Keith Seeds P/L v Citic Aust Foods P/L & Ors No. Scgrg-98-674 Judgment No. S118

[1999] SASC 118

[1999] SASC 118

KEITH SEEDS PTY LTD V CITIC AUST FOODS PTY LTD AND ORS AND

Civil (Ex Tempore)

1      LANDER J.       This is an application brought by the plaintiff for the costs of an application brought on 10 November 1998 in which the plaintiff sought orders to cross-examine the fourth and fifth named defendants on their affidavits of discovery. 

2      On the 31 July 1998, I ordered that this matter proceed under rule 50 and at the same time ordered that the parties make discovery within 21 days.  On the application of all parties on the 1 September and then again on 29 September, I extended that obligation so as to allow the parties further time in which to make discovery. 

3      On the 14 October I ordered that the defendants make their discovery that day and at the same time ordered that they not file a list of documents after that day without leave of the court.  At the same time I also ordered that the first defendant make discovery on oath by the 21 October. 

4      The defendants complied with my order and made discovery on 14 October.  On 22 October an officer of the first defendant, Mr Cheng Zeng, made discovery on oath claiming that all further discoverable documents had been discovered.

5      This application was made on 10 November.  The application first came before me on 13 November when I adjourned the application until 19 November directing that the parties file affidavits in support and in opposition to the application. 

6      On the 25 November the first defendant filed a document entitled “a second supplementary list of documents” which is in fact a first supplementary list of documents.  On 4 December the second defendant filed a second supplementary list of documents. 

7      The matter came before me on a number of occasions until 15 December when I was advised that the plaintiff remained dissatisfied with the discovery which had been made.  I was advised that on 9 December the plaintiff had written to the Victorian solicitors acting for the defendants advising of the class of documents which it said should have been discovered.

8      On the 15 December 1998 I directed that the defendants respond to the letter from the plaintiff's solicitors by 14 January 1999.  The defendants did respond to that letter by filing a fourth supplementary list of documents which in fact followed a third supplementary list of documents.  At the same time Mr Cheng Zeng made a further affidavit in which he claimed that full discovery had been made.  There followed correspondence between the plaintiffs’ and the defendants' solicitors in relation to the adequacy of the discovery made by each of the defendants. 

9      The matter next came before me on 9 February 1999 when the application for cross-examination of the deponents was adjourned for argument to 17 February 1999.  In the meantime there was further communication between the solicitors for the parties and on the 17 February a further supplementary list of documents was filed by the second and third defendants.  The matter was further adjourned to 24 February and on 23 February the defendants’ solicitor, in an affidavit filed on the same day, said that she had advised the second and third defendants that further documents in their possession may be discoverable.  She also said that she had advised the office of the first defendant that there may be further discoverable documents in its power, custody or control. 

10     On the 24 February, on the same day as the matter was listed before me, the first defendant filed yet another supplementary list of documents. At that time counsel for the plaintiff sought a further adjournment of the application and indicated that the plaintiff would be seeking the costs of this application, even if this last list of documents satisfied the plaintiffs' various request for discovery. 

11     Today the plaintiff has advised me that the plaintiff no longer pursues the application to cross-examine the deponents to the affidavits of discovery but only seeks an order for costs. 

12     The order for costs is opposed by the solicitor for the defendants.  She has indicated that it would be appropriate to make any of the following orders; first, that the application for costs be reserved, secondly, if there is to be an order for costs that it be costs in the cause, thirdly and alternatively, if there is to be an order for costs, that the order be that each party bear their own costs. 

13     In making those submissions she relied on an affidavit sworn by her yesterday in which she indicated the defendants' reactions to the various steps taken by the plaintiff’s solicitors.  She said from the bar table that a number of documents have been discovered which in truth are not discoverable but they have been discovered so as to avoid any further arguments about discovery.  She also indicated that the state of the pleadings has made it extraordinarily difficulty for the defendants to make appropriate discovery.  She said that the defendants wished to avoid any applications in relation to the adequacy or otherwise of the pleadings so as to avoid both costs to the parties and the trouble to the court of deciding those matters.  She also said that her clients have been most anxious to avoid any discovery applications and in particular to avoid being brought to court to be cross-examined on their affidavits before the hearing of the trial. 

14     I can sympathise with the defendants in relation to their reaction to the application brought by the plaintiff but I must proceed in considering this application by having regard to the history of the action.  It seems to me that it must be clear on all accounts that before the application was brought, the defendants' discovery was not adequate.  I think that is demonstrated by the fact that since making the application the first defendant has filed four further lists of documents.  Even if some of those documents may not be strictly discoverable it does demonstrate, in my opinion, an inadequate response to the initial obligation for discovery. 

15     It would not be appropriate for me, on an application for costs, to determine whether or not the documents which have been discovered by the defendants are discoverable.  I must assume that a party only discovers those documents which are discoverable because that is the only obligation on the party.  In fact to discover documents which are not discoverable, in my opinion, could amount to an abuse of process.  A party should not discover documents which are not discoverable because to do so puts the opposing party to the cost of investigation of those documents or to a train of inquiry arising from those documents.  I therefore assume that the defendants have, since this application was made, made proper inquiries as to their obligations to make discovery and have satisfied those obligations.  I think it is clear that the defendants have been dilatory about their obligations to make discovery.  I think that is demonstrated by the fact that the first defendant has had to file five separate lists of documents. 

16     In my opinion it would not be appropriate to reserve the question of costs because I will be in no better position at any time either before or after the hearing of the trial, to decide this matter.  In my opinion it would not be appropriate to make an order for costs in the cause because this application, it seems to me, is quite a discrete interlocutory application which can be dealt with separately.  Moreover it would not be appropriate to make an order that each party bear their own costs.  I appreciate that the defendants have been put to significant costs in making discovery in this matter but that has mainly been caused, I think, by their delay in observing their obligations which arose as early as 31 July 1998. 

17     I agree that the plaintiff ought to have the costs of and incidental to the application on the 10 November 1998 and I so order.  The order will be that the defendants pay the plaintiff's costs of and incidental to the application by the plaintiff on 10 November 1998.  Certify for counsel.