Mills v Multigroup Distribution Services Pty Ltd

[1990] TASSC 142

Serial No B65/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Mills v Multigroup Distribution Services Pty Ltd [1990] TASSC 142; B65/1990

PARTIES:  MILLS, Larry ross
  v
  MULTIGROUP DISTRIBUTION SERVICES PTY LTD
  WILMOT EXPRESS PTY LTD

FILE NO/S:  MA78/1990
DELIVERED ON:  17 October 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  B65/1990
Number of paragraphs:  15

Serial No B65/1990
List "B"
File No MA78/1990

LARRY ROSS MILLS v MULTIGROUP DISTRIBUTION SERVICES PTY LTD
& WILMOT EXPRESS PTY LTD

REASONS FOR JUDGMENT  ZEEMAN J

17 October 1990

1. On 25 June 1990 Neasey J made an order requiring the defendants to make an affidavit stating whether any of the documents described therein were, or had at any time been, in the possession custody or power of the defendants and, if any of those documents were not then in the possession custody or power of the defendants, when they parted with the same and what had become of them. That order was made by consent. The order did not specify any period within which it was to be complied with.

1. On 2 August 1990 the Master made orders by consent requiring the defendants comply with that order of Neasey J within 14 days and providing that in default of such compliance the defence and counterclaim be struck out with the plaintiff then being at liberty to enter judgment against the defendants for damages to be assessed and costs to be taxed. There having been no compliance with the order of Neasey J within the time specified by the Master, on 27 August 1990 judgment was entered for the plaintiff against the defendants for damages to be assessed and costs.

1. By an application filed 29 August 1990 the defendants seek an order extending the time within which to appeal against the Master's order of 2 August 1990. On the same date, a notice of appeal was filed. I heard argument as to both the application to extend time and the appeal, it being agreed that if I were to extend time, I ought immediately to proceed to determine the appeal.

1. The plaintiff's action is one for what is described in the endorsement on the writ and the statement of claim as being damages for breach of contract. However, an analysis of the particulars of the "damages" claimed indicate that in reality the plaintiff's claim in part is one for remuneration in respect of past services at agreed rates and in part for damages for the wrongful termination by the defendants of the plaintiff's contract of employment. The defendants' counterclaim seeks to recover from the plaintiff remuneration allegedly paid by the defendants to the plaintiff under a mistake of fact and damages arising out of the breach by the plaintiff of a term to be implied into the contract of employment whereby the plaintiff was required to act in good faith and not abuse or betray the trust reposed in him by the defendants.

1. The parties were agreed that the procedure adopted by the defendants with a view to obtaining a setting aside of the judgment entered on 22 August 1990 was the appropriate procedure. That agreement is consistent with the decisions of the Full Court of the Supreme Court of Victoria in Composite Buyers Ltd v J C Taylor Constructions Pty Ltd [1983] 2 VR 311 and Maher v Wallace Dairy Co Ltd [1984] VR 129. To some extent the matters which are relevant to the exercise of the discretion on the application to extend time, are also relevant to a determination of the appeal, if it is permitted to proceed.

1. The relevant facts which appear from the affidavits and the agreed statement of facts may be summarized as follows.

(a)The plaintiff first requested the defendants to make discovery by letter of 21 November 1989.

(b)The defendants' initial list of documents was verified by affidavit sworn on 15 May 1990.

(c)The plaintiff, being dissatisfied with the content of that list of documents, made an application for further discovery which was served upon the defendants' solicitors on 15 June 1990.

(d)On 25 June 1990 Neasey J made the order for further discovery to which I have previously referred.

(e)On the same day the defendants' solicitors wrote to their Sydney principals advising them of the order made by Neasey J

(f)On 26 July 1990 the defendants' solicitors wrote to their Sydney principals forwarding a copy of the interlocutory application upon which the Master's orders were ultimately made. That letter was transmitted by facsimile.

(g)By letter of 26 July 1990 the Sydney principals provided instructions as to further discovery to the defendants' solicitors. The solicitors did nothing by way of acting on those instructions until very shortly before the time limit fixed by the Master's order expired.

(h)On 2 August 1990 the Master made the order sought to be appealed from. Although the apprentice–at–law who had the immediate carriage of the matter in the office of the defendants' solicitors had no instructions so to do, she consented to the making of the orders which were made.

(i)The defendants' solicitors advised neither the defendants nor the Sydney principals of the orders made by the Master.

(j)On 15 August 1990 the apprentice–at–law prepared a draft further list of documents and on the following day she forwarded copies thereof to the plaintiff's solicitors and to the Sydney principals.

(k)On 22 August 1990 judgment was entered for the plaintiff for damages to be assessed.

(l)On 29 August 1990 an officer of the defendants swore an affidavit of further discovery which fell short of satisfying the requirements of the order made by Neasey J

(m)On 14 September 1990 an officer of the defendants swore an affidavit of further discovery which appears to satisfy the requirements of the order made by Neasey J

(n)To a certain extent (and to what the extent is a matter in dispute between the parties) the defendants' initial list of documents was deficient with not all deficiencies having been the subject of the further discovery which Neasey J ordered to be made.

(o)There are real issues to be tried in this action. If certain of the facts deposed to by Mr Bates are established as a matter of fact, then it is not unlikely that the plaintiff would wholly fail in his action and would be liable, at least to some degree, on the counterclaim.

1. The evidence is silent as to why the apprentice consented to the making of the order by the Master; as to why the order having been made, she failed to communicate that fact to her firm's Sydney principals; and why, having been in possession of instructions enabling her to comply with the terms of the order made by Neasey J since before the Master made his order, she took no steps with a view to putting the defendants in the position of complying with the order. Certainly, her actions and inaction amounted to significant carelessness. This may well be explained by her inexperience which I infer from her status as an apprentice–at–law. Should the plaintiff now be entitled to retain the benefit of a judgment which he would not have obtained were it not for the apprentice's negligence and which he might never obtain if the action is permitted to go to trial? Prima facie the circumstances might be said to give rise to an occasion for the favourable exercise of my discretion. However, counsel for the plaintiff has made a number of submissions upon the basis of which it is said that I ought not to exercise my discretion in favour of the defendants. It is appropriate to examine those submissions.

1. It was submitted that even now it is clear that the defendants have not discovered all documents which ought to have been discovered. It is conceded that that is so. The existence of such further documents appears from affidavits filed in the proceedings before me. It is relevant to note that the defendants were first asked to make discovery more than 10 months ago. I am not prepared to infer that there has been any deliberate concealment by the defendants of discoverable documents. A more likely explanation for the failure to make full discovery is a lack of appreciation on the part of the defendants and/or their legal advisers as to precisely what is required to be contained in a list of documents. In any event, the continuing inadequacy of discovery is not one which constitutes a continuing breach of the order for the discovery of specific documents made by Neasey J but rather a failure of the defendants' general obligations. It is indicative of general dilatoriness on the part of the defendants and tends to go to the question of delay generally.

1. The plaintiff submitted that the fact that the order made by Neasey J was only complied with on 14 September 1990 was a relevant consideration. It is, of course, relevant because it indicates that the failure to comply with the order was continued for a significant period of time. However, the length of time which elapsed appears to be a direct consequence of the negligence of the apprentice. The list of documents prepared by the apprentice and which was verified by the affidavit of Mr Lyons sworn 29 August 1990, suggests that at the time of its preparation she did not direct her mind to precisely what was required by his Honour's order. The delay up until 29 August 1990 was taken up by her preparing the list of documents and the affidavit, having it approved and having it sworn without apparently being conscious of the fact that a time limit had expired. The affidavit of Mr Lyons sworn 14 September 1990 was the first endeavour at complying with the requirements of the order made by Neasey J in the precise terms in which that order was made.

1. Counsel for the plaintiff examined the relative importance of the various issues raised by the claim and counterclaim. In particular, counsel referred to the relative smallness of the counterclaim. I should say that it may be doubted as to whether or not the defendants are precluded from raising the subject matter of the counterclaim by way of a separate action. In that sense the counterclaim may not yet be dead. Be that as it may, the fact is that upon the material before me very real issues of fact are sought to be determined in the action both on the claim and on the counterclaim.

1. The plaintiff relied upon general delay on the part of the defendants and I have already made reference to the specific matters of delay referred to. Where a particular explanation for delay has been proffered, the delay has been that of the defendants legal advisers rather than that of the defendants themselves. Where no explanation has been offered (in particular as to the long period of time which elapsed from the initial request for discovery until the affidavit verifying the initial list of documents sworn on 15 May 1990) I have no material before me upon which I can find who was responsible. Counsel for the plaintiff submitted that the defendants' general manager, Mr Bates, knew of the order made by Neasey J and of the further application. I am not satisfied that the evidence discloses that state of knowledge on the part of Bates but even if it does, it would not have been unreasonable for Mr Bates to rely upon his solicitors to attend to such matters as required attention.

1. Counsel for the plaintiff in his able argument put everything that was capable of being put to support the proposition that I should not exercise my discretion in favour of the defendants. Nevertheless. the whole of the circumstances lead me to the conclusion that I should exercise my discretion in the defendants' favour.

1. I propose extending the time limited for appealing against the Master's order until and including 29 August 1990 (being the date upon which the notice of appeal was filed).

1. I turn to the appeal. In the circumstances I must deal with the application before the Master afresh by way of making such order as I consider appropriate. I consider that I should order that the order made by Neasey J on 25 June 1990 be complied with within 7 days. I do not consider it appropriate to make any further order on that application. In particular I will not make a self executing order of the type made by the Master. It is rarely appropriate to make such an order. It is not appropriate[i] in this case.

1. My orders will be as follows—

1That the time limited for appealing against the Master's order of 2 August 1990 be extended until and including 29 August 1990.

2That the appeal be upheld and that in lieu of the orders made by the Master that the defendants comply with order made by Neasey J on 25 June 1990 within 7 days.

3That the judgment entered on 22 August 1990 be set aside.

tasInLaw edit: The judgment has "approrpiate".

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