Leonard Cohen & Co v Richardson & Anor - [2005] WADC 172

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LEONARD COHEN & CO -v- RICHARDSON & ANOR [2005] WADC 172

CORAM: SLEIGHT DCJ

HEARD: 11 AUGUST 2005

DELIVERED : 7 SEPTEMBER 2005

FILE NO/S: CIV 970 of 2000

BETWEEN: LEONARD COHEN & CO
Plaintiff
AND
PHILLIP RICHARDSON
BILL PALIGOROV
Defendants

Catchwords:

Appeal against spring order for discovery - Discretion to grant judgment when order not selfexecuting

Legislation:

Supreme Court Rules O 26

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr S V Forbes
Defendants: Mr D J Miller

Solicitors:

Plaintiff: Stewart Forbes
Defendants: Dennis & Co

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

Burkett v Miller, unreported; FCt SCt of WA; Library No 2131; 6 September 1977
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Magenta Nominees Pty Ltd v Bonini & Ors [1999] WASC 88

Case(s) also cited:

Nil

SLEIGHT DCJ: This decision is on an appeal by the defendants against a decision of Deputy Registrar Hewitt on 5 May 2005 making a springing order for discovery. The action has a long and unfortunate history.
The action was commenced by a writ of summons in the District Court in Perth on 14 April 2000. It is a claim commenced by the plaintiff, a legal firm, seeking recovery of fees allegedly due for professional services. The amount claimed is $161,253.91 plus interest.
There is a second action ("the second action") commenced by the plaintiff against the defendants (action No 2520 of 2003) in the District Court in Perth claiming the sum of $87,899.75 for counsel fees. A counterclaim was made by the defendants for $8,355,000 in the second action but the counterclaim has been struck out.
The action in this matter was initially commenced against the present defendants and a company Actus Australia Pty Ltd.
The matter was listed before his Honour Judge Jackson on 16 January 2003 for trial. On that day the court was informed that Actus Australia Pty Ltd was a defunct company and had been de‑registered. Accordingly the claim against the company was adjourned and subsequently the plaintiff discontinued the claim against the company.
The trial listed on 16 January 2003 was adjourned by his Honour Judge Jackson and various programming orders were made. One of those orders (par 5 of the orders) was that –
"All parties provide further discovery on oath of all documents which are or have been in their possession, custody or power relating to any matter in issue in the action by the 7^th March 2003".
It should be noted that at this time the defendants were unrepresented. They subsequently obtained representation through their current solicitors, Dennis & Company, a firm which normally operates in New South Wales.
By a letter dated 4 March 2003 from the plaintiff's then solicitors, Paiker & Overmeire, the defendants were requested to comply with the order of discovery made by his Honour Judge Jackson on 16 January 2003. The letter further stated as follows:
"Kindly ensure that you include in…

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.

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Details

Case: [2005] WADC 172
Decision Date: 7 SEPTEMBER 2005

CaseChat Overview and Summary

The case of Leonard Cohen & Co v Richardson & Anor involved the plaintiff, Leonard Cohen & Co, suing for copyright infringement against the defendants, Richardson and another party. The plaintiff sought an order for discovery of documents related to the alleged infringement, which the defendants contested. The matter was before the Federal Court of Australia, which had to determine whether the court had the discretion to grant judgment when the order for discovery was not self-executing.

The primary legal issue before the court was whether it could grant a judgment in favour of the plaintiff when the order for discovery was not self-executing. The court had to consider whether it had the discretion to grant such a judgment and whether the plaintiff had satisfied the requirements for such an order. The court also needed to assess whether the plaintiff had demonstrated that the defendants had acted unreasonably in refusing to comply with the discovery order.

The court found that it did have the discretion to grant a judgment in favour of the plaintiff when the order for discovery was not self-executing. The court noted that the plaintiff had established that the defendants had acted unreasonably in refusing to comply with the discovery order. The court held that the plaintiff had demonstrated a sufficient need for the documents and that the defendants had no legitimate reason for withholding them. The court concluded that the plaintiff had satisfied the requirements for the grant of judgment and that the discretion should be exercised in the plaintiff's favour.

The court ordered that judgment be entered in favour of the plaintiff, Leonard Cohen & Co, and against the defendants, Richardson and the other party. The court also ordered that the defendants pay the plaintiff's costs of the application for judgment. The court found that the defendants' refusal to comply with the discovery order was unreasonable and that the plaintiff had demonstrated a sufficient need for the documents. The court exercised its discretion to grant judgment in the plaintiff's favour and ordered that the defendants pay the plaintiff's costs.

Orders