Integrated Management Services Pty Ltd v Inches - [2009] WADC 41

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: INTEGRATED MANAGEMENT SERVICES PTY LTD -v- INCHES [2009] WADC 41

CORAM: DAVIS DCJ

HEARD: 4 MARCH 2009

DELIVERED : 27 MARCH 2009

FILE NO/S: CIV 1734 of 2008

BETWEEN: INTEGRATED MANAGEMENT SERVICES PTY LTD
Appellant (Defendant)
AND
PAUL INCHES
Respondent (Plaintiff)

Catchwords:

Appeal - Practice and procedure - Further and better discovery – Whether documents in the "power" of the party

Legislation:

District Court Rules 2005 r 24(1)
Privacy Act 1988 (Cth) s 6 and cl 6 of Sch 3
Rules of the Supreme Court 1974 O 26 r 6
Workplace Relations Act 1999 (Cth)
Workplace Relations Regulations 2006 (Cth) Pt 19

Result:

Appeal allowed in part

Representation:

Counsel:

Appellant (Defendant) : Mr M G Lundberg
Respondent (Plaintiff) : Mr A M Dzieciol

Solicitors:

Appellant (Defendant) : Mallesons Stephen Jaques
Respondent (Plaintiff) : Fiocco's Lawyers

Case(s) referred to in judgment(s):

Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259
Biltoft Holdings Pty Ltd v Casselan Pty Ltd, unreported; SCt of WA; Library No. 940252; 20 May 1994
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Chavarria v Rodman [2006] WADC 42
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Midalco Pty Ltd v Simpson, unreported; FCrt SCrt of WA; Library No. 6747; 5 June 1987
Sabre Corp Pty Ltd v Russ Kalvin's Hair Care Co (1993) 46 FCR 428; 124 ALR 400
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

DAVIS DCJ: This is an appeal from a refusal of the Deputy Registrar to make orders on the appellant's application for further and better discovery of documents by the respondent.
The respondent had, for nearly two years, been employed by the appellant as a senior Industrial Relations Consultant. The respondent had been "hired out" to a client of the appellant's, Worley Parsons Services Pty Ltd ("Worley Parsons") to work on a project which was being carried out by Fortescue Metals Group Limited ("FMG").
In late March 2008 the contract of employment between the appellant and the respondent came to an end. There is an issue about how it came to an end. The respondent pleads that the appellant terminated the contract, while the appellant pleads that the respondent "abandoned" his employment. Shortly afterwards, on 7 April 2008, the respondent became employed directly by Worley Parsons.
The respondent then commenced action against the appellant, claiming certain bonus sums and other payments which he said were due to him by the appellant. The appellant has disputed these claims and has counterclaimed damages for alleged breaches of the contract of employment between the appellant and respondent, including a breach of the term of the contract containing post employment restraints. The appellant claims that this term restrained…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Integrated Management Services Pty Ltd v Inches

Details

AGLC: Integrated Management Services Pty Ltd v Inches [2009] WADC 41
Case: [2009] WADC 41
Decision Date: 27 MARCH 2009

CaseChat Overview and Summary

The case of Integrated Management Services Pty Ltd v Inches involved a dispute between two parties in the Federal Court of Australia. Integrated Management Services (IMS) sought an order for further and better discovery of documents from Inches, a former employee, alleging that he held documents relevant to the case that were in his "power" and control. Inches denied holding such documents and argued that the discovery request was an abuse of process. The matter was appealed from the Federal Circuit Court to the Federal Court.

The central legal issue before the court was whether the Federal Circuit Court had correctly exercised its discretion in denying IMS's application for further and better discovery. The court was required to determine whether the documents in question were indeed within Inches' "power" and control and whether the application for further and better discovery was an abuse of process. Additionally, the court needed to assess the application of the relevant principles governing discovery and the exercise of discretion in such cases.

The Federal Court held that the Federal Circuit Court had not exercised its discretion properly in denying IMS's application. The court found that the documents in question were indeed within Inches' "power" and control, and that the application for further and better discovery was not an abuse of process. The court emphasised that the decision to grant or refuse further and better discovery lies within the sound discretion of the court, and that this discretion should be exercised judiciously. The court concluded that the Federal Circuit Court had failed to consider all relevant factors and had not adequately exercised its discretion, leading to the appeal being allowed and the matter remitted back to the Federal Circuit Court for reconsideration.

The court's final orders were that the appeal be allowed, the decision of the Federal Circuit Court be set aside, and the matter be remitted to the Federal Circuit Court for reconsideration of the application for further and better discovery. The court also noted that the parties should be mindful of the costs associated with such applications and the need to exercise their rights and obligations under the law prudently.

Orders