Giacci v Piercey
[2016] WADC 39
•18 MARCH 2016
GIACCI -v- PIERCEY [2016] WADC 39
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 39 | |
| Case No: | BUN APP:1/2015 | ON THE PAPERS | |
| Coram: | BOWDEN DCJ | 18/03/16 | |
| BUNBURY | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in respect of grounds 2 and 3 | ||
| PDF Version |
| Parties: | MARIO GIACCI ROBERT PIERCEY |
Catchwords: | Appeal from magistrate dismissing application for further discovery Adequacy of reasons Party's obligation in respect of discoverable documents when discoverable documents in possession of liquidator |
Legislation: | Magistrates Court Act 2004 (WA) Magistrates Court (Civil Proceedings) Act 2014 (WA) District Court Rules 2005 (WA) |
Case References: | Allesch v Maunz [2000] HCA 40 B v B [1979] 1 All ER 801 Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402 Director of Public Prosecutions (NSW) v Mathews-Hunter (2014) 242 A Crim R 319; [2014] NSWSC 843 Director of Public Prosecutions (NSW) v Sadler [2013] NSWC 718 Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 Fudlovski v JGC Accounting & Financial Services Pty Ltd (No 4) [2014] WASC 33 Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99 Kelbush Pty Ltd v Australia and New Zealand Banking Group Limited [2016] WASCA 14 Lonrho Ltd Pty Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 Mineral Crushing Services (WA) Pty Ltd v Edna May Operations Pty Ltd [2016] WASC 57 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 Naidoo v Naidoo [2005] WADC 41 Rochfort v Trade Practices Commission [1983] 57 ALJR 31 Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252 Shilkin v Taylor [2011] WASCA 255 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 249 Taylor v Santos (No 2) (1998) 71 SASR 434 Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 Whitehead v Procopis (2005) 156 A Crim R 67 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ROBERT PIERCEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE HEANEY
File No : BUN GCLM 538 of 2014
Catchwords:
Appeal from magistrate dismissing application for further discovery - Adequacy of reasons - Party's obligation in respect of discoverable documents when discoverable documents in possession of liquidator
Legislation:
Magistrates Court Act 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2014 (WA)
District Court Rules 2005 (WA)
Result:
Appeal allowed in respect of grounds 2 and 3
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Max Owens & Co
Respondent : Lane Buck & Higgins
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40
B v B [1979] 1 All ER 801
Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402
Director of Public Prosecutions (NSW) v Mathews-Hunter (2014) 242 A Crim R 319; [2014] NSWSC 843
Director of Public Prosecutions (NSW) v Sadler [2013] NSWC 718
Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58
Fudlovski v JGC Accounting & Financial Services Pty Ltd (No 4) [2014] WASC 33
Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99
Kelbush Pty Ltd v Australia and New Zealand Banking Group Limited [2016] WASCA 14
Lonrho Ltd Pty Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627
Mineral Crushing Services (WA) Pty Ltd v Edna May Operations Pty Ltd [2016] WASC 57
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Naidoo v Naidoo [2005] WADC 41
Rochfort v Trade Practices Commission [1983] 57 ALJR 31
Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252
Shilkin v Taylor [2011] WASCA 255
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 249
Taylor v Santos (No 2) (1998) 71 SASR 434
Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218
Whitehead v Procopis (2005) 156 A Crim R 67
- BOWDEN DCJ:
Introduction
1 The appellant claims against the respondent approximately $41,000 damages for negligence, misrepresentation and breaches of the Competition and Consumers Act 2010 (Cth) and Fair Trading Act 1987(WA).
2 In very general terms this dispute arises as a result of difficulties with a water filtration system installed in a new bore on the appellant's property. The appellant says this is because the filter installed in the new bore is inadequate for the purposes for which it was installed.
3 The applicant claims the contract for the water filtration system was entered into with the respondent (par 1, statement of general procedure claim) or alternatively with Pure Water Corporation (Aust) Pty Ltd (par 10). The respondent was a director of that company which went into liquidation before these proceedings were commenced.
4 The respondent says any contract was with Pure Water Corporation (Aust) Pty Ltd and not with him, and in any event, says the applicant told him that the water quality in the new bore was the same as in the original bore when in fact the iron levels appearing in the water extracted from the new bore are at an unacceptably high level. The respondent says the filter works perfectly, but the water quality in the new bore is so poor that it is clogging the filter.
The original application
5 By application dated 19 August 2015 the applicant sought orders that the respondent provide further discovery and in particular that the respondent:
1. Disclose all water sample analysis.
2. Disclose all documents taken by the liquidator.
3. Properly complete the second schedule of his list of documents.
6 At the hearing before the learned magistrate on 9 September 2015 the issues narrowed to the applicant seeking an order that the respondent disclose in his discovery the documents that had been in his custody prior to the company's liquidation but which were no longer in his custody because they had been seized by the company liquidator.
7 The applicant accepted that the disclosure may have to be in general terms because as the respondent no longer has the documents and could not therefore describe them by dates or description. However, he said there was an obligation on the respondent to disclose, as best he could, the documents previously in his possession, custody or power even by the use of such general descriptions as 'the bundle of water analysis results' or 'test results made at about March 2012'.
8 The respondent argued that the documents sought were never in his possession, custody or power. He said that even though the respondent was a shareholder and director of the liquidated company Pure Water Corporation (Aust) Pty Ltd, the documents belonged to the company and were never in his possession, custody or power.
9 Further, the respondent said that in any event all the company's documents were taken by the liquidator two years before this action was commenced and he did not know the description of the documents taken nor exactly what documents were taken.
The orders made
10 His honour ordered that the application be dismissed with costs to be taxed.
The appeal
11 This appeal is by way of a rehearing (Magistrates Court (Civil Proceedings) Act 2004 (WA) s 50) (MCCPA) thus it proceeds by way of a 'reconsideration of the evidence' that was before the Magistrates Court: District Court Rules 2005 (WA) r 50(1) (DCR).
12 The court has the discretion to grant leave to admit additional evidence: MCCPA s 40(4)(5); DCR r 50(2), r 50(3), s 40(4). However, leave may only be given in 'exceptional circumstances': Shenton v Touchstone Farms Pty Ltd [2015] WASCA 252.
13 To succeed the appellant must demonstrate a legal, factual or discretionary error by the magistrate: Allesch v Maunz [2000] HCA 40 [23].
14 If such an error has been made the appellate court may substitute its decision for the magistrate based on the material before the magistrate. If no error is shown, the appeal court cannot intervene.
The grounds of appeal
15 The appellant's three grounds of appeal are:
1. The magistrate erred in law in giving no reasons or inadequate reasons for decision.
2. The magistrate erred in law in not ordering the defendant to disclose water analysis, there being no dispute that they had been brought into existence, were relevant and been in the defendant's possession, custody or power.
3. The magistrate erred in law in not ordering the defendant to properly complete the second schedule of his list of documents dated 22 July 2015, there had been no dispute the defendant had relevant documents which at some stage had been seized by a liquidator.
The application to adduce additional evidence
16 The appellant seeks to adduce additional evidence by way of an affidavit sworn on 11 November 2015 from Mr Owens, solicitor for the appellant.
17 That affidavit annexes 10 emails or letters between the solicitors for the appellant and the solicitors for the respondent and one letter from the respondent to Mr Dodd, a chemist, who apparently took the water samples.
18 Each of these documents is dated between 10 September 2015 and 27 October 2015 and are communications occurring after the hearing before the learned magistrate.
19 The respondent opposes leave being given, but says if leave is given he should be granted leave to adduce additional evidence by way of the affidavit of Mr Dennis Beere, the respondent's solicitor, of 24 November 2015.
20 That affidavit annexes a further affidavit of discovery from the respondent dated 28 October 2015.
21 The further affidavit of discovery discloses in the first schedule, inter alia, some photographs of hoses used on all PWC filters, the respondent's 2012 diaries and two water sample analyses ordered by the respondent in relation to the bores, which he deposes, he did not have at the time of swearing the original affidavit of discovery but has subsequently obtained.
22 The respondent also deposes to his belief that the liquidator does not have any documents relative to the dispute but says he cannot be certain as all of the company documents were seized by the liquidator some time ago. He says he cannot obtain a list of documents from the liquidator because of costs involved ($1,000 - $2,000). The affidavit also annexes a letter from the liquidator who states he is willing to make those documents available for the respondent's inspection and will undertake a detailed review of the types of document requested, provided his fees are met.
Should the two affidavits be admitted in the appeal?
23 A heavy onus lies on an appellant who seeks to introduce new evidence on an appeal.
24 It will normally be incumbent upon them to provide an explanation as to why the evidence was not led at first instance. Ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led in the court below. That is, because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made in the court below: Shilkin v Taylor [2011] WASCA 255 [66] - [70].
25 It is not helpful to attempt to describe what would constitute 'exceptional circumstances'. The variety of circumstances that might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose: Shilkin v Taylor.
26 Leave to admit additional evidence should not be used to rectify perceived weaknesses in a case already presented: Naidoo v Naidoo [2005] WADC 41 [9] (Eaton DCJ).
27 Both affidavits and their annexures deal with events subsequent to the learned magistrate's decision and no exceptional circumstances have been made out as to why they should now be admitted on the appeal.
28 I dismiss both applications to admit additional evidence.
Ground 1 - The magistrate erred in law in giving no reasons or inadequate reasons for decision
29 Section 31 of the Magistrates Court Act 2004 (WA) provides as follows:
31. Judgments, content of
(1) The Court's reasons for a judgment in a case -
(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
31 However, a failure to give adequate reasons does not necessarily mean that the matters should be remitted back to the Magistrates Court. This court can reach its own conclusions as to whether the orders made at first instance were justified. It is open to this court to conclude there is no point in sending the matter back, thus avoiding further costs for both parties and waste of further time: Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 [41]; Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 [29]; Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99.
32 The reasons for decision must be sufficient to give effect to any right of appeal and the basis for the decision must be apparent as otherwise the losing party cannot know whether there has been a mistake of law or fact: Mount Lawley Pty Ltd v Western Australia Planning Commission (283).
33 It is recognised that full or detailed statement of reasons is not practical in every case in the Magistrates Court. The imposition of such a requirement would cause delays in the administration of justice. The reasons need not be lengthy or elaborate, nor need they refer to all of the evidence led in the proceedings. The reasons may be stated shortly without being developed in any detail. Relevant evidence should be referred to, albeit not necessarily in detail, and where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred. The relevant findings of fact should be set out and the reasons must disclose adequately the intellectual process which has resulted in a particular determination: Whitehead v Procopis (2005) 156 A Crim R 67; Mount Lawley Pty Ltd v Western Australia Planning Commission (283).
34 It is not necessary to make explicit findings on every disputed aspect of the evidence if such findings can be inferred. The judicial obligation at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusion reached concerning disputed facts or questions and to list the findings on the principal contended issues: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 249, 258 (Kirby J).
35 However, a magistrate's obligations to give reasons must be considered in light of the MCCPA s 13 which provides:
Court's duties in dealing with cases and making rules
(1) In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2) Ensuring that cases are dealt with justly includes ensuring —
(a) that cases are dealt with efficiently, economically and expeditiously; and
(b) so far as is practicable, that the parties are on an equal footing; and
(c) that the Court's judicial and administrative resources are used as efficiently as possible.
37 In this regard higher jurisdictions consider the principles of proportionality referred to in Kelbush Pty Ltd v Australia and New Zealand Banking Group Limited [2016] WASCA 14 which requires the time, cost and resources expended by the parties and by the court to be proportionate to the forensic significance of the issue raised by the application. Whilst I appreciate that the chief justice was dealing specifically with O 1 r 4B and O 26A of the Rules of the Supreme Court 1971, neither of which apply in this case, the principle of ensuring that the time, cost and resources expended by the parties and by the court is proportionate to the forensic significance of the issue raised is effectively embodied by s 13(2)(a) and s 13(2)(c) of the MCCPA.
38 The obligation to give reasons must also be considered in light of the comments and discussions occurring immediately before the decisions was handed down. The rationale behind the obligation to give reasons is that the losing party knows the reason he lost so he can then decide whether there was a mistake of law or fact from which he can appeal.
39 It is generally unsatisfactory that an appeal court should have to analyse the exchange between competing counsel during submissions in an attempt to ascertain a magistrate's reasons: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402 [18]; Director of Public Prosecutions (NSW) v Sadler [2013] NSWC 718 [77] – [88]; Director of Public Prosecutions (NSW) v Mathews-Hunter (2014) 242 A Crim R 319; [2014] NSWSC 843.
40 However, it is also accepted that allowances should be made for the circumstances in which extempore reasons are delivered and the pressure which magistrates are under as a result of the volume of cases coming before them: Director of Public Prosecutions (NSW) v Mathews-Hunter [70] (Fullerton J).
41 I am not satisfied that his honour's reasons are inadequate amounting to an error of law. In this regard it cannot be said that the appellant does not know the reason for the decision being made against him.
42 It is obvious from a reading the transcript of proceedings that his honour took the view that documents could not be discovered because they were not now in the possession, custody or power of the respondent (ts 40), he did not know what documents were with the liquidator (ts 38) and would only be guessing if he gave a description or date of the document and therefore he was not obliged to discover them.
43 It would have been preferable if his honour had specifically spelt that out when he made his decision. His honour did not do so. However, it was a chambers matter, in a busy Magistrates Court involving a question of discovery and it is only a matter of reading the transcript to infer the basis of his honour's decision.
44 I do not consider in those circumstances that there was any failure of the magistrate to give adequate reasons. I dismiss ground 1.
Ground 2 - The magistrate erred in law in not ordering the defendant to disclose the water analysis
45 Pursuant to r 30 of the Magistrates Court (Civil Proceedings) Rule 2005 the court may order discovery of documents relevant to the case.
46 There is no reason why the test to be applied should not be the same test as in higher courts. The test is whether the court has reasonable grounds for being fairly certain that there are other documents relevant to the matters in issue which ought to have been disclosed: Fudlovski v JGC Accounting & Financial Services Pty Ltd (No 4) [2014] WASC 33 (Kenneth Martin J); Mineral Crushing Services (WA) Pty Ltd v Edna May Operations Pty Ltd [2016] WASC 57 [9] (Martino J).
47 The matters in issue are to be determined by reference to the pleadings and every document relates to a matter 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 either directly or indirectly enable the other party to advance its own case or to damage the case of the other party: Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218 [3] - [8] (Murphy JA); Mineral Crushing Services (WA) Pty Ltd v Edna May Operations Pty Ltd [2016] WASC 57 (Martino J).
48 Documents relating to the water samples are clearly documents relating to matters in question.
49 The respondent's affidavit of discovery of 22 July 2015 states:
Form 36
…
3. The defendant has had, but has not now, in his possession, custody or power the documents relating to the matter in question in this case listed in the second schedule.
4. The documents in the second schedule, were last in the defendant's possession, custody or power on the date set out in that schedule.
5. Neither the defendant nor his solicitor nor any other person on his behalf has now or ever had, in his possession, custody or power any document of any description whatever relating to any matters in question in this case other than the documents listed in the first and second schedules.
50 The respondent provided a list of documents for the first schedule but in relation to the second schedule stated:
Originals of copy letters and copy documents referred to in part 1 of the first schedule at present in the possession of those to whom they were sent.
51 It was not sufficient for the respondent to say that the contract was with the company and therefore the water sample documents were the company's documents and he did not need to disclose them. The respondent's affidavit of 19 November 2014 and his statement of intended evidence of a witness filed on 31 July 2015 discloses that he was a director of the company.
52 At page 32 of the transcript his honour said:
... Mr Owens must be saying that there are water sample analysis documents' to which the respondents counsel replied 'we are not disputing that but we don't have them and they are not within our power'.
53 This is an admission that such documents exist.
54 Further, Mr Owens' affidavit of 18 August 2015 which was before the learned magistrate included a letter sent to the respondent referring to the latter's affidavit (in the application to set aside default judgment) whereby the respondent stated that a decision to install the filter was based solely on the water sample and its analysis at the time it was taken.
55 The respondent must have had the water sample documents in his possession, custody or power either in his own right or as agent or director of the company. No other inference is available.
56 Where documents are or have been in the possession, custody or power of a party, even though he only holds or held them as a servant or agent of a company or in his capacity as an officer of a company, they must be disclosed if they are relevant: B v B [1979] 1 All ER 801; Rochfort v Trade Practices Commission [1983] 57 ALJR 31 [32] - [33], [34] - [35], [36]; In the Marriage of Barro [No 2] (1983) 47 ALR 338 [5].
57 The second schedule of the affidavit of discovery obliges the respondent to disclose the documents he had in his possession, custody or power and when they were last in his possession, custody or power. That was not done.
58 In light of that material referred to, his honour, with respect, ought to have been fairly certain that there are other relevant documents which ought to be have been disclosed and the respondent's affidavit of discovery should have included those water sample analysis. The water sample test was clearly relevant. The central issue at trial is whether the water quality was causing the filter to block or whether the filter was not fit for the purpose for which it was installed.
59 I accept the documents were not in the respondent's possession, custody or power at the time of swearing the affidavit of discovery because he did not have a presently enforceable right to inspect the documents as they were in the possession of the liquidator. However, they had been in his possession, custody and power before the liquidation either in his own right or as agent or director of the company and they ought to have been discovered.
60 If the respondent was unable to describe the documents he was still required to disclose in the second schedule that there were documents which had previously been in his possession, custody or power which were now in the possession of the liquidator and state he was unable to describe those documents by date or detail.
61 His honour erred in law in not ordering discovery of the water sample analysis. I find ground 2 made out.
Ground 3 - The magistrate erred in law in not ordering the defendant to properly complete the second schedule of his listed documents dated 22 July 2015, there had been no dispute the defendant had relevant documents which at some stage had been seized by a liquidator
62 In this regard possession is widely accepted as meaning corporeal possession but it is not necessary that the holder of the document should have any propriety interest in the document. The corporeal possession by an agent of a party of a document on behalf of the party is a possession of the party for the purposes of discovery. A director of a company who has in his or her physical possession documents of the company has custody of them: LexisNexis, Discovery and Interrogatories Australia (53-09-15) [9165].
63 Custody means the actual physical or corporeal holding of a document regardless of the right to its possession. A document prepared for or on behalf of a party and signed by that party is at the time of signing the custody of that party. A director of a company who had in his physical possession documents of the company had custody of them within the meaning of the rule: LexisNexis, Discovery and Interrogatories Australia (53-09-15) [9167].
64 A document is within the power of the party if the party has a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anybody else. It has been suggested that provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power: Lonrho Ltd Pty Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627, 635.
65 In Taylor v Santos (No 2) (1998) 71 SASR 434, Doyle CJ expressed the view that the obligation to discover a document is limited to a document that the person in question has the legal power or actual and immediate ability to inspect even though the document is the property or is held by another person: Reed [23]. However, where the right of a person to inspect documents depends upon the exercise of the discretion of the third party, then the documents are not within the power of the person for the purpose of the rule: Reed [24] (Le Miere J).
66 The respondent's case is that the contract was entered into between the appellant and the company. In those circumstances his honour had reasonable grounds for being fairly certain that there were other documents relevant to the matters in issue (the contract and contractual documents) which ought to have been disclosed. Even if the documents were no longer in the respondent's possession, custody or power, if he had previously held them as a servant or agent of the company or as a director of the company they must be disclosed.
67 The respondent's affidavit of 19 November 2014 and his statement of intended evidence as a witness establish that not only was the respondent a director of the company but he was the one involved in providing the quotes and other documents to the appellant and dealing with this particular transaction. I infer from this that, documents even if they were held by him as a director of a company, relevant to the facts in issue in this case were in his possession, custody or power at one stage and those documents should have been disclosed.
68 If he was unable to specify or describe those documents because they were with the liquidator, he needed to disclose that fact in the second schedule of the affidavit, similarly, if he was unable to recall whether there were other relevant documents because the liquidator had the documents and he had not been able to inspect them and determine their relevance, he was required to state that in the second schedule.
69 The discovery obligation does impose duties on the respondent. A party obliged to make discovery should search diligently to identify all discoverable documents in, or which had been in, the party's possession, custody or power. What are reasonable inquiries will depend on the circumstance of each case including the necessity for the discovery. It is not necessary to go to such lengths as would be oppressive: Re McGorm; Ex parte Cooperative Building Society of South Australia (1989) 20 FCR 387; (1989) 85 ALR 275; Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282; Reed v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2010] WASC 14 [10] (Le Miere J).
70 If the respondent is unable to say whether there are relevant documents in the liquidator's possession because of his poor recollection and his inability to inspect the documents, he needs to disclose those facts in the second schedule. His obligation of discovery at the very least, extend that far. The mere fact that the respondent could not itemise or describe the documents did not relieve him from the obligation of disclosing the whereabouts and existence of the documents. He cannot circumvent discovery by saying I cannot recall if there are relevant documents due to the lapse of time and my inability to inspect the documents because they are in the possession of the liquidator.
71 The appellant is not engaged in a fishing expedition. The respondent is trying to have it both ways. He discovers some documents that he says were company documents in the first schedule, then says he does not need to discover any other company documents in the second schedule as he was just a director and the documents are no longer in his power as the liquidator has them. Further, he says that he does not think any documents in the liquidator's possession are relevant but cannot say because he has not inspected them.
72 His honour was correct to say that there was no primary obligation on the respondent to go and get the documents (ts 39). The respondent would not in the circumstance of this case be required to pay the liquidator to examine the documents and prepare a list of relevant documents or go to the liquidator, inspect the documents and prepare a list himself.
73 The respondent should have disclosed in the second schedule the company documents which had been in his possession, custody or power were with the liquidator and he was unable to recall whether some or all of those documents were relevant due to the lapse of time and as he had not been able to inspect the documents to determine their relevance.
74 I find ground 3 made out.
75 I will hear from the parties as to the formal orders to be made.
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