Glandore Pty Ltd v Elders Finance & Investment Co. Limited

[1985] FCA 376

IN THE FEDERAL COURT OF AUSTRALIA )

OUEENSLAND D I S T R I C T R E G I S T R Y ) QLD G 1 0 1 of 1984

. zi\b D I V I S I O N G E N E R h i )

BETWEZN :

GLAIJDORE PTY LTD

First Applicant

!

DAVID HENRY L E I T C H

Second Applicant l

. L

ALMA NARGARET L E I T C H

Third Appllcant

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GARY D A V I D L E I T C H

Fourth Appllcant

AND : I

ELDERS	FINANCE	AWD	INVESTMENT	CO.	LIMITED
Respondents i

MINUTES OF ORDER

J U D G E K K I N G ORDER:

DATE OF ORDER:

WHERE P n D E :

THE COURT ORDERS THAT:

1. By consent, the respondents do, withm

seven days from the date hereof, make and

file a further and better list of

documents relating to any matter in

question between the appllcants and the respondents together wlth an affidavit verifying that list.

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2.

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2. By consent, the respondents do, withln

seven days from the date hereof, make and

file an affidavit stating vhether any of

the classes or kinds of documencs set out

below are or have been In their

possession, custody or power. and, ~f any

such documents OK classes of documents

have been, but no longer are in their

possession, custody or power, when the

i	same was parted with and what has become
of any such document -

Minutes directors' of meeclngs

deflning, llmltlng or referrmg to

functions, the powers and/or

authorlty of the State Manager for

Queensland of the respondents, and

the Chlef Finance Executive for

Queensland of the r spondents

(howsoever described) .

Letters of appointment, Internal

memoranda or other documents of

whatsoever kind defining, llmitlng

or referring to the functions,

powers andlor authorlcy of the State

Manager for Queensland of the

respondents, and the Chief Finance

Executive for Queensland of the

respondents (howsoever described).

Minutes of directors' meetings

defining recording or referring to

lending the policy of the

respondents, changes any and

thereto, from on or about 1 January

1982 to in or about tine month of	\
September 1983.

statements, Policy internal

memoranda, letters or b ochures

deflnlng recording or referring to

lendlng the p011cy the of

respondents, and any changes thereto

during the period from 1 January

1982 to in or about the month of

September 1983.

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Minutes of directors' meetings or

meetings of committees of the

respondents during which any

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applicatlon for flnance or further :

finance by the flrst applicant was

discussed or considered during the

period from 1 January 1982 to In or

about the month of September 1983.

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I . . . 3 ,

(f)	Internal memoranda or other written communications passlng between the Brisbane offlce of the respondents and the office ad of the respondents in Melbourne durlng the
perlod from 1 November 1982 to 7

March 1983 dealing with or referring first applicant for an advance oc further advance of $500,000.00 from the respondents.

(g)	Mlnutes of directors' meetmgs,
internal memoranda, telexes and
other correspondence or writings

passing between the Brlsbane office

of the respondents and the head

offlce of the respondents in

Melbourne deallnq wlth or referring

m any [lay to the termlnation of the

employment wiLh the respondents of

one McCluskey. I

(h) Letters or other written means of

communication passing between the

respondents and their solicltors

dealing with or referring in any way

to the terminatlon of the employment

by the respondent of one McCluskey.

3 . The respondents pay the applicants' costs of and mcidental to this application for

further discovery, to be taxed, such

taxation not to take place until judgment

has been given the i principal

proceedings.

NOTE: Settlement and entry of orders is dealt with In Order 36

of the Federal Court Rules.

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I N T H E F E D E R A L COURT OF AUSTRALIA 1

PUEENSLAND DISTRICT REGISTRY ) QLn G101 of 1984

D I V I S I O N G E N E R A L )

BETWEEN :

GLANDORE PTY LTD

First Applicant

DAVID HENRY LEITCH

Second Appllcant

ALMA I M G A R E T L E I T C H

Third Applicant

GARY D A V I D L E I T C H

I Fourth Applicant

AND:

ELDERS	FINANCE	AND	INVESTMENT	CO.	LIMITED
Respondents

P I N C U S J. 25 J U L Y 1985

EX TEMPORE REASONS FOR JUDGMENT

This is an appllcation by notice of motion for further

and better discovery, which ~7as filed on 16 July 1985. The statement of claim in the proceedings ralses allegations of

'conduct falling within 5.52 of the Trade Practices Act, but it

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seems unnecessary, for the purposes of disposing of the

appllcation, to say anythlng further about the issues in the

principal proceedmg.

2 .

Pursuant to order S of Spender J., mutua .l discovery was

had. The applicants, however, being dissatisfied with it, sent a

telex on l4 May 1985 to the other side suggestlng that in various saying that the solicitors for the respondents intimated that

respects, specific and general, the dlscovery was deficient.

they did not intend to go throuqh the entire discovery process

again, but would ask that their client check its records. The

solicitors for the applicants on 17 May, telexed the solicitors

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for the respondents, further explaining the complaints which had

been made and asking for much the same as they had previously

requested.

On 2 July 1985, the solicltors for the appllcants sent a

further telex canvassing the recent history of the matter and

pointing out that no further response had been received relevant

to discovery since the solicitors for the respondents had said on

15 May that they would look at the matter agaln. Mr Robin Q.C.,

on behalf of the respondents, informs me, and I accept,, that

there were subsequent telephone conversatlons but I assume none of them to be relevant to the issue I have to determine, because

their content has not been sworn to. Nothing else seems to have

happened, of any consequence, until 16 July when the notice of

motion 17a5 filed.

This morning, counsel for the respondents says tha t ,

insofar a5 the notice of motion seeks further discovery, it is

not resisted; the only argument becomes one as to costs.

3.

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Mr Jackson Q.C. , m behalf of the appllcants, has taken

me through some of the dekalled complalnts irhlch have been mcde about d1scover:r and, although not all the complalnts, by any means, are necessarily ~ustlfled, the impt-ession giv?n 1s that It

was qulte comprehensible that the s n l l c l c o r s for the appllcants

would have complalned of apparent gaps. Mr M.B. Roherts, m an affidavit flled on behalf of the respondents, says amonq other things that he advised Messrs Mooiccoft and Rodia (ths lattei

havlnq had the primary responslbility for flles and searches f o r

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documents) that a mot-e thorough search was	warranted in VLEW of	1
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the appllcatinn in respect of discoverls of documents. tie slid

that he gave that advlce because the affxdavlts flled l n support

of the notice of rnotlon depose? to circumstances givin? r l s e t o

Mr Roberts' affldavlt ulves me the lmpresslon that, I n

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hls m e w as a vsry experienced litlgation sollcltor, a thorouqh

re-search was :,;arranted. Ho!rever, lt 1s clear, as Mt- Jackson

Q.C. says, that the thorough search W ~ S prompted by the service

of the notice of motion. bkat happened to the search, apparently

of a less	thorouqh lclnd, contemplated In the	May correspondence.	I .
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does not appear.

The lnference rrhlch I draw 1 s that there GJRS some

default on the part of the respondents, at least in the sence

that they gave the appllcants the lmpresslon that they would

pursue the detalled complalnts made by the sol~cltors f o r tne

applicants and ?id not do so.

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4.

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Mr Robin Q.C., on behalf of the respondents, has urged

upon me the view chat I should reserve the costs of the

application. Mr Jackson Q.C., on the other	hand, has suggested	!
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that I should make them immediately payable by the respondents.

I do not propose to take either course. It seems to me unwise to

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reserve the costs because the judge who ultimately hears the

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matter, who will probably be Spender J.. will have	a difficult
task, in my view, in attempting to reconstruct the state of

affairs which is before me. I do not propose to order that costs

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be paid forthwith by the respondents because in general	I m not	!
in favour of taking that course in interlocutory proceedings. It	I
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produces, or can produce, a whole series of orders for and ' i

taxations of costs and adds to the complexity and difficulty	of
administering a proceeding of this sort.

I am, however, of the view that the applicants should I

have their costs, firstly because the consent to the order vhich	!
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is to be made prima facie carries with it the implication that

those	advising	the	respondents	think	that	further	discovery	is	I
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warranted. Although Mr Robin Q.C. denles that mplication, it

seems to me inevitably bound up ln his consent. Secondly, the

documents to which Mr Jackson Q.C. has referred me suggest, dthough they certainly do not prove conclusively, that discovery may be incomplete; at the very least, they clearly warranted the

complaints made by the applicants which did not, in my view,

receive an adequate response on the other side. Thirdly, I am

influenced by the content of the affidavit of Mr Roberts, to

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which I made reference earlier.

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5.

The orders will be in terms of pars. (a) and (b) of the

notice of motion, and there will further be an order that the

respondents pay to the applicants their costs of and incidental

to this application for further discovery, to be taxed, such

taxation not to take place until judqmenr;	has	been given in the	I
principal proceeding.

certify tba* thl; and the 4 prece&ng

r a w are a true copy of the reasons for

judgment herein of His Honour , I

Mr. Justice Pmcus &A o l L . !

//%/3s Associate

badd I