Masmos Pty Ltd t/a Friendly Grocer Logan v Desplace & Co Pty Ltd

[2013] QCAT 591

CITATION: Masmos Pty Ltd t/a Friendly Grocer Logan v Desplace & Co Pty Ltd [2013] QCAT 591

PARTIES:	Masmos Pty Ltd (trading as Friendly Grocer Logan) (Applicant)
v
Desplace & Co Pty Ltd (Respondent)

APPLICATION NUMBER: RSL057-12

MATTER TYPE: Retail shop leases matters

HEARING DATE: 30 October 2013

HEARD AT: Brisbane

DECISION OF: Dr J R Forbes, Member

DELIVERED ON: 4 November 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.       The applications for non-party discovery are dismissed.

2.       Each party shall file and serve upon the other party a true and complete list of all documents in their possession or power, directly related to the issues for trial by 4:00 pm on 18 November 2013.

3.       The said lists shall be verified by affidavit sworn or affirmed by a director of the respective parties.

CATCHWORDS:

RETAIL SHOP LEASES – application for lists on party and party discovery – application for non-party discovery – order for verified lists as between parties – whether relevance of non-party material shown – whether a fishing application – whether sufficiently specific – application for non-party discovery refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 32, 63

Retail Shop Leases Act 1994 (Qld), s 46A
Uniform Civil Procedure Rules 1999 (Qld), rr 243, 244, Form 21

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136
Commonwealth v Albany Port Authority [2006] WASCA 185
Commissioner for Railways v Small (1938) 38 SR(NSW) 564
Cowley v Queensland Building Services Authority [2011] QCAT 98
Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASCA 123

Kljaic v Queensland Building Services Authority [2011] QCAT 87

Lebon v Lake Placid Resort Pty Ltd [1995] 1 Qd R 24

Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619

R v Sergi [1998] 1 Qd R 536

Rossi Pty Ltd  v Ballymore Tower Pty Ltd [1984] 2 Qd R 167
Smith v Queensland Building Services Authority [2011] QCAT 66
Southern Pacific Hire Services v Southern Pacific Hotel Corp [1984] 1 NSWLR 710

Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921

Wm Collin & Sons Pty Ltd v T & T Mining Corporation Pty Ltd [1971] Qd R 427

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This is an application[1] by Masmos Pty Ltd (Masmos) for production of documents by the respondent company (Desplace & Co) and by Vaughan Desplace and Zarina Desplace, as specified in Schedule A to the application. It is ancillary to a claim based on section 46A of the Retail Shop Leases Act 1994 (the RSLA) for compensation for loss of profits.

   [1]Application for Miscellaneous Matters filed 6 September 2013, pursuant to QCAT Act s 63.

2. Masmos alleges that Desplace & Co, Masmos’ landlord, acted unconscionably by assisting one of its directors,  Vaughan Desplace, to open and operate a shop in close proximity to, and in competition with Masmos’ convenience store in Jacaranda Avenue, Logan.

3. The application for discovery filed on 6 September 2013 seeks directions that: 

   (i)Desplace Co provide a list of documents in its possession[2] directly relevant to the issues in this proceeding;

   (ii) Desplace Co allow Masmos to inspect and/or copy any of the documents in the said list; and

   (iii) Pursuant to section 63 of the QCAT Act Vaughan Desplace and Zarina Desplace produce documents[3] relating to themselves and First Choice Tobacco and Smokey’s Chicken and Kebabs respectively, more particularly described in Schedule A to the application.

   [2]        The common form words “or control” do not appear.

   [3]        The qualifying phrase “in their possession or control” does not appear.

4. According to usual practice, each party has already been directed to file and serve all its witness statements, with relevant documents attached.[4] However, it appears that Masmos fears or suspects that existing directions may not ensure production of all directly relevant material. The mistrust may be mutual. The attitude of Desplace & Co is that, if it is directed to prepare a further list, and to give access as sought by Masmos, then the latter should be directed to do the same.

   [4]        Directions made on 7 January 2013.

5. I shall give directions in those terms, requiring each list to be verified by affidavit.

6. I turn now to the applications for third party (or non-party) discovery by Vaughan and Zarina Desplace. I decline to give those directions for the following reasons.

7. The application for third party discovery is inappropriately directed to the respondent company, not to Mr and Mrs Desplace personally. After all, it is to them, not to the company, to whom Masmos desires the directions to be given.[5]

   [5]        Compare Uniform Civil Procedure Rules 1999 rr 243, 244 and Form 21.

8. The relevance of the broadly-described records of the two rival businesses is not demonstrated.

9. If there is substance in Masmos’ allegation that Desplace & Co unconscionably assisted either or both Vaughan or Zarina Desplace to compete with Masmos, and if the verified lists to be exchanged by the parties are complete and correct, any documents directly relevant to that issue will appear in, or be indicated by the documents disclosed by Desplace & Co. If no such document exists, it would be unnecessary and oppressive to require disclosure of the material outlined in annexure “A” to the application. It may be that Masmos has not yet exhausted its rights of discovery against the respondent company.[6] It has not demonstrated a necessity[7] to go beyond the records of the respondent.

   [6]        See Wm Collin & Sons Pty Ltd v T & T Mining Corporation Pty Ltd [1971] Qd R 427 at

   442 per W B Campbell J.

   [7]        Rossi Pty Ltd  v Ballymore Tower Pty Ltd [1984] 2 Qd R 167 at 178.

10. In my view, the application for non-party discovery is an improper attempt at a fishing expedition[8]. Suspicion[9] is not knowledge. It is essential to recognise that the principle against “fishing”, which applies to subpoenas[10], is stricter where party and party discovery is concerned[11], and (understandably) stricter still in relation to discovery by a non-party.[12] There was no such provision in Queensland law until 1965, and the power must be exercised circumspectly, bearing in mind that few non-parties share the commitment to litigation that the parties themselves experience.[13]

    [8]        I.e. attempting to “find out something of which he knows nothing now, which might

    enable him to make a case of which he has no knowledge at present”: Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 575 per Jordan CJ, or a situation in which “a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not”: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 per Owen J.

    [9]        As expressed by Masmos, submissions in reply, 26 September 2013, “Disclosure by

    Zarina Desplace”, paragraph 1.

    [10]        Southern Pacific Hire Services v Southern Pacific Hotel Corp [1984] 1 NSWLR 710;

    Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921; R v Sergi [1998] 1

    Qd R 536.

    [11]        Material relevant only to credit may be subpoenaed: Marsden v Amalgamated

    Television Services Pty Ltd [1999] NSWSC 619 at [409]; Commonwealth v Albany Port Authority [2006] WASCA 185; Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at 143-144; [2001] FCA 60 at [25].

    [12]        Wm Collin & Sons Pty Ltd v T & T Mining Corporation Pty Ltd [1971] Qd R 427 at 435;

    Rossi Pty Ltd v Ballymore Tower Pty Ltd [1984] 2 Qd R 167; Lebon v Lake Placid Resort Pty Ltd [1995] 1 Qd R 24; Uthmann v Ipswich City Council [1998] 1 Qd R 435.

    [13]        Wm Collin & Sons Pty Ltd v T & T Mining Corporation Pty Ltd [1971] Qd R 427 at 435.

11. Another aspect of the strict control of “fishing” in non-party records is the requirement that demands for non-party discovery be more specific than applications for party and party discovery.[14] Several applications in this Tribunal have failed on this ground.[15] The particulars in the annexure to the application, such as they are, can hardly be described as specific,[16] and a belated attempt to rescue them[17] is not a signal improvement.

    [14]Fairfax Media Publications Pty Ltd v Western Australian Rugby Union Inc [2008] WASCA 123 at [31]; Rossi Pty Ltd v Ballymore Tower Pty Ltd [1984] 2 Qd R 167 at 177; Lisle v Rasmussen [1971] QWN 3 per Hoare J: “It seems to me that the rule is intended primarily to apply to particular documents and certainly is not intended to provide for a general discovery as would be available as between parties to the action.”

    [15]        Cowley v Queensland Building Services Authority [2011] QCAT 98; Kljaic v

    Queensland Building Services Authority [2011] QCAT 87; Smith v Queensland Building Services Authority [2011] QCAT 66.

    [16]        E. g. “all invoices and receipts for the purchase of stock for Smokey’s Kitchen & Kebab

    business”.

    [17]        Masmos’ submissions in reply, 26 September 2013, “Disclosure by Zarina Desplace”,

    paragraph 2.

    ORDERS

    1.     The applications for non-party discovery are dismissed.

    2.     Each party shall file and serve upon the other party a true and complete list of all documents in their possession or power, directly related to the issues for trial by 4 pm on 18 November 2013.

    3.     The said lists shall be verified by affidavit sworn or affirmed by a director of the respective parties.