Love v Bahemia - [2010] WASC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LOVE -v- BAHEMIA [2010] WASC 102

CORAM: MASTER SANDERSON

HEARD: 18 MARCH 2010

DELIVERED : 20 MAY 2010

FILE NO/S: CIV 1083 of 2009

BETWEEN: ROSS MAITLAND LOVE
Plaintiff
AND
CAROL BAHEMIA
Defendant

Catchwords:

Practice and procedure - Application for further and better discovery - Turns on own facts

Legislation:

Nil

Result:

Further discovery ordered in part

Category: B

Representation:

Counsel:

Plaintiff: Mr A Metaxas
Defendant: Mr S M Murphy

Solicitors:

Plaintiff: Metaxas & Hager
Defendant: Freehills

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

Instant Nominees Pty Ltd v Redman [1987] WAR 218

MASTER SANDERSON: This was the defendant's application for further and better discovery. The chambers summons sought as the primary relief to strike out the plaintiff's claim on the basis that proper discovery had not been given. In the circumstances of this case that outcome was never a realistic possibility. In fact the application was concerned with the question of whether further discovery ought to be provided at all.
The necessary starting point is the facts of the case. The following summary of the facts is taken from the plaintiff's amended statement of claim filed 25 September 2009 and the defendant's present extant defence filed April 2009. The defendant is a legal practitioner. The plaintiff was at all material times the registered proprietor of certain land in Middle Swan. In January of 1994 part of the land was reserved under the Metropolitan Region Scheme. It is important to note that this section of land was not resumed. It was reserved. That meant no compensation was payable in relation to the reserved land unless and until the land was either sold after the making of the reservation or the West Australian Planning Commission refused permission to carry out a development on the reserved land.
Faced with this reservation of part of this property the plaintiff consulted Feilman Planning Consultants Pty Ltd (Feilman Planning). A Mr John Alexander Griffith was a director of Feilman Planning and a town planner and Mr Frank Arangio was employed by Feilman Planning and was also a town planner. The plaintiff alleges he was given negligent advice by Griffith and Arangio. Without going into detail the plaintiff alleges Griffith and Arangio should have advised him to seek subdivisional approval of the land thereby triggering his right to compensation. In fact the plaintiff alleges that no such advice was given; rather he was advised to do nothing. As a consequence the plaintiff alleges he suffered loss and damage. The loss and damage is particularised in par 18 of the statement of claim. Paragraph 18.4 reads as follows:
The plaintiff suffered loss and damage by the delay in being paid for the value of the reserved land. If Griffith and Arangio had acted with requisite skill, care and diligence the plaintiff would have been advised in 1994 to lodge an application for permission to carry out development on the reserved land which application would have been lodged and payment made to the plaintiff by 1 October 1995 when the value of the reserve land was $500,000. Had that sum been paid the plaintiff would have applied that payment in reduction of his mortgage liability secured against the land and the plaintiff would have not then incurred interest on $500,000 of his loan.
The plaintiff also claims an amount of $40,505 being the costs he paid Feilman Planning.
In October of 2001 the plaintiff commenced proceedings in this court against Griffith and Arangio. That was action CIV 2676 of 2001. The plaintiff changed solicitors a number of times. All the while the action made limited progress. On about 11 December 2007 the plaintiff engaged the defendant to act on his behalf. In January 2008 a registrar of this court issued a summons calling on the plaintiff to show cause why the action against Griffith and Arangio should not be entered on the Inactive Cases List. At a hearing on 7 February 2008 the matter was entered on the Inactive Cases List. The defendant then applied to have the matter removed from the Inactive Cases List. I heard that application and dismissed it. That effectively brought the plaintiff's action against Griffith and Arangio to an end. The plaintiff in these proceedings alleges the action came to an end as a result of the negligence of the defendant.
Both counsel agreed that if negligence on the part of the defendant were established the plaintiff's claim was for damages for loss of the chance to pursue his action against Griffith and Arangio.
In considering which documents might be relevant to this issue it is important to note that in assessing damages the court would not actually determine matters which would have been at issue between the plaintiff and Griffith and Arangio. In Instant Nominees Pty Ltd v Redman [1987] WAR 218 Burt CJ considered this question. There his Honour was dealing with a case in which the plaintiff alleged that the defendant a solicitor had allowed a cause of action to become time barred. In dealing with a question of damages his Honour said:
There are many cases in the books in which solicitors have been held liable in damages for failure to take some step which has resulted in their clients claim becoming statute barred. In such cases the court does not conduct a trial within a trial so is to determine whether the barred claim if prosecuted would on the balance of probabilities succeed or not, so that depending upon that decision the client would recover all or nothing. The consistent approach has been to deal with such cases on the basis that the client has lost a chance of succeeding and if such be the case the task of the trial court is to place a value on the chance so lost [266].
At the time of filing her application the defendant lodged three schedules. The first of these schedules set out the classes of documents the defendant was seeking. There were six in all. The first three classes of documents were described as:
All documents (including correspondence, pleadings, notices, applications, submissions, affidavits and other evidence) filed, served, sent or received by or on behalf of the plaintiff whilst Maitland Love in relation to the liability of Mr Love, Feilman Planning Consultants Pty Ltd, Mr Arangio and Mr Griffith or any of them towards each other and all claims and defences raised in the proceedings set out on the right.
Three separate sets of proceedings are then referred to. They are respectively (using the defendant's description):
The Feilman recovery proceedings - WA District Court matter number 4229 of 1999 (Feilman Planning Consultants Pty Ltd v Love); to WA Supreme Court matter FUL 76 of 2001 (Feilman v Love) - the appeal from the dismissal of the appeal from the summary judgment in the Feilman recovery proceedings; and WA Supreme Court matter COR 413 of 2001 (Love v Feilman) - the plaintiffs application for leave to file a defence and counterclaim in the Feilman recovery proceedings.
Some explanation as to how these various sets of proceedings arose is required. As I understand the position Feilman Planning sued the plaintiff for its fees - such fees being rendered in relation to advice given concerning the land. Feilman Planning applied for summary judgment. The application was opposed by the plaintiff on the basis he had a claim against Griffith and Arangio. The summary judgment application was successful. An appeal was then taken to a judge of the District Court and that appeal was unsuccessful. The plaintiff then appealed to the Full Court of this court and apparently that appeal was unsuccessful. It would seem thereafter the plaintiff applied for leave to file a defence and counterclaim in what the defendant in this action calls the Feilman recovery proceedings. Quite how that might have been possible is not clear. In any event it does appear as though there are a number of court files which bear upon the plaintiff's relationship with Feilman Planning and perhaps Griffith and Arangio. The defendant wants to see those files. The plaintiff either does not have the files or maintains that they are irrelevant.
This aspect of the application can be disposed of quite simply. Under O 36B r 13 of the Rules of the Supreme Court 1971 (WA) it is open to the court to direct the registrar to allow inspection of any documents held by the court. That is what should be done in this case. The plaintiff had no objective to this course of action. What the court file will not include is correspondence passing between the parties in relation to the various actions. But that correspondence is likely to be irrelevant. Inspection of the court files should be sufficient.
The fourth class of documents sought by the defendant is described as follows:
Copies of all valuation reports prepared in relation to the Land (as defined in the Amended Statement of Claim dated 25 September 2009) or any part thereof, including the reports identified below as items 12, 13, 19, 20 and 41, during the period 1994 to date.
A reference to sch B of the defendants' schedule shows that the defendant is referring to evaluation reports prepared in April 2001 item 12, September 2001 item 13, November 2004 item 19 and a report prepared in 2004 ‑ 2005 item 20. It is the defendant's case that these reports are related to a matter in issue - that is the valuation of the land from time to time.
The plaintiff's response to this application is to say that the defendant's defence is too vague - it does not specify when the defendant says the compensation would have been paid. On that basis to request all of these valuation reports is unreasonable.
I am satisfied these four reports ought to be discovered. They clearly relate to a matter in issue to the parties. It may be in due course the defendant will have to refine its pleading to sharpen the difference between the plaintiff and the defendant. It may be at that stage some or all of these reports will be found to be irrelevant. But as matters stand at the moment the four reports ought to be discovered.
There is fifth report referred to in the defendant's sch A which is found in sch C. That is item 41. It is not clear from the schedule or the affidavit material that this report exists. If it does it dates from September 2003. It is difficult to see how that report could be relevant and I would not order its discovery.
The fifth class of documents is described by the defendant as follows:
All documents indicating, evidencing or otherwise relating to the rates of interest payable by the plaintiff for the period 1 October 1995 to 31 August 1995 as referred to in the amended statement of claim dated 25 September 2009 para 18.4 and further particularised at para 5.2.3 of the plaintiffs answer to the defendants further and better particulars of the statement of claim dated 28 July 2009.
The defendant's position in relation to these documents is covered in pars 18 and 19 of the affidavit of Shane Michael Murphy sworn 4 November 2009 and filed in support of the application. Appearing as annexure SMM 6 to that affidavit is a copy of a facsimile dating from August 2001 which appears to set out details of the mortgage, the interest rate payable and the monthly repayment. A similar document appears as SMM 7. That document is dated 13 February 2007. Attached to that document is what appears to be a spreadsheet showing various payments made between July 1999 and December 2006.
In my view the plaintiff has disclosed all that is necessary to satisfy its discovery obligations. It is worth bearing in mind just what the plaintiff must prove to establish his case. He must lead evidence to show what his borrowings were during the relevant period and what interest was paid on those borrowings. Such evidence is fundamental to the claim. It must necessarily be supported by documentation. If the plaintiff does not produce the necessary documents he will not establish his claim and the action will fail. If this matter proceeds to trial at some stage witness statements will have to be provided. The plaintiff when providing witness statements will have to refer to the documents which support his damages claim. There is no prospect of the defendant being taken by surprise by some undiscovered document produced at trial. The issue of interest paid from time to time is fundamental. In my view there is no warrant for making further orders in relation to this issue. It would be open to the defendant if she regards this as a matter of fundamental importance to issue subpoenas returnable before trial directed at various mortgage brokers. But I see it being in no‑one interest to make orders against the plaintiff in this application.
Much the same comments apply in relation to the final class of documents. They are described in sch A at 6 as being:
All documents relating to the issues of: (a) whether the amount or amounts borrowed by the Plaintiff during the period 1 October 1995 ‑ 31 August 2005 remained in excess of $500,000; (b) if more than one relevant loan (relevant in the sense that it gave rise to mortgage liability pleaded at ASC paragraph 18.4) was in existence (ie commenced and not discharged) at any point during the period 1 October 1995 ‑ 31 August 1995, to which loan each amount each amount (principal and interest) related and the quantum of understanding amounts (principal and interest) for each relevant loan at any given time during the period 1 October 1995 ‑ 31 August 2005.
Further orders in relation to these documents if they exist ought not be made.
For these reasons I am prepared to make a discovery order with respect to four of the reports mentioned in item four of the defendant's schedule. I will also make orders allowing inspection of the court files. I will hear the parties as to the form of these orders and as to costs.