Kado v Taisei Kanko Australia Pty Ltd

[2012] QSC 179

SUPREME COURT OF QUEENSLAND

CITATION:

Kado v Taisei Kanko Australia Pty Ltd [2012] QSC 179

PARTIES:

MINORU KADO, KUNIHISA KADO AND JUNKO KADO

(Applicants)

v

TAISEI KANKO AUSTRALIA PTY LTD
ACN 141 359 104

(First Respondent)

and

TAISEI KANKO PTY LTD ACN 052 896 214

(Second Respondent)

and

HIDENORI KADO

(Third Respondent)

FILE NO/S:

BS 6025 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application without an oral hearing

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

22 June 2012

DELIVERED AT:

Brisbane

JUDGE:

McMurdo J

ORDER:

1.   Pursuant to rule 223(1) the First Defendant and Third Defendant shall, at their cost:

(a)   Produce for inspection by the Plaintiffs or the Plaintiffs’ solicitors the following documents:

(i) documents referred to at paragraphs 29(a), (e) and (f) and 82 of the affidavit of Elizabeth Jacques affirmed 23 September 2011;

(ii) documents referred to at paragraphs 97, 99, 123 and 217 of the affidavit of Hidenori Kado affirmed 3 November 2010

(b)   Deliver to the plaintiffs’ solicitors a copy of any document inspected during the inspection within 7 days of receiving a request for a copy of the document

2.   In the event any document referred to in Exhibit ‘RWB-41’ to the affidavit of RW Barnes filed 27 April 2012 has ceased to exist or passed out of the possession or control of the First Defendant, Third Defendant or anyone else on their behalf, that the Third Defendant or other appropriate deponent, file and serve within 21 days from the date of this order an affidavit pursuant to rule 223(2) deposing to those circumstances.

3.   The First and Third Defendants pay the plaintiffs’ costs of and incidental to this application to be assessed on the standard basis.

CATCHWORDS:

Uniform Civil Procedure Rules 1999 (Qld), r 222

GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33, cited

Rubin v Expandable Ltd [2008] 1 WLR 1099, cited

COUNSEL:

No appearance for either party, the application was heard on the papers

SOLICITORS:

Rodgers Barnes & Green Lawyers for the plaintiffs

Harris & Company Solicitors for the defendants

1. The plaintiffs have requested the first and third defendants to produce certain documents in reliance upon r 222 of the Uniform Civil Procedure Rules 1999 (Qld). These are said to be documents mentioned in affidavits filed on behalf of the first and third defendants. The plaintiffs seek orders for the production of these documents and the provision of copies of them. The respondents say that the documents requested have not been “mentioned” in the sense required for r 222.

1. It is common ground that the rule is engaged only where there is a “direct allusion” to a specific document and an inferred or implied reference is insufficient:  see, for example, the discussion by Margaret Wilson J in GSM (Operations) Pty Ltd v Suwenda.[1]  Her Honour there referred to the judgment of Rix LJ, discussing the equivalent rule in England, in Rubin v Expandable Ltd.[2]  I respectfully adopt this passage from that judgment:

“24.[T]he expression ‘mentioned’ is as general as could be.  This is not to my mind intended to be a difficult test.  The document in question does not have to be relied on, or referred to in any particular way for any particular purpose, in order to be mentioned. … The general ethos of the CPR is for a more cards on the table approach to litigation.  If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection.  I look upon the mention of a document in pleadings etc as a form of disclosure.  The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important informal category of documents.  If so, then the party deploying that document by its mention should in principle be prepared to require to permit its inspection, and the other parties should be entitled to its inspection.  What in such circumstances is the virtue of coyness?”[3]

[1][2010] QSC 33.

[2][2008] 1 WLR 1099.

[3][2008] 1 WLR 1099 at 1108.

1. I go then to the documents which are sought by this application, narrowed as it has been by the supplementary written submissions filed on behalf of the plaintiffs. The first are certain documents referred to in parts of paragraph 29 of the affidavit of E A Jacques, affirmed 23 September 2011. Those documents are mentioned in her affidavit. They are specifically referred to, although each is not identified by, for example, a certain date. They are identified as documents which were brought to a certain meeting and which were explained in the course of that meeting. They are specific documents and were properly requested under r 222.

1. Similarly, the documents the subject of paragraph 82 of that affidavit are documents mentioned in that affidavit in the required sense. 

1. The other documents sought are referred to in paragraphs 97, 99, 123 and 217 of the affidavit of the third defendant, affirmed 3 November 2010.  The document the subject of paragraph 217 might have been described as the document referred to at paragraph 216 but clearly it is the same document between the two paragraphs.  In my view, the plaintiffs are correct:  the documents sought are there mentioned.  They do not have to be referred to in any particular way in order to be mentioned. 

1. The order will be as proposed at exhibit RWB50 of the affidavit of Mr Barnes filed on 17 May 2012.  That includes an order for costs against the first and third defendants.  The plaintiffs gave some ground after their application was filed but their application was necessary nevertheless.