Gough v City of Holdfast Bay (No 2) - [2014] SADC 67

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
GOUGH & ORS v CITY OF HOLDFAST BAY (No 2)
[2014] SADC 67
Reasons for Decision of His Honour Judge Slattery
30 April 2014
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GENERALLY
Interlocutory application made by the plaintiffs seeking disclosure of various documents which they claim are either directly relevant to the proceedings under 6DCR 136(1)(a) of the District Court Rules, or alternatively the plaintiffs are entitled to the benefit of an order of the Court under 6DCR 136(1)(b).
Held: application refused.
Local Government Act s191 ; Land Acquisitions Act s10 ; Trade Practices Act s87, Part V; Competition and Consumer Act Generally; Residential Parks Act s50; District Court Rules 6DCR 136(1)(a) and (b), rule 58A.03, rule 58A.04 of the 1987 Rules, referred to.
Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374 ; Rehn v Australian Football League and Others [2003] SASC 159; O’Meara v FWV Stanke Holdings Pty Ltd (No. 2) [2007] SASC 294 , applied.

GOUGH & ORS v CITY OF HOLDFAST BAY (No 2)
[2014] SADC 67
JUDGE SLATTERY

Interlocutory application dated 28 April 2014 brought by the plaintiff for orders that the defendant make further disclosure of documents.
The application: a summary
The documents sought are described in an affidavit of Peter John Humphries sworn 28 April 2014 (FDN 63) and the exhibits thereto (FDN 63A-D inclusive). In a letter of 8 April 2014 DBH Commercial Lawyers (DBH) for the plaintiff made a request in the following terms:-
“We request that your client disclose all such documents, and any other documents relating to:
a) The sale or possible sale of dwellings as “goods and chattels” to be taken off site; and
b) The cost and reasons for demolishing the dwellings onsite.”
There appears to have been some communication and negotiation between the parties about this request and I presume that the approach of the plaintiffs was further clarified. This is because the request of the plaintiffs appears to have been clarified by the written response of the defendant’s solicitors.[1] The letter relevantly read as follows:-
“We are instructed to respond as follows:-
1.   The documents you have requested that relate to:-
1.1   The Council’s decision to remove the dwelling at the Brighton Caravan Park (Park) that were formerly occupied by persons other than the plaintiffs;
1.2   The associated costs of removing those dwellings; and
1.3   The process of removing those dwellings
are not directly relevant to any issue in dispute…”
[1] Exhibit PJH 2 to the affidavit of Peter John Humphries FDN 63B; letter Wallmans Lawyers to DBH 8 April 2014.
In a response by DBH of 9 April 2014,[2] the solicitors for the plaintiffs advised, relevantly as follows:-
“…the documents we have requested are directly relevant to the exercise of the discretion as to what remedy might be granted by the Court. The remedies we seek are in issue. The costs of removal, potential destruction of the dwellings etc. are directly relevant to such issues.”
[2] Exhibit PJH 3 to the affidavit of Peter John Humphries FDN 63C.
The defendant, through its solicitors, responded by letter dated 16 April 2014[3] as follows:-
“…
1.   We refer to your request for documents relating to the Council’s decision to remove dwellings at the Brighton Caravan Park (Park) that were formerly occupied by persons other than the plaintiffs and the associated cost and process of removing those dwellings. We reiterate that we do not consider said documents directly relevant to the remedies sought by your clients as they do not relate to the removal or valuation of the plaintiffs’ dwellings.
2.   …
3.   …”
[3] Exhibit PJH 4 to the affidavit of Peter John Humphries FDN 63D.
A summary of the proceedings and the causes of action
In this action, the plaintiffs sue the defendant in respect of rights which the plaintiffs claim they possess as residents of the Brighton Caravan Park, Burnham Road Kingston Park in South Australia (the Caravan Park). Generally, the plaintiffs seek declaratory relief against the defendant, and seek orders that each of them is entitled to continue to occupy a site in the permanent residents’ area of the Caravan Park so long as it remains the plaintiffs’ primary residence, and declarations concerning rights under s191 Local Government Act (LGA), s10 of the Land Acquisitions Act (LA Act), s87 of the Trade Practices Act (TPA) and consequential injunctive relief and other relief under the TPA or the Competition and Consumer Act (CCA) including injunctions restraining the defendant from seeking to evict the plaintiffs. Alternatively, the plaintiffs also seek orders that the defendant compensate them for the loss suffered by them as a result of having to vacate their site. Further damages claims are put in the alternative; for compensation for the loss suffered by the plaintiffs as a result of the purported acquisition of the plaintiffs’ interests; for the loss suffered by the plaintiffs as a result of the plaintiffs being unable to sell their dwellings as contemplated by s50 of the Residential Parks Act (RPA) and orders available under the TPA (Part V) or the CCA.
The defendant denies the claims of the plaintiffs, denies that the plaintiffs have any entitlement in the nature of any right to occupy any site in the Caravan Park and any right or rights arising under statute. The defendant also pleads that the relief sought by the plaintiffs is disproportionate to the equity asserted by them in the relevant area of the Caravan Park and goes beyond protecting that equity. The defendant says that equitable compensation and or damages would be an adequate remedy.
The plaintiffs’ contentions
The plaintiffs’ first contention is that the documents sought are directly relevant for the purposes of 6DCR 136(1)(a) of the District Court Rules. Alternatively, the plaintiffs assert that the documents sought by them ought to be disclosed under 6DCR 136(1)(b) because the justice of the case requires the documents be disclosed.[4]
[4] O’Meara v FWV Stanke Holdings Pty Ltd (No. 2) [2007] SASC 294 (Stanke).
The plaintiffs submitted that the questions that arise on the plaintiffs’ cases included the possibility that the plaintiffs may be required to remove the caravans and annexes currently occupied by them upon the relevant sites in B Block of the Caravan Park. The position is that fifteen of the sixteen plaintiffs occupy caravans or caravans and annexes situate upon the relevant B Block of the Caravan Park. Each of the plaintiffs assert that, by various combinations of circumstances, they are entitled to a declaration of their lifetime tenancy of the particular site occupied by each of them in the B Block of the Caravan Park.
A principal contention of the plaintiffs was that some evidence exists which discloses that the Council has arranged for or authorised the removal of a number of caravans and annexes that were previously onsite in the B Block section of the Caravan Park. There are now only 15 of the 16 sites currently occupied in B Block of a total of 30 sites available in that section. It is common ground between the parties that a number of the sites have been recently cleared of caravans and annexes that once sat upon those sites. Some of the sites have been vacant for much longer periods.
The plaintiffs contend that bearing in mind the breadth of the discretion of the Court concerning equitable relief and the contention of the defendant generally in respect of each of the plaintiffs’ claim that the relief sought is disproportionate to the equity claimed and that equitable compensation or damages would be an adequate remedy, then any document possessed by the defendant concerning the removal of any of the caravans and annexes is directly relevant to the question of the calculation of damages, in equity, claimable by the plaintiffs. This is because, as it was contended, the information obtained by the defendant in and about the process of the removal of these caravans and annexes is directly relevant to the question of the issue of the costs that might be incurred by the plaintiffs in and about the removal of the caravans and annexes from the site and which would be taken into account in the assessment of equitable damages.
The plaintiffs also contend that this argument informs the secondary aspect of the plaintiffs’ application namely that bearing in mind the information concerning these matters is already possessed by the defendant, then the justice of the case would require that disclosure of that material should be made by the defendant.
The plaintiffs do not contend and were not able to point to any specific aspect of relevance about the particular sites that have been cleared. The plaintiffs do not contend that the documentation that may have been produced in and about the clearance of sites that have been cleared, (but which is not specifically identified by the plaintiffs), will directly inform the question of the damages assessment in relation to the plaintiffs’ own particular sites. In my opinion, that approach of the plaintiffs is correct because each site will have its own unique aspect for consideration. Further, there is no alleged consistency of approach about the question of what each owner may do in relation to each site in the event that the Court makes orders refusing injunctive relief associated with any declaratory relief but makes orders for equitable compensation.
The question of direct relevance[5]
[5] 136—Obligation to disclose documents
(1)Each party must disclose the documents that are, or have been, in the party's possession and—
(a)     are directly relevant to any issue raised in the pleadings or affidavits files in lieu of pleadings; or
(b)     are to be disclosed by order of the Court.
(2)The disclosure is made by filing in the Court a list of documents in the approved form.
(3)The disclosure is to be made as follows—
(a)     in the first instance, disclosure is to be made within the prescribed period and is to relate to documents that are in the party's possession or have previously been in the party's possession;
(b)     if documents come into the party's possession after the initial disclosure—supplementary disclosure is to be made as soon as practicable after they come into the party's possession.
(4)The prescribed period is the period of 21 days running from the end of the settlement conference or, if there is no settlement conference, from the close of pleadings.
(5)If a document is no longer in a party's possession, the list must state how the document left the party's possession and any information the party may have about where the document might be found.
(6)The following documents need not be disclosed—
(a)     an investigative film made for the purposes of the action;
(b)     documents that have been filed in the action;
(c)     communications between the parties' lawyers or notes of such communications;
(d)     correspondence between a party and the party's lawyer or notes of oral communications between a party and the party's lawyer;
(e)     opinions of counsel;
(f)     copies of documents that have been disclosed or are not required to be disclosed.
(7)If a party required to disclose a document claims that the document is privileged from production, the list must state the nature of the privilege and the grounds on which it is claimed.
(8)If a party who has filed a list of documents later becomes aware that the list is defective or incomplete, the party must file a supplementary list as soon as practicable.
In Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374 in relation to rule 58A.03[6] Doyle CJ said the following:-
“[8] The meaning and proper application of this Rule can only be understood in its historical context. It replaces a Rule the effect of which was to require discovery of documents if they related to any matter in question in the action. That requirement had been interpreted broadly. It extended to any document if it was reasonable to suppose that it contained information which might directly or indirectly enable the parties seeking discovery to advance that party’s own case or to damage the case of the opponent, or which might fairly lead the party to a train of inquiry which might have either of those consequences: see Mulley v Manifold (1959) 103 CLR 341 at 345 Menzies J. The new Rule takes a different and much more restrictive approach.
[9] Now discovery is to be made only of documents which are “directly relevant to any issue arising on the pleadings.” The meaning of the expression “directly relevant” will have to be worked out over time.
[10] I agree with the observations made by Bleby J in Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No.5) [2001] SASC 335. The test of relevance is to be applied by reference to the issues arising on the pleadings. The obligation to make discovery is not limited to documents that are admissible in evidence. Although I do not have to decide it in this case, I am inclined to agree with Bleby J that a document is discoverable if it constitutes circumstantial evidence, tending, along with other evidence, to prove or disprove a matter in issue on the pleadings: see also Robson v R E B Engineering Pty Ltd [1997] 2 QR 102 at 105.
[11] It is not wise to attempt to state in comprehensive terms the effect of the requirement that the document be “directly relevant.” The adverb “directly” is probably intended to emphasise the requirement of relevance, and to be used in the sense of requiring that the document be directly in point, excluding as sufficient indirect relevance which might be established through another linking circumstance. That is not to say, as I have already said, that a document is not directly relevant if it is merely a piece of circumstantial evidence. The point is that a document will not be directly relevant if, rather than tending to prove an issue on the pleadings, it merely tends to prove something that may be relevant to an issue. As will appear, this point has some bearing on the outcome of the appeal before me.”
[6] Rule 58A.03: “the parties must discover in their list of documents, but discover only, the documents which are or have been in their possession, custody or power which are directly relevant to any issue arising on the pleadings.”
In my opinion, the documents sought are not directly relevant to any issue raised in the pleading. This is because the plaintiff does not in any way plead that the particular sites that have been cleared of caravans and annexes, will directly or inferentially inform the question of the assessment of loss concerning any other site occupied by any of the plaintiffs. There is no pleading of any link or association between the two matters and in my view any attempt to make the link would not be sustainable. And the plaintiffs did not purport to make such a connection. In my opinion the documentation concerning the “other sites” is relevant only to those sites, which are not the subject of any pleading before this Court. That is not to say that in particular circumstances they will not have relevance. It is sufficient to say that in the circumstances of this case they are not directly relevant.
The alternative argument: R136(1)(b)
I turn then to the alternative argument put on behalf of the plaintiffs under 6DCR 136(1)(b). The argument of the plaintiff is that the justice of this case requires that disclosure be made by the defendant of the documents sought. In my view there is now well settled authority of the Court in respect of analogous rules that guide the exercise of my discretion in this matter.
In Rehn v Australian Football League and Others [2003] SASC 159, Doyle CJ considered an appeal by the defendant against orders made by a Master that the defendant discover and produce for inspection certain documents in the defendant’s possession said to be directly relevant[7] or alternatively are indirectly relevant to issues arising on the pleadings and it is in the interests of justice that they be produced.[8] Those documents related to playing contracts of players in the AFL earning above a particular limit in particular seasons as well as the marketing contracts of particular players on the same basis. Mr Rehn argued that the contracts would indicate a range of payments to players and that in his case, because of his skill as an AFL footballer, the payments that would have been made to him would have fallen somewhere within a predictable range and so Mr Rehn would be able to prove the losses that he sustained because, by virtue of the negligence of the defendant, he was prevented from earning a salary in those ranges.
[7] Ibid.
[8] R58A.04(1) Parties are not to include in their list of documents any documents which are only indirectly relevant to any issue arising on the pleadings unless it is ordered by the Court where it is in the interests of justice to do so.
Doyle CJ agreed with the decision of the Master at first instance and decided that the relevant material was not directly relevant to an issue in the pleadings.[9] His Honour found that it was in the interest of justice to order the production. His Honour was satisfied that the information that was available publicly did not necessarily completely inform Mr Rehn’s position, the AFL had not attempted to establish that the production of the contract was an onerous task or involved significant expense or that the inspection of the contracts would not provide any useful information. Also, his Honour took into account that the AFL had not provided to the Court any information about the basis on which it held the copy contracts or about any obligations of confidentiality imposed upon it by players or clubs by the AFL rules or by the contracts themselves. In the exercise of his discretion, Doyle CJ found that it was open to the Master to make an order for the production of the documents.
[9] Decision paragraph [31].
The relevant considerations
In this case, I am guided by the matters that fell from Doyle CJ in the Rehn decision and from Vanstone J in Stanke. In this case the factors to be considered are matters such as accessibility of the documents from other sources, the trouble and expense for the party making the disclosure and the confidentiality of documents. There is no evidence of any aspect of confidentiality of the documents. There is also no evidence concerning the trouble and expense for the defendant party to make disclosure. There was no evidence put before me about the accessibility of the documents from other sources.
The plaintiffs read in evidence an affidavit of Edwina Mary Storer sworn 28 April 2014. Ms Storer deposed in her affidavit to having had a conversation with a person from ABCO Caravans and Relocatables (ABCO). In this matter, there is some evidence concerning the involvement of ABCO in and about making estimates for costs for removing some caravans and annexes and the removability of caravans and annexes from the Caravan Park. In her affidavit, Ms Storer said the following:-
“During my conversation with Matt (from ABCO), of whom I understand to be the boss, I discussed the following:
3.1   I told him I was representing the Permanent Residents from the Brighton Caravan Park in relation to current litigation against the City of Holdfast Bay Council.
3.2   He told me he was familiar with the Permanent Residents area at the Brighton Caravan Park.
3.3   He told me he had attended the Brighton Caravan Park and inspected a number of the sites including those within the Permanent Residents Area.
3.4   He told me ABCO had purchased a number of caravans from the Brighton Caravan Park and brought them back to the ABCO store.
3.5   He told me ABCO had removed a number of caravans from the Brighton Caravan Park by demolishing them.
3.6   I told him I wanted to obtain a quote from him for the cost of relocating one of the dwellings in the Permanent Resident area of the Brighton Caravan Park.
3.7   He told me it would be very expensive to relocate a whole caravan with a permanent annex attached to it; he told me it would be a lot cheaper to simply demolish the area and buy a new caravan and annex and fit it out in the site.
3.8   He told me it would cost between $30,000.00 and $35,000.00 to relocate one of the caravans in the Permanent Residents are of the Brighton Caravan Park.
3.9   He told me he did not think this was at the higher end of the scale of the possible relocation costs each dwelling within the Permanent Residents Area of the Brighton Caravan Park would incur.
3.10   He told me the cost of relocating a caravan and annex would be increased the further away it needed to be relocated.”

Arguendo, I raised with counsel for the plaintiffs whether a representative from ABCO would be called to give evidence in the proceedings on the very topics about which disclosure is sought. The response from the plaintiffs was that as the defendant already had the documents in its possession, then there would be no trouble and expense for it to make disclosure, there was no confidentiality, and the plaintiffs should not be put to the expense of seeking access from other sources.
The paucity of evidence
There was no evidence before me as to justify the assertion by the plaintiffs concerning the fact that the defendant had the documents in its possession. A close perusal of the affidavit of Ms Storer does not necessarily indicate any connection between ABCO and the City of Holdfast Bay (the defendant). That connection may well be the case but it is not clear on the affidavit. In these circumstances I am prepared to make an assumption of some connection between ABCO and the defendant but the difficulty remains that any documents associated with the conduct of ABCO relates not to any site concerned with any plaintiff in the proceedings but with sites other than those concerning the plaintiffs in these proceedings. This means that potentially there are many variables that may come into play when comparing any information provided. No questions appear to have been put by Ms Storer to ABCO that inform any connection between the two issues. And no attempt is made in the affidavit to postulate the plaintiffs’ position to ABCO and so to allow the identification, by logical conclusion, of the reliability of and usefulness of the information now possessed by ABCO as it may pertain to the plaintiffs.
In conclusion, the opinion that I have formed, weighing all matters in the balance, and having regard to the authorities,[10] I would not make an order under Rule 6DCR 136(1)(b). In Rehn, there was a direct connection between the claim of Mr Rehn and the information that would have been provided by the contracts of the other footballers with whom Mr Rehn would seek to be compared for the purposes of his assessment of loss. The question of where Mr Rehn fitted within the particular bands of payments was a matter for the trial Judge. In this case, it is not a matter of taking each of the figures of costs that have been incurred in relation to all of the other caravans and trying to make some assessment of where the particular plaintiffs fall within particular bands of costs. That is because each particular site is different to a greater or lesser extent and this means that the costs incurred do not inform the assessment of losses that may be sustained by the plaintiffs. Also, it cannot be estimated now where the particular caravans will be taken by the plaintiffs in the event that they are not able to remain at the Caravan Park. Each may have a different fate or be delivered by a variety of methods to different places. These are further variables that must be considered.
[10] Rehn v Australian Football League and Ors [2003] SASC 159; O’Meara v FWV Stanke Holdings Pty Ltd (No. 2) [2007] SASC 294.
Although I am not able to find in favour of the plaintiffs on this application, there are alternative means available to the plaintiffs to obtain the documents. I will hear and dispose of any application in relation thereto in the short term.