Ian Michael Granger and Rosemary Ann Granger v Foster
[2004] WADC 52
•26 MARCH 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: IAN MICHAEL GRANGER AND ROSEMARY ANN GRANGER -v- FOSTER [2004] WADC 52
CORAM: GROVES DCJ
HEARD: 22 MARCH 2004
DELIVERED : 26 MARCH 2004
FILE NO/S: CIV 3442 of 2001
BETWEEN: IAN MICHAEL GRANGER AND ROSEMARY ANN GRANGER
Plaintiffs
AND
WILLIAM FOSTER
Defendant
Catchwords:
Practice and procedure - Consent order for discovery of documents - Springing order - Failure to comply - Leave to enter judgment - Appeal - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Representation:
Counsel:
Plaintiffs: Mr C P Shanahan
Defendant: Mr M D Cuerden
Solicitors:
Plaintiffs: Butcher Paull & Calder
Defendant: Nicholson Clement
Case(s) referred to in judgment(s):
Broers v Forster (1981) 36 ALR 605
Chesson v Green & Ors [2001] WASC 13
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
In Re Jokai Tea Holdings Ltd [1989] 1 WLR 1196
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Case(s) also cited:
FAI Genereal Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
GROVES DCJ: On 21 March 2003 a consent order was made that the plaintiffs give discovery of all documents which they had or have had of the class or classes of documents described in the Schedule to the order. On 4 September 2003 a springing order was made requiring the plaintiffs to comply with that order within 21 days otherwise their action would be dismissed.
On 5 December 2003 a Deputy Registrar ordered that the defendant have leave to enter judgment in terms of that latter order and that the plaintiffs pay the defendant's costs of the application. By notice dated 10 December 2003 the plaintiffs' appeal against the decision of the Deputy Registrar granting leave to the defendant to enter judgment.
The history of the plaintiffs' discovery of documents
By affidavit of the first named plaintiff sworn 24 June 2002 the plaintiffs listed their discoverable documents. Under cover of letters dated 15 August 2002, 3 and 10 September 2002, 2 and 8 October 2002 and 20 December 2002 from the plaintiffs' solicitor to the defendant's solicitor further documents (as were apparently identified in that correspondence) were discovered. It was at this stage that the order for particular discovery was made on 21 March 2003.
By affidavit of the first named plaintiff sworn 7 April 2003 further documents were discovered and certain other documents for which privilege was claimed were identified. The claim for privilege in respect of those documents was subsequently waived.
A supplementary affidavit sworn 11 June 2003 identified further discoverable documents. A letter dated 26 August 2003 from the plaintiffs' solicitor to the defendant's solicitor apparently identified further discoverable documents.
Not satisfied with the plaintiffs' response to the order of 21 March 2003 the defendant by chamber summons dated 17 July 2003 made application for a springing order. That application was listed for hearing on 4 September 2003. In opposition to the application and in reply to an affidavit of the defendant sworn 17 July 2003 the first named plaintiff swore an affidavit dated 27 August 2003. In that affidavit he deposes to having made genuine attempts to respond to requests for discovery or further discovery from the defendant's solicitor and that he was well aware that he had an ongoing obligation in respect of discovery in the event of further documents coming to light. He deposed that:
"To the best of my information and belief, I do not have nor have I ever had in my possession or power any documents other than those documents of which I have already given discovery."
He then goes on to respond to particular matters raised in the defendant's affidavit and to depose to enquiries made by him in his attempt to ascertain if there were any further documents. The sum total is that all discoverable documents which the plaintiffs had or have had have been identified and the description of those documents had either by affidavit or letter been conveyed to the defendant's solicitor. There were no other discoverable documents. That apparently remains the situation to this day.
The defendant's solicitors took the view that despite the further discovery of documents and the first named plaintiff's last affidavit that the order of 21 March 2003 for discovery of particular documents had not been complied with. After hearing argument the springing order was made on 4 September 2003.
On 9 September 2003 each of the plaintiffs swore separate affidavits purporting to be made in compliance with the order for particular discovery made on 21 March 2003. Each made reference to the prior affidavits of discovery sworn by the first named plaintiff. The male plaintiff deposed that other than the documents already discovered either on oath or by letter from his solicitors to the defendant's solicitor that he did not have nor had he ever had in his possession, custody or power any of the class or classes of documents described in the Schedule to the order of 21 March 2003. Likewise, the female plaintiff deposed to similar effect.
Still the defendant's solicitors took issue contending that the two affidavits sworn by the plaintiffs of 9 September 2003 did not strictly comply with the order of 21 March 2003. The view taken was that as the springing order had sprung the defendant was entitled to judgment. The Deputy Registrar granted leave to the defendant to enter judgment.
The nature of the appeal
The nature of an appeal from a Registrar to a Judge of the District Court was considered by Malcolm CJ in Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 where his Honour found that:
(i)The jurisdiction exercised by a Registrar in respect of interlocutory matters is a delegated jurisdiction.
(ii)A condition of the delegation of this jurisdiction is the provision of a complete review de novo before a Judge of the District Court.
(iii)In conducting such an appeal each party may rely on evidence in affidavit or orally before the Registrar.
(iv)Furthermore a re‑hearing of the matter would also permit the admission of further evidence, without leave, subject to the discretion of the Judge to exclude such evidence where it is irrelevant or where it would be unjust to admit it.
The issue as to compliance with the order
The first issue is whether or not there was a failure on the part of the plaintiffs to comply with the order for discovery of specific documents made on 21 March 2003.
The defendant contends that there was not "an" affidavit in the terms required by the order because the affidavits of 9 September 2003 each sought to incorporate, in a piecemeal fashion, the content of previous affidavits and correspondence. That is, there was no clear unambiguous statement on oath as to what, if any, documents of the class or classes particularised in the Schedule which the plaintiffs had or have had in their possession, custody or power. That much at least has to be accepted. The order required that "…an Affidavit…be made and filed by the plaintiffs." That may contemplate a single affidavit which to comply would be sworn by both plaintiffs. On the other hand if separate complying affidavits had been sworn issue could hardly be taken. More particularly however the order does not allow for the incorporation by reference simply to other affidavits or to correspondence. In respect to the correspondence the 9 September 2003 affidavits did not identify to which correspondence reference was being made. Thus it is not apparent on the face of the affidavits which letters were being referred to. It should not be for the defendant in those circumstances to have to identify for himself what correspondence is relevant even though that may not be a difficult task.
Whilst defendant's counsel described the plaintiffs' failure as a technical non‑compliance with the order it is nevertheless an important matter insofar as the orderly disposition of civil litigation is concerned.
On the other hand plaintiffs' counsel argued that the order was satisfied by the several affidavits and correspondence and the statements by each plaintiff that they had no other documents. That is, the order had been complied with in substance in that all documents had been identified albeit generally and without specificity. For the reasons outlined I do not accept that to be sufficient to comply with the order. It could never be sufficient compliance with the order that the receiving party would have to go to a multiplicity of other documents and correspondence and collate them for the purpose of discerning whether or not what the order required had been fulfilled.
Subsequent to the order of 5 December 2003, being the order appealed from, the plaintiffs' solicitors recognised as much. On 30 December 2003 each of the plaintiffs swore separate affidavits deposing as to all the documents which had previously been identified as being the only documents which they have or have had as being of the class or classes of documents described in the Schedule to the order. Had those affidavits been sworn and filed following the order of 4 September 2003 the order would have been adequately complied with. Defendant's counsel also accepts that proposition. However, by the time those affidavits were sworn it was too late – the springing order had sprung.
So finally, as to the issue as to whether or not there was a failure to comply with the order the answer has to be Yes albeit that it might be said that it was a technical non‑compliance. Technical or not the order was not complied with. Nor is it a matter of form taking precedence over substance. What was required was clear and unambiguous. Piecemeal compliance by incorporation or reference to other documents or unidentified correspondence was not an adequate response.
Should time for compliance be extended
The plaintiffs had sought a further extension of time to comply with the order. That application was refused. The Court has power to extend time: Rules of the Supreme Court O 3, r 5. The exercise of that power is at the discretion of the Court.
The consequence of the order appealed against is that the plaintiffs have now been denied the opportunity to pursue their claim against the defendant through the trial process.
In Chesson v Green & Ors [2001] WASC 13 at par 10 Master Bredmeyer adopted the following statement of principle from In Re Jokai Tea Holdings Ltd [1989] 1 WLR 1196 at 1203, as to whether time should be extended:
"In my judgment, in cases in which the Court has to decide what are the consequences of a failure to comply with an 'unless order', the relevant question is whether such failure is intentional and contumelious. The Court should not be astute to find excuses for such failure since obedience to orders of the Court is the foundation on which its authority is founded. But if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed."
The test for compliance with a similar springing order (for delivery of particulars) was considered in Broers v Forster (1981) 36 ALR 605 per Bowen CJ and Ellicott J at pp 613‑614. More particularly, Deane J at pp 621‑622 observed firstly that where the order to be complied with was a consent order that any requirement of precision and clarity should be less stringent than when the terms have been determined by the Court as appropriate. Secondly, he considered that such an order should properly be construed as being essentially a time order:
"…and as requiring, by or on behalf of the appellants, the supply of a document made in good faith which could fairly be seen as constituting a genuine attempt to provide the relevant particulars."
Further, it must not be an illusory attempt to comply with the order.
What the plaintiffs attempted to do by their affidavits of 9 September 2003 was to comply with the order. They failed in that respect but what they did do, albeit piecemeal, and as is confirmed by their affidavits of 30 December 2003 is to have made a substantive attempt to comply with the order. Thus, it was not an illusory attempt to comply. It is fair also that they no doubt relied on their solicitors insofar as what was required so as to comply with the order and there is nothing to suggest to me that they did not in their purported compliance act in good faith. They may have been of the belief that what was being prepared on their behalf was adequate and were so guided by their solicitors. Furthermore, they were aware as expressed by the first named plaintiff of their responsibility to give continuing discovery and it is apparent from the history that that was done as and when further documents came to light.
I do not regard the circumstances here as being a situation where the principles of case flow management should override the attainment of justice. The ultimate aim of the Court is the attainment of justice and all the processes and procedures of the Court are to be conducted so as to attain this object: see State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 per Kirby J pp 170‑172.
On the information before me I am not able to conclude that the plaintiffs' failure to comply with the order was intentional. Quite the contrary every attempt was made to comply. That is confirmed by the latest affidavits sworn 30 December 2003 which I am prepared to admit by way of further evidence (see Hazart Pty Ltd v Rademaker (supra)) which do comply with the order.
I am satisfied that the plaintiffs should be relieved of the dire consequence of the order made on 5 December 2003. Although, as I have found, there was a technical failure to comply with the order it had nevertheless been substantively complied with and was capable of easy remedy as was done. In my opinion the plaintiffs should have been afforded a further opportunity to do that which was required so as to, in fact, comply with the order so that there could be no doubt as to the documents discoverable in response to the order.
Accordingly, the appeal will be allowed. I will hear counsel as to the appropriate orders to be made.
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