Koscardi, Karoly v Elegant Tiles Pty Ltd
[1996] FCA 251
•12 APRIL 1996
CATCHWORDS
PRACTICE AND PROCEDURE - Application for discovery - costs - no question of principle.
Karoly Koscardi v Elegant Tiles Pty Ltd, Porsan Australia Pty Ltd, National Australia Bank Ltd, Edward Morales & Pedro Tejero Morales, Elegant Porcelain Pty Ltd and Elegant Marble & Granite Pty Ltd
No. QG67 of 1993
Cooper J, Brisbane, 12 April 1996
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QG67 of 1993
BETWEEN: KAROLY KOSCARDI
Applicant
AND: ELEGANT TILES PTY LTD
ACN057 256 541
First Respondent
AND: PORSAN AUSTRALIA PTY LTD
ACN 056 107 192
Second Respondent
AND: NATIONAL AUSTRALIA BANK LTD
Third Respondent
AND: EDWARD MORALES & PEDRO TEJERO MORALES
Fourth Respondents
AND: ELEGANT PORCELAIN PTY LTD
ACN 057 050 218
Fifth Respondent
AND: ELEGANT MARBLE & GRANITE PTY LTD
ACN 057 284 992
Sixth Respondent
JUDGE MAKING ORDER: Cooper J
WHERE MADE: Brisbane
DATE OF ORDER: 12 April 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
No order for further discover be made on the notice of motion.
There be no order as to costs in favour of the third respondent.
The applicant's costs of and incidental to today be the applicant's costs in the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QG67 of 1993
BETWEEN: KAROLY KOSCARDI
Applicant
AND: ELEGANT TILES PTY LTD
ACN057 256 541
First Respondent
AND: PORSAN AUSTRALIA PTY LTD
ACN 056 107 192
Second Respondent
AND: NATIONAL AUSTRALIA BANK LTD
Third Respondent
AND: EDWARD MORALES & PEDRO TEJERO MORALES
Fourth Respondents
AND: ELEGANT PORCELAIN PTY LTD
ACN 057 050 218
Fifth Respondent
AND: ELEGANT MARBLE & GRANITE PTY LTD
ACN 057 284 992
Sixth Respondent
CORAM: Cooper J
PLACE: Brisbane
DATE: 12 April 1996
REASONS FOR JUDGMENT
This is an application by the third respondent for further and better discovery in relation to documentation alleged to be in the possession of the legal advisers
of the applicant in relation to the giving or not giving of advice concerning the issue of a guarantee. The first demand for the documentation on the material before me was made in a letter, exhibit A to the affidavit of Harry Porter McCay, which letter was transmitted or sent on 9 April 1996 demanding discovery of certain categories of documents set out in paragraphs (a), (b), (c) and (d) of the letter. The letter required an undertaking by 4 o'clock on that day that there be compliance with the request or an application would be made to the court.
The letter was responded to on 10 April 1996 by the solicitors for the applicant wherein they said, in part :-
"This correspondence is the first occasion that the subject matter has been raised by you notwithstanding that discovery has been complete for over a year, many interrogatories have been answered by your client during the proceedings, and that you certified to both the Registrar and Justice Cooper that the matter was in all respects ready for trial.
We have referred the matter to our client for instructions and to counsel and when we receive advice and instructions we will revert to you. In all the circumstances there is no prospect of the undertakings being sought by you being given by 4 pm today as requested. In the event of an application to the court we will be instructed to resist same and required notice in that regard."
The motion was then filed on 11 April 1996 in circumstances where pleadings in this matter had closed on 30 September 1993, the applicant's affidavits of evidence, from a perusal of the file, seem to have been filed in late 1994, and that at a review held by the District Registrar on 27 July 1995 the parties indicated that except for some minor matters of discovery, not including the present one, the matter was in all respects ready for trial. On that basis, the matter was allocated a trial date, being next Monday 15 April 1996.
No satisfactory explanation has been given as to why this application was not brought at an earlier point in time prior to the setting of the trial date. It is said that the application was justified because the documents were produced. However, it should be noted that no concession was made that there was an obligation in law to provide the documentation, or that in any event the application would have been successful. Upon the face of the material it is abundantly clear that the demands made were too wide, and to that extent the notice of motion would have failed if it had been sought to rely upon discovery in the breadth of the terms contended for in the notice of motion. It is also clear, in all the circumstances, that the conduct on the part of the applicant upon receipt of the demand of 9 April 1996 was entirely reasonable.
Therefore, in my view, having regard to the circumstances on which the notice of motion was brought and the substance of the relief sought on it, the justice of the situation is satisfied if there be no order as to costs in favour of the applicant on the notice of motion (the third respondent). So far as the respondent to the notice of motion is concerned, it will be sufficient, in my view, if the costs of and incidental to today be the applicant's costs in the proceedings.
THE COURT ORDERS THAT:
No order for further discover be made on the notice of motion.
There be no order as to costs in favour of the third respondent.
The applicant's costs of and incidental to today be the applicant's costs in
the proceedings.
I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.
Date: 17 April 1996
Associate
Counsel for the Applicant: Mr G Brandis
Solicitors for the Applicant: Flower & Hart
Counsel for the Respondent: Mr R S Litster
Solicitors for the Respondent: John M O'Connor & Company
Date of Hearing: 12 April 1996
Place of Hearing: Brisbane
Date of Judgment: 12 April 1996
0
0
0