orders as to the hearing
I heard submissions from the parties as to the way in which the two actions should proceed by way of hearing. I have had regard to the fact that in Action No 2244 of 1996 the application by the second plaintiff to re-open and set aside the judgment (FDN37) was filed on 3 May 2007. In that same action the first defendant seeks a declaration pursuant to s 39(1) of the Supreme Court Act 1935 (SA) (“the Act”) to prevent Mr Garrett from instituting in his own name or causing others to institute or being concerned whether directly or indirectly in the institution of any proceedings against the first defendant, or any related body corporate, employee, agent or advisor without the leave of this Honourable Court. In addition, the application seeks a permanent stay of these proceedings pursuant to s 39 of the Act and the inherent jurisdiction of this Court.
I also note that subsequently the Attorney-General has instituted Action No 1342 of 2007 seeking that Mr Garrett be declared a vexatious litigant pursuant to s 39 of the Act. The Attorney-General’s application is prospective in its operation and Mr Garrett’s application in Action No 2244 of 1996 would not be caught by this application. However, it is relevant to the first defendant’s application pursuant to s 39 of the Act in Action No 2244 of 1996, and more particularly, to the remedy sought, namely a stay of those proceedings pursuant to s 39 of the Act and the inherent jurisdiction of this Court.
My initial reaction was that both actions should be listed for hearing at the same time, but that as a matter of the procedure for the hearing, Mr Garrett’s application to re-open be heard first, followed by the Attorney-General’s application and thereafter the application by the first defendant in Action No 2244 of 1996 to have Mr Garrett declared a vexatious litigant and for the proceedings to be stayed. However, bearing in mind Mr Roberts’ submission that in making its application, the first defendant seeks to rely on evidence that is to be adduced by the Attorney-General in Action No 1342 of 2007, I consider it appropriate to make the directions which are set out hereafter.
Orders
For these reasons, I make the following orders and directions:
1The application for discovery (FDN50) filed on 19 October 2007 by the second plaintiff in Action No 2244 of 1996 be dismissed.
2The application headed “Application for leave to file & serve this application for joinder of parties” (FDN53) filed on 19 October 2007 by the second plaintiff in Action No 2244 of 1996 be dismissed.
3That the applications in Action No 2244 of 1996 be listed for hearing concurrently with Action No 1342 of 2007.
4That the actions be heard in the following order:
4.1that Action No 1342 of 2007 be heard both as to evidence and submissions.
4.2that the application by the first defendant in Action No 2244 of 1996 (FDN39) be heard both as to evidence and submissions;
4.3that the application by the second plaintiff in Action No 2244 of 1996 (FDN37) be heard both as to evidence and submissions.
5That, subject to relevance, the evidence and submissions made in Action No 1342 of 2007 be treated as evidence and submissions in the applications by the first defendant and second plaintiff in Action No 2244 of 1996.
6That, subject to relevance, the evidence adduced and submissions made in the applications by the first defendant and second plaintiff in Action No 2244 of 1996 be treated as evidence and submissions in Action No 1342 of 2007.