Mirco v Pym [No 2]
[2016] WADC 1
•6 JANUARY 2016
MIRCO -v- PYM [No 2] [2016] WADC 1
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 1 | |
| Case No: | CIV:4146/2014 | 1 DECEMBER 2015 | |
| Coram: | PRINCIPAL REGISTRAR MELVILLE | 6/01/16 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The defendants produce their documents for inspection at the District Court Registry, Perth | ||
| PDF Version |
| Parties: | EVELYN HILDA MIRCO BARBARA ANN PYM ANTHONY AUSTIN PYM |
Catchwords: | Practice and procedure Further and better discovery Relevance Time and place of inspection |
Legislation: | Oaths, Affidavits and Statutory Declarations Act 2005 Rules of the Supreme Court 1971 |
Case References: | Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 Live Long and Prosper Investments Pty Ltd v Jeffrey Smith and Maria Wesley as trustee for JL Smith Family Trust [2015] WADC 1 Mulley v Manifold (1951) 103 CLR 341 Perpetual Trustees Company Ltd v Burniston [2012] WASC 26 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BARBARA ANN PYM
1st Defendant
ANTHONY AUSTIN PYM
2nd Defendant
Catchwords:
Practice and procedure - Further and better discovery - Relevance - Time and place of inspection
Legislation:
Oaths, Affidavits and Statutory Declarations Act 2005
Rules of the Supreme Court 1971
Result:
The defendants produce their documents for inspection at the District Court Registry, Perth
Representation:
Counsel:
Plaintiff : Ms P Comer
1st Defendant : In Person
2nd Defendant : In Person
Solicitors:
Plaintiff : Avon Legal
1st Defendant : Not applicable
2nd Defendant : Not applicable
Case(s) referred to in judgment(s):
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Live Long and Prosper Investments Pty Ltd v Jeffrey Smith and Maria Wesley as trustee for JL Smith Family Trust [2015] WADC 1
Mulley v Manifold (1951) 103 CLR 341
Perpetual Trustees Company Ltd v Burniston [2012] WASC 26
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
1 PRINCIPAL REGISTRAR MELVILLE: This action was placed on the inactive cases list due to the failure to enter the case for trial within the prescribed time.
2 The plaintiff has now brought a chamber summons seeking the action be removed from the inactive cases list and resetting the entry for trial milestone, together with an application for orders as follows:
3. The defendants' provide further and better list of discovery as to all documents relating to the sale of the property situated at 6 Narran Place Swanview including but not limited to;
(a) all correspondence between the defendants and the real estate agent who sold the property;
(b) the offer and acceptance;
(c) the settlement statement;
(d) the defendant's bank account records for the period 1 May 2015 to 1 October 2015; and
(e) home loan account records (for the property situated a 6 Narran Place, Swanview and for the property situated at 40 Marginata Road, Parklands WA for the period 1 May 2015 to 1 October 2015,
- on or before 25 October 2015.
4. The defendants make available the documents contained in their list of discovery and further and better list of discovery as required to pursuant to 3 above for inspection at District Court at a date to be fixed.
5. In the alternative to 4, the defendants make available the documents contained in their list of discovery and further and better list of discovery for inspection at a place which includes photocopying facilities (such a place to be advised in writing by 25 October 2015) by no later than 30 October 2015;
6. The defendants pay the costs of an incidental to the application.
3 Orders were made removing the case from the inactive cases list on 1 December 2015 with extempore reasons being given at that time and my decision in respect of orders 3, 4 and 5 being reserved.
4 The plaintiff alleges she is entitled to the sum of $105,000 following a loan of that amount to the defendants which was repayable by no later than 1 September 2014.
5 The plaintiff's case more particularly is that in January 2013 she gave the defendants the sum of $105,000 for safe keeping. In May 2013 the plaintiff and defendants entered into an agreement whereby the plaintiff loaned that sum to the defendants for the purchase of a property. It is alleged the loan was used as a deposit on a property described as the 'Parklands Property'. The terms of the loan were that the sum of $105,000 would be come due and payable by 1 September 2014 or upon the sale of a property owned by the first defendant, being the 'Swanview Property', which ever was the earlier. By par 8 of the statement of claim the plaintiff alleges that in September 2014 she demanded payment of the loan amount on the basis the Swanview Property had not been sold.
6 By way of defence the defendants admit the sum of $105,000 was given to them for safekeeping but deny there was ever a loan agreement.
7 By par 16 of the defence they allege, in the alternative, that if there was a loan agreement it is void at law and unenforceable because of the bankruptcy of the plaintiff.
8 The defendants also counterclaim. They appear to allege a tenancy agreement whereby the plaintiff was permitted to reside in the Parklands Property in consideration of her paying $150 per week in rent, payment of various outgoings, and watering and feeding the poultry. The plaintiff was to be permitted to reside in the house on the Parklands Property and then in a completed granny flat on the property which would be a 'moveable flat', and which flat would be become the property of the plaintiff.
9 They claim damages in the amount of $150 per week from around 3 March 2014 when the plaintiff left the Parklands property or in the alternative damages to be assessed
10 As a preliminary point there was an issue taken regarding the admissibility of affidavit evidence filed on behalf of the plaintiff, more particularly whether the affidavits had been sworn in accordance with the provisions of the Oaths, Affidavits and Statutory Declarations Act2005. This resulted in one affidavit filed on behalf of the plaintiff being struck out. Ultimately the evidence presented by way of affidavit in support of the plaintiff's application was constituted by that of Patricia Robyn Comer dated 15 October 2015 and affidavits of Jason Don Greeff dated 22 October 2015 and 11 November 2015.
11 The defendants filed two affidavits, one dated 15 October 2015 and one dated 24 September 2015.
12 It is convenient to deal with the defendants affidavits first. The first affidavit appears to principally address the adequacy of the plaintiff's list of discoverable documents and the background to the defendants' objection to being required to bring their documents to any place other than the City of Mandurah library for inspection and copying. I have no formal application brought by the defendants in relation to the adequacy of the plaintiff's affidavit of discovery and accordingly I do not propose to deal with it. The rules require any application to the court of this nature to be made pursuant to the Rules of the Supreme Court 1971 (RSC) O 59 by way of a chambers summons (Form 77), as was done by the plaintiff. The purpose of this requirement is that it puts both the other party and the court on notice of the application. This gives the other party the opportunity to file any evidence they may wish to file to defend their position and gives the court the opportunity to properly consider the legal principles that might be applied to the application and any evidence filed in respect thereof. Further, there is a court fee associated with bringing these applications which should not be allowed to be avoided by making applications that can only be found within the body of an affidavit.
13 The second of the affidavits deals with the question of the plaintiff's bankruptcy. This issue was addressed by me as it raised a question as whether the court could even deal with this interlocutory application, and for that matter the whole action including the counterclaim. This issue was in the end put to rest by a further affidavit of Jason Don Greeff dated 11 November 2015 which produced at annexure GJ1 a report from the Australian Government Australian Financial Security Authority showing that the bankruptcy of the plaintiff was annulled on 3 December 2014, some 13 days before the writ was filed in the District Court Registry. The effect of the annulment is to restore the plaintiff to the position she was prior to the bankruptcy and in those circumstances I was satisfied that the plaintiff had the legal capacity to bring this action in her own name (and for that matter, that the defendants could pursue their counterclaim).
14 Accordingly, the only issues that I need to address are the issues relating to the plaintiff's request for orders in respect of further and better discovery of documentation relating to the sale of the Swanview Property in the period 1 May 2015 and 1 October 2015, and the manner of inspection of those documents discovered by the defendant.
Request for further and better discovery of specific documents
15 As I have previously observed in Live Long and Prosper Investments Pty Ltd v Jeffrey Smith and Maria Wesley as trustee for JL Smith Family Trust [2015] WADC 1, an application for further and better discovery of particular documents is governed by RSC O 26 r 6. Order 26 r 6(3) requires the application to be supported by an affidavit stating the belief of the deponent that the first defendants have, or at some time had, in their possession custody or power the documents or class of documents referred to in the chamber summons. In the event the applicant can successfully persuade the court that an order should be made, the order is made pursuant to the provisions of O 26 r 6(1) which would require the defendants to state whether the specified or described document or class of documents is or at any time has been in their possession, custody or power and if not then in their possession, custody or power, when they parted with it and what had become of it.
16 In Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60, Master Newnes considered the manner in which O 26 r 6 ought to be interpreted. In [3] he said:
In determining whether to make an order for further discovery, the court must have reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered: Beecham Group Pty Ltd v Bristol Myers Co [1979] Vic Rp 27; [1979] VR 273. The court must be able to infer from the nature of the document in question that it is relevant; it will not speculate as to its relevance. Relevance may either appear from the nature of the document or its contents, and if the latter then there must be a prima facie case as to the contents before an order for further discovery will be made; Astra-National Productions Ltd v Neo-Art Productions Ltd [1928] WN 218 at 219 … where an application is made in respect of the document referred to and a document already discovered (the relevance of the latter being conceded by its discovery) it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is relevant; see Compagnie Financiere et Commereciale Du Pacifique v Peruvian Guano Co [1882] 11 QBD 55; I regard the test of relevance to be whether it is reasonable to suppose the document contains information which may either directly or indirectly advance the requesting parties case or damage his adversary's case or which may fairly lead to a chain of enquiry which may have that consequence.
17 The existence of any relevant document would normally be determined by reference to the pleadings but regard can be had to the conduct and admissions of the parties and the nature of the action.
18 The decision in Youlden Enterprises Pty Ltd was applied by Edelman J in Perpetual Trustees Company Ltd v Burniston [2012] WASC 26 who summarised the position as requiring three criteria to be satisfied in order to obtain the order sought. Those are whether:
1. The court has reasonable grounds for being fairly certain that the documents sought (or class of documents sought) are in existence;
2. Those documents sought are relevant; and
3. Those documents ought to have been disclosed.
19 The test for whether a document is relevant or relates to any matter in question has best been defined in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 where at [63] it was said:
It seems to me that every document relates to the matters in question in the action which not only be evidence upon any issue, but also which, it is reasonable suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or damage the case of his adversary. I have put in the words either directly or indirectly because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry, which may have either of these two consequences.
20 In Mulley v Manifold (1951) 103 CLR 341 (345) Menzies J said:
I now turn to the pleadings to determine what other matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues – not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter issue is discoverable, but is sufficient if it would, or lead to train of enquiry which would, either advance the parties own case or damage that of his adversary.
21 Having regard to the issues raised in the pleadings it is the plaintiff's case that the money was loaned to the defendants as a deposit to purchase the Parklands Property and that it was to be repaid by the 1 September 2014 or the sale of the Swanview Property, whichever was the sooner. There is no dispute that the money was not paid by 1 September 2014.
22 Also what is not in dispute is that the Swanview Property was not sold prior to 1 September 2014 and the only real issue raised between the parties on their pleading is whether there was a loan of $105,000 and if so, whether it was to be repaid by the 1 September 2014.
23 In those circumstances, I am unable to see how the sale of the Swanview property after the 1 September 2014 is relevant. It follows that I am unable to see how any documents that may be in existence relating to the sale of that property in the period claimed, namely 1 May 2015 to 1 October 2015 are relevant to this issue, in the sense explained in the Peruvian Guano case. That is, it is difficult for me to see how such documentation may lead to a course of enquiry that would assist the plaintiff's case or damage the defendant's case on this issue. To apply the criteria described by Master Newnes in Youlden Enterprises, the plaintiff who has the burden of persuading me to the point whereby I can be 'fairly certain' there are relevant documents that need to be discovered by the defendants and which have not been discovered, has failed to do so.
Inspection
24 Inspection is governed by the Rules of the Supreme Court 1971 O 26 r 8 which provides as follows:
8. Inspection of documents in list
(1) A party who has served a list of documents on any other party in compliance with rule 1 or with an order under rule 7 must allow the other party to inspect the documents mentioned in the list, other than any which he objects to produce, and must when serving the list on the other party also serve on him a notice stating a time within 7 days after the service thereof at which the said documents may be inspected at the place specified in the notice.
(2) Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection by the party giving the notice.
(3) The party on whom a notice is served under subrule (2) must within 4 days after service of the notice serve on the party giving the notice a notice stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce, may be inspected at the place specified in the notice, and stating which, if any, of the documents he objects to produce and the grounds of his objection.
(4) Subject to rule 9, inspection under this rule shall be made at the office of the solicitor for the party producing the documents or if the party appears in person at a place that is reasonable for the purpose or in the case of bankers' books or other books of account or books in constant use for the purpose of any trade or business, at their usual place of custody.
(5) The party making the inspection shall be entitled to make copies of any documents produced for inspection under this rule.
26 The RSC O 26 r 9(1)(c) empowers the court to make an order for the production of documents in question for inspection at such time and place, and in such manner as it thinks fit if it is of the opinion inspection is being offered at time or place which is unreasonable for such purpose.
27 In his affidavit of 22 October 2015 Mr Greeff gave evidence that the second defendant had attended his office on 22 September 2015 to inspect the plaintiff's documents. The attendance was without an appointment and he was not available. He says, par 14, by email dated 29 September the second defendant requested an appointment to inspect documents and an appointment was made for 1 October 2015 at 11.30 am. It is not clear from the evidence filed by the parties whether the inspection of the plaintiff's documents took place on that date.
28 By par 18 of his affidavit Mr Greeff said that by email dated 30 September 2015 he requested the second defendant bring the defendants' documents for inspection and copying when he intended to inspect documents at Avon Legal offices. I assume that is reference to the appointment made for inspection on the 1 October 2015. The second defendant refused to bring the documents and advised that there would only be available for inspection in Mandurah.
29 Mr Greeff goes on to depose that on 8 October he emailed the defendants to confirm the place in Mandurah in which they proposed inspection to occur and asked for confirmation that there were photocopying facilities available there. In response to that request he was advised documents could be inspected at the City of Mandurah Library and that there were photocopying facilities available. Mr Greeff then goes onto say, in his opinion, it is not reasonable to require a party to incur the expense of having their solicitors attend some 70 km away from the District Court to inspect documents (in this case the defendants' documents) and to use a photocopier that may not be available. If the concern is as to the distance, then there is some irony in that proposition given that it is his desire that the defendants drive 70 km to bring to him the documents that he wishes to inspect. With respect, any opinion as to whether this is reasonable is one for the Court to form and Mr Greef's opinion on this is irrelevant.
30 The defendants' in their affidavit of 15 October state they attended the plaintiff's solicitor's office on two occasions which, when I consider this with the evidence given by Mr Greeff, I take to be 22 September 2015 and 1 October 2015. The defendants say that on the first occasion the second defendant waited for some 4 ½ hours without being able to inspect the documents before leaving. There is no evidence as to whether inspection took place on 1 October 2015 but nor is there evidence that it didn't. The defendants say:
The defendants' have attended their office twice with no consideration to the costs involved to them.
31 I infer from all of that evidence the defendants attended the office of the plaintiff's solicitors on 1 October 2015 to inspect the plaintiff's documents. It would have been reasonable for them to have attended with their documents at that time to enable the plaintiff's solicitors to inspect and take copies.
32 In defence of their position that inspection of the defendant's documents should take place in Mandurah the defendants make a perfectly good point that they have been able to attend the plaintiff's solicitors' office to inspect documents at their cost, the implication being it is as reasonable for the plaintiff's solicitor to attend in Mandurah. However, it appears that on the first occasion the defendants' attendance in Midland was without first having made an appointment and on the second occasion it seems arrangements had been made for the defendants to attend Midland at which time the plaintiff might have been given the opportunity to simultaneously inspect the defendant's documents. Further, it seems to me arrangements for photocopying of documents at Midland are more reliable than any arrangements that might be made for photocopying in the Mandurah Library.
33 In the end, one party or the other, or both, need to travel to facilitate the inspection of documents and the taking of copies. In my opinion the attitude of the defendants in failing to bring their documents to Midland for inspection by the plaintiff's solicitors on 1 October 2015 when they were attending those offices at that time in any event to inspect the plaintiff's documents was unreasonable. On the other hand it nevertheless remains the fact that the defendants have already been inconvenienced twice by having to travel to Midland and the plaintiff or her solicitors have suffered no inconvenience at all. In those circumstances I will order that the defendants produce their documents for inspection at the District Court Registry Perth which at least saves them some time and distance and requires to plaintiff's solicitors to meet them somewhat half way. I will hear from the parties as to the time and date.
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