Moon v AA Holdings Pty Ltd

[2020] NSWSC 1192

Supreme Court

New South Wales

Medium Neutral Citation:

Moon v AA Holdings Pty Ltd [2020] NSWSC 1192

Hearing dates:

28 August 2020

Date of orders:

04 September 2020

Decision date:

04 September 2020

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) The plaintiff’s amended notice of motion filed on 14 August 2020 is dismissed.

(2) The plaintiff is to pay the defendant’s costs of the amended notice of motion.

Catchwords:

CIVIL PROCEDURE – Interlocutory orders for enquiries and provision of information – Sabre orders – Whether Registrar’s Order was a Sabre order – Whether Registrar’s Order was complied with – Further order for enquiries and provision of information not made

COSTS – Indemnity costs – Costs of proceedings to date – No basis for indemnity costs or payment of costs to date

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Bova v Avarti [2009] NSWSC 921

Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1

In the Matter of Indoor Climate Technologies Pty Ltd [2019] NSWSC 356

McGoldrick v SportsTG Pty Limited [2019] NSWSC 1154

Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31

Sabre Corp Pty Ltd V Russ Kalvin’s Hair Care Company (1993) 46 FCR 428

Sogelease Australia Limited v Griffin [2003] NSWSC 178

SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) (2006) 155 FCR 150; [2006] FCA 931

Category:

Procedural and other rulings

Parties:

Glenn Moon (Plaintiff)
AA Holdings Pty Ltd (Defendant)

Representation:

Counsel:
D E Baran with J M Tryon (Plaintiff)
J C Lee (Defendant)

Solicitors:
Stephen Smart & Associates (Plaintiff)
McCabe Curwood (Defendant)

File Number(s):

2018/00307818

Judgment

1. By an amended notice of motion filed on 14 August 2020, the plaintiff, Mr Glenn Moon, seeks orders to the effect that the defendant, AA Holdings Pty Ltd:

1. pay the plaintiff’s costs of the proceedings to date on an indemnity basis forthwith; and

2. write to three nominated companies requesting certain information relating, in substance, to who is the proper defendant in the matter, and provide the responses from those companies to the plaintiff.

In addition, a direction is sought that the defendant’s solicitor file an affidavit showing compliance with the order to write to the nominated companies and to provide the responses.

2. In light of the somewhat unusual nature of the orders sought, it is necessary to review what has occurred in relation to these proceedings in some detail.

Background

3. On 28 September 2015, the plaintiff, Mr Glenn Moon, was allegedly injured when he sat on a chair in the food court area of the service centre known as BP Wallan Outbound, located on the Hume Freeway at Wallan in Victoria. It is alleged that, as the plaintiff sat down on the chair, it gave way causing Mr Moon to fall to the ground landing on his back. As a result, he is said to have suffered significant injury.

4. The evidence did not disclose what steps, if any, the plaintiff’s solicitors took prior to September 2018 to identify the relevant person or entity responsible for the chair’s collapse.

5. On 11 September 2018, the plaintiff’s solicitors were informed by IAG Longtail Claims that they were the public liability insurer of “AA Holdings”.

6. On 3 and 8 October 2018, the plaintiff’s solicitors were in contact with a Mr Andrew Pavli, who was a representative of “AA Holdings”, and requested details of that company’s public liability insurer.

7. On 9 October 2018 at 8:50 AM, a Liability Claims Consultant with IAG Longtail Claims sent an email to the plaintiff’s solicitors, with the subject line “Lumley Reference: [XXX], - Insured: AA Holdings – Site: Wallan Outbound – Glenn Moon”. That email noted the contacts made on 11 September and 3 and 8 October 2018, confirmed that IAG Longtail Claims was the public liability insurer of “AA Holdings” and requested that all correspondence be sent to them.

8. On 9 October 2018 at 1:23 PM, the plaintiff’s solicitors filed the statement of claim in this matter, nominating AA Holdings Pty Ltd as the defendant. Among other things, the statement of claim alleged that:

1. the defendant “was the occupier/owner of common property at a service station known as BP Wallan Outbound …”: par 1;

2. the defendant “as the owner and/or occupier of premises was an entity who was on an obligation to maintain or repair the premises, or otherwise was in a position to exercise a right to enter the premises to carry out maintenance or repairs, including to fix all movable structures …”: par 2;

3. the defendant provided the chair upon which the plaintiff sat: par 6;

4. the defendant “supplied to persons who are members of the public, including the plaintiff, a particular service, namely a facility where persons could consume food in a public area with tables and chairs”: par (iii) of the “Claim pursuant to the Australian Consumer Law”; and

5. the defendant “was engaged in trade or commerce, namely providing services to consumers such as the plaintiff, by supplying petrol and also food”: particular (a) to the “Claim pursuant to the Australian Consumer Law”.

9. The statement of claim was verified by the employed solicitor with the day to day conduct of the matter.

10. On 27 November 2018, the Registrar made orders by consent, including orders that the defendant file and serve a defence by 28 February 2019, the plaintiff file expert medical and liability evidence by 17 April 2019 and that the matter be listed for directions on 20 June 2019.

11. Between 1 April 2019 and 12 June 2019, the plaintiff’s solicitors sent numerous emails to the defendant’s solicitor seeking an update in respect of the service of the defence.

12. On 13 June 2019, the defendant’s solicitors sent an email to the plaintiff’s solicitors stating:

“We have today received some information which seems to suggest a different entity is the occupier of the premises.

We note that the business name search from your reply to our request for particulars does not relate to AA holdings Pty Ltd.

Could you please advise of the basis on which it is alleged that AA Holdings Pty Ltd is the owner and/or occupier of the premises.”

13. On 17 June 2019, the plaintiff’s solicitors sent an email attaching a copy of the 9 October 2018 8:50 AM email from the Liability Claims Consultant, IAG Longtail Claims (which has been quoted above) to the defendant’s solicitors and stated that this confirmed “AA Holdings as their insured for this site”. It can be noted that the 9 October 2018 email does not state that the defendant was the owner or occupier of the BP Wallan Outbound service centre.

14. On 20 June 2019, the Registrar made orders by consent, including that the defendant file and serve a defence by 18 July 2019, the plaintiff serve any expert medical and liability evidence by 23 August 2019 and the matter be listed for directions on 4 September 2019.

15. On 1 July 2019, the defendant filed and served its defence. Among other matters, the defence included the following:

“1. In relation to paragraphs 1, 3 and 4 of the Statement of Claim, the Defendant:

(a) admits it was at all material times a corporation liable to sue and be sued in and by its said name and style;

(b) denies it was the owner or occupier of the common property at the service station known as BP Wallan Outbound on the Hume Highway, Wallan, in the State of Victoria (‘the Premises’);

(c) says that Wallan Enterprises Pty Ltd leased the Premises from the Roads Corporation;

(d) says that Wallan Enterprises Pty Ltd subleased parts of the Premises to various entities, which included the right to use the dining room and the tables and chairs therein;

(e) says that Panagakis Nominees Pty Ltd was the licensee appointed to operate the service station and convenience store;

(f) otherwise does not admit the allegations therein.

…

4. In relation to paragraphs (i), (ii), (iii) and (iv) of the Statement of Claim, the Defendant:

(a) denies it supplied services to the Plaintiff as alleged or at all;

…

…”

16. By this defence, the plaintiff’s solicitors were informed that AA Holdings Pty Ltd contended that:

1. it was not the owner or occupier of the relevant part of the BP Wallan Outbound premises;

2. the Roads Corporation was the owner of the land and had leased the land to Wallan Enterprises Pty Ltd;

3. Wallan Enterprises Pty Ltd subleased parts of the premises on the land to others and those parts included where the chairs and tables were.

17. On 25 July 2019, the plaintiff’s solicitors requested the defendant’s solicitors to:

“advise who was the occupier whether as sub-lessee, licensee or in any other capacity of the place where the plaintiff sustained his injury as well as the chair”.

18. Between 6 August 2019 and 19 August 2019, the plaintiff’s solicitors sent numerous emails seeking an answer to the request made on 25 July 2019.

19. On 19 August 2019, the defendant’s solicitors replied referring the plaintiff’s solicitors to paragraph 1(c) of the defence.

20. On 30 August 2019, the plaintiff’s solicitors wrote to the defendant’s solicitors and included in the letter was following:

“Please specify which of the entities was the one who had control over the area and ownership of the chair. In particular who are the ‘subleased entities’ and over what part of the service station did they have control.”

21. On 4 September 2019, the Registrar made orders by consent, including orders that the defendant provide further and better particulars of its defence by 25 September 2019, the plaintiff file an amended statement of claim by 23 October 2019 and that the matter be listed for directions on 17 February 2020. In addition, the Registrar ordered the plaintiff to file and serve its evidentiary statements by 23 October 2019.

22. On 25 September 2019, the defendant’s solicitors sent a letter dated 24 September 2019 to the plaintiff’s solicitors stating, inter alia:

“We enclose the following documents:

i) Deed of Assignment of Lease and Freeway Access Agreement between Roads Corporation and Wallan Enterprises Pty Ltd.

ii) Lease and Annexures between Wallan Enterprises Pty Ltd and McDonald’s Australia Limited.

iii) License Agreement between AA Wallan Outbound Pty Ltd and Panagakis Nominees Pty Ltd.

The chairs were supplied by Wallan Enterprises Pty Ltd following construction of the service station.

We understand that the Plaintiff’s accident occurred in the zoned area of the dining room designated to McDonald’s Australia Limited under its lease.

We respectfully say that the documents supplied above speak for themselves as to the responsibilities of the various parties in relation to the dining room and chairs.” (emphasis in original)

23. The documents referred to were provided with that letter.

24. On 23 October 2019, the plaintiff’s solicitors wrote to the defendant’s solicitors contending that the documentation received on 25 September 2019 did not disclose “who owned and had the care, maintenance and obligation to repair of the subject chairs in question.” In addition, it was said in that letter:

“Please note that if you do not provide that information we will seek orders that you do.

In the above circumstances, the Plaintiff cannot file and serve an amended Statement of Claim and evidentiary statement until the requested information is provided.”

25. Between 6 November 2019 and 13 November 2019, the plaintiff’s solicitors once again sent a number of emails seeking a response from the defendant’s solicitors.

26. On 13 November 2019, the defendant’s solicitors sent a letter to the plaintiff’s solicitors which included the following:

“As you will note from the documentation supplied under cover of our letter dated 24 September 2019, Wallan Enterprises Pty Ltd occupied the site pursuant to a lease with the Roads Corporation, upon which it developed the service station and shops. We have sought documents relating to the purchase and supply of chairs to the premises and will produce any relevant documents once they are at hand.

Various entities then leased or were licensed use of parts of the premises. We again say that the documents supplied in our earlier correspondence speak for themselves as to the responsibilities of the various parties in relation to the dining room and chairs, noting our earlier advice that the accident occurred in the zoned area of the dining room designated to McDonald’s Australia Limited under its lease.

We do not object to allowing further time to the Plaintiff to amend his Statement of Claim upon receipt of the documentation about the purchase of the chairs. However, we see no reason why the Plaintiff cannot complete his evidentiary statement at this stage, given that these issues are not matters within his knowledge and will presumably not be addressed in the statement. Please let us have the Plaintiff’s evidentiary statement within 14 days.”

27. On 25 November 2019, the plaintiff’s solicitors sent an email to the defendant’s solicitors referring to their letter of 23 October 2019 and the defendant’s solicitors’ response of 13 November 2019 and contending that they had “not received a valid response to our request and would be grateful if you could provide the same as a matter of urgency.”

28. On 2 December 2019 and 11 December 2019, the plaintiff's solicitors sent emails seeking a response from the defendant’s solicitors.

29. On 22 January 2020, the defendant solicitors wrote to the plaintiff’s solicitors saying that their client had been unable to locate any document relating to the purchase and supply of the chairs and requesting that the plaintiff’s evidentiary statement be provided within 14 days.

30. On 17 February 2020, the matter was stood over by the Registrar for directions on 16 March 2020.

31. On 26 February 2020, the plaintiff filed a notice of motion relevantly seeking an order as follows:

“1. Pursuant to section 61 of the Civil Procedure Act, the Defendant provide the name of the person or entity who owned or had control over the subject chair that caused the Plaintiff’s injury.”

32. On 27 April 2020, the Registrar made orders including, as entered:

“The Defendant is to provide to the Plaintiff by the close of business on Friday, 8 May 2020 the name of the person or entity that had to the care, control and obligation of maintenance of the chairs where the Plaintiff was seated on 28 September 2015 on the subject premises and the basis for that series of obligations.”

33. The Registrar gave ex tempore reasons for making such an order which included the following:

“ … as the ultimate owner of the premises it certainly appears to be well within the defendant’s power to make full and comprehensive enquiries with the lessees or sublessees to establish the information that the plaintiff has been seeking to obtain.

…

I have considered material [which was apparently the documentation provided by the defendants solicitors] and it is certainly not within my understanding that the identity of the person or entity that had the care, control and maintenance of the chairs is apparent from those documents. In those circumstances, I find that the defendant should be certainly compelled to provide the information and so I make … order 1 in relation to the Notice of Motion ….”

34. During the hearing before me, Mr Baran of counsel, who appeared for the plaintiff, accepted that the Victorian Roads Corporation and not the defendant was the ultimate owner of the premises. It was also accepted (at Tcpt 28 August 2020 p 5 (41-42)) that:

“It would appear … AA Holdings, in all probability, now does not play a role in these proceedings.”

35. These propositions appear to be correct having regard to the defendant’s solicitors’ letter of 24 September 2019 and the documentation enclosed with that letter. That material indicated that the Roads Corporation leased the premises to Wallan Enterprises Pty Ltd which, in turn, subleased to McDonalds Australia Ltd the relevant area where the chair was located.

36. The defendant has not, however, ever sought to challenge the Registrar’s order made on 27 April 2020.

37. On 8 May 2020, the solicitors for the defendant wrote a letter to the solicitors for the plaintiff as follows:

“We refer to the order of the Court on 27 April 2020 that the Defendant is to provide the name of the person or entity with the care, control and obligation of maintenance of the chair where the Plaintiff was seated on 28 September 2015 on the subject premises and the basis for that series of obligations.

We say that Wallan Enterprises Pty Ltd (“Wallan”) had care, control and obligation of maintenance of the chair, subject to the responsibilities of McDonalds Australia Limited (“McDonalds”) in relation to that chair on the following basis:

i) Wallan occupied the BP Hume Freeway Service Centre Northbound (“the Site”) pursuant to a lease with the Roads Corporation dated 24 March 2006 as transferred and varied by deed dated 2 June 2008.

ii) The Site included a dining room which contained tables and chairs (“the Dining Room”, which is the black hatched area on plan HN1 of Annexure B of the Sublease).

iii) Our client is unable to locate the invoices for the chairs but believes that the Defendant purchased the chairs and supplied them to the Site in or about 2008 or 2009. [This may be an error in light of the statement in the letter of 24 September 2019 that Wallan Enterprises Pty Ltd purchased and supplied the chairs and the defendant’s inability to find any relevant invoices.]

iv) Wallan entered into a sublease with McDonalds dated 13 November 2008 (“the Sublease”).

v) The Sublease granted McDonalds and its customers the right to use the Dining Room.

vi) The Sublease nominated certain tables and chairs as the “Tenant’s Zoned Areas” which are outlined on the plan in Annexure F of the Sublease.

vii) The Defendant understands that the chair where the Plaintiff was allegedly seated on 28 September 2015 was within McDonalds’ Tenant’s Zoned Areas under the Sublease.

viii) Wallan was required to maintain and keep in good condition and repair the common areas (which included the Dining Room) and clean the Dining Room between 12 am and 5 am pursuant to Clause 22.03B of the Sublease.

ix) McDonalds was required to clear any refuse from the Tenant’s Zoned Areas during trading hours pursuant to Clause 22.03C and report any maintenance issues in the Dining Room to Wallan pursuant to Clause 22.03D.

x) In addition to its obligations under the Fuel Reseller Agreement, Panagakis Nominees Pty Limited acted as Wallan site representative and the point of contact for tenants regarding any maintenance issues they wish to report.” (emphasis in original)

38. The plaintiff’s solicitors were apparently not satisfied with the letter of 8 May 2020 and, on 19 May 2020, wrote to the defendant’s solicitors as follows:

“We refer to the above matter and to your letter dated 8 May 2020.

We would be grateful if you could kindly confirm whether the particulars provided in your above mentioned letter is [sic] based on your analysis of the documentation in your possession or have you made enquiries and if so with whom.

…”

39. On 29 May 2020, the defendants solicitors replied saying, inter alia:

“We confirm that we made enquiries with the Defendant regarding the response to particulars.

Please advise of the orders you will be seeking at the Directions Hearing on 9 June 2015 [sic].”

The notice of motion

40. On 15 June 2020, the plaintiff filed a notice of motion seeking an order that the defendant pay the plaintiff’s costs of the proceedings to date on an indemnity basis forthwith. The Registrar made directions for the preparation for hearing of the motion.

41. On 20 July 2020, the plaintiff was directed to file and serve any amended notice of motion by 14 August 2020 and the matter was listed for hearing on 28 August 2020.

42. In addition to the order for indemnity costs, the amended notice of motion sought the following orders:

“2. Order that the Defendant either by itself or its solicitor within seven (7) days of the making of these Orders write to the following entities:

(a) Wallan Enterprises Pty Ltd.

(b) McDonald’s Australia Limited.

(c) Panagakis Nominees Pty Ltd,

requesting as at the date of the Plaintiff’s accident, confirmation of which person or entity owned or otherwise had the control of the chair in the area where the Plaintiff sustained injury.

3. Direct the Defendant that within fourteen (14) days to furnish the Plaintiff with the responses received from the entities referred to in the preceding Order.

4. Direct the Defendant’s solicitor file an Affidavit within fourteen (14) days of the making of these Orders and serve same upon the solicitors for the Plaintiff showing compliance with the Orders made herein.”

43. The defendant opposed the making of these orders as well as the indemnity costs order.

Submissions

44. As to the order made on 27 April 2020, the plaintiff submitted that it was:

“an Order in the nature of a Sabre order available under the general law and also in accordance with the provisions of s.61 of the Civil Procedure Act 2005 (NSW). The origin of the Sabre order derives from Sabre Corp Pty Ltd V Russ Kalvin’s Hair Care Company(1993) 46 FCR 428 where His Honour Lockhart J made orders requiring a party to request various documents for an overseas entity and to subsequently produce them to the Court.” (emphasis in original)

45. On this basis, it was then contended as follows:

“It was insufficient for the Defendant simply to provide its own interpretation of who it believed were the correct entities to sue, rather the specific nature of the making of the Sabre order required enquiries to be made of all the third parties to determine on the balance of probabilities, who had the care, conduct and control of the chairs and it would have been a very easy task for the Defendant to undertake, and undertake expeditiously.” (emphasis in original)

46. More specifically, it was submitted that:

1. “contrary to the specific requirements of the Order being a Sabre order, the Defendant does not reveal at all any enquiries that it made with the Defendant”;

2. “What they were required to do was to make enquiries with all of the entities concerned so that there is absolute certainty so far as the commencement of proceedings are concerned or the joinder of another defendant to the proceedings in strict compliance with the relevant provisions of the Legal Profession Uniform Law”.

47. Finally, in relation to the defendant’s solicitors letter of 29 May 2020 in which they said that “we made enquiries with the Defendant regarding the response to particulars”, the plaintiff submitted:

“This is precisely what the Defendant was not required to do. The Defendant was required to make enquiries with all of the relevant stakeholders who were involved in the care, control and maintenance of this particular chair and to identify which of those entities had the day-to-day obligation to exercise reasonable care to guard against the risk of foreseeable injury either by express delegation or in their own right.” (emphasis in original)

48. As to indemnity costs, the plaintiff submitted in effect that it was entitled to indemnity costs:

“as the entirety of the proceedings have effectively been an exercise involving the incurring of unnecessary legal cost so far as the Plaintiff is concerned in circumstances where there has been significant delays by the Defendant in obstructive behaviour in its obligations to comply with the provisions of the Civil Procedure Act in order to achieve a just, quick and cheap resolution of legal proceedings pursuant to ss.56-58 of the Act.”

49. In substance, the defendant submitted, consistently with what the order of 27 April 2020 actually provided, that:

1. the order was not a Sabre order; and

2. the order as made was complied with.

50. As to the claim for indemnity costs of the whole proceedings, the defendant effectively submitted that:

1. the costs of the amended notice of motion should follow the event; and

2. otherwise, there was no basis for an indemnity costs order and even though the defendant was late in filing its defence, the plaintiff has been and is also in default of a number of orders in relation to the filing of his evidence. There was no relevant delinquency on the defendant’s part such as to justify an award of costs, let alone indemnity costs.

51. The defendant submitted that the plaintiff’s position appeared to be founded “upon the basis that it is the Defendant’s responsibility to advise the plaintiff who he should sue, what subpoenas he should issue and what enquiries (including by way of preliminary discovery) he should make”.

Consideration

52. The foundation of the plaintiff’s case is that the order made on 27 April 2020 was a Sabre order and, as a result, the defendant was required to make enquiries of others in order to comply with the order.

53. As Mr Baran correctly noted, Sabre orders derive their name from the decision of Lockhart J in Sabre Corp Pty Ltd v Russ Kalvin's Hair Co (1993) 46 FCR 428. In that case, his Honour was dealing with an application for orders intended to ensure the production of documents which recorded details of the ingredients, manufacture and characteristics of certain JOICO hair care products of which the applicant, Sabre Corporation Pty Ltd (Sabre), was the exclusive distributor in Australia. Sabre alleged that the respondents were passing off their products as JOICO products and engaging in misleading and deceptive conduct.

54. The solicitors for the respondents had served a notice to produce directed to Sabre to produce the types of documents referred to above. No documents were, however, produced in answer to the notice because no such documents were in Sabre’s possession, power or control.

55. In these circumstances, the respondent filed a notice of motion seeking, inter alia, that Sabre request Joico Laboratories Inc (Joico), a United States corporation which manufactured the JOICO products in the United States, to provide Sabre with those documents. When this was done, the documents “could then be, under the guidance of the Court, made available to the respondents for their inspection, with confidentiality being suitably protected by an order of the Court”.

56. Sabre’s position was that there was no objection in principle to an appropriate order being made requiring it in effect to take steps to obtain access to and discover documents from Joico in the United States and to produce them to the Court.

57. Against this background, Lockhart J said:

“In my opinion the Court has power to direct a party to take steps to obtain access to and discover documents which are in the possession, power or control of a third party where there is a real likelihood that the party to the proceeding would be given access to the documents upon request. Section 23 of the Federal Court of Australia Act confers ample power upon the Court to make orders of the kind sought in paragraph (2) of the notice of motion, namely, an order that the applicant be required to request Joico to take steps to obtain access to and discover documents in the possession, power or control of Joico (the third basis relied on by the respondents and mentioned earlier). Section 23 provides:

‘The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.’

This power may be exercised where there is a real likelihood that the party to the proceeding against whom the order is made would be given access to the documents by the third party upon request. [Various cases where similar orders were made were referred to].

This is a case where there is a real likelihood that the applicant will be provided access to the relevant documents by Joico should it request it. Joico manufactures the products in the United States and the applicant is the exclusive Australian distributor of them in Australia and has held that distributorship since 1985. My view is strengthened by certain of the provisions of the current distributorship agreement between them, in particular clause 11.3, which I shall not recite because it was marked at the request of the parties as a confidential exhibit.”

58. Significantly, the form of order which Lockhart J proposed expressed the obligation on Sabre as being to “make such requests and do such things as may reasonably be necessary to obtain from Joico” the relevant documents. Having indicated in those broad terms what the orders should contain, Lockhart J did not make specific orders on that occasion but the parties were to bring in short minutes to give effect to his Honour’s reasons.

59. It can be seen that the original Sabre order:

1. related to obtaining specified types of relevant documents with a view to their being produced to the Court and then access being given to the party seeking the documents;

2. would specify the steps that the party bound by the order was required to take in order to attempt to obtain the documents; and

3. was made only because it had been established that there was a real likelihood that the party to the proceeding against whom the order was made would be given access to the documents by the third party upon request.

60. Similar orders have been made in subsequent cases in relation to discovery of documents as well as notices to produce. In Bova v Avarti [2009] NSWSC 921 (Bova), Ward J (as her Honour then was), at [373], described the relevant power to make a Sabre order as “[t]he ability of the court, in appropriate cases, to direct a party to take reasonable steps to procure documents from a non-party”: citing Palmer J in Sogelease Australia Limited v Griffin [2003] NSWSC 178 at [37]. The applicable principles concerning Sabre orders have been usefully collected in McGoldrick v SportsTG Pty Limited [2019] NSWSC 1154 (McGoldrick) by Ierace J.

61. The considerations that are relevant to the making of Sabre orders include:

1. at least where it relates to discovery of documents, a Sabre order should only be considered after inter-parties discovery has taken place: Bova at [371]; McGoldrick at [23];

2. there must be a likelihood that the documents sought are in fact in existence in the possession of the third party: SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) (2006) 155 FCR 150; [2006] FCA 931 (SPI) at [32] (Edmonds J), Bova at [370]; McGoldrick at [25];

3. there must be a “real likelihood” that the party to the proceedings would be given access to the documents upon request and this likelihood must be established by evidence: Bova at [370]; McGoldrick at [26];

4. the order must be restricted to requiring the person against whom it is made to take all reasonable steps to obtain the documents: McGoldrick at [27];

5. the documents must be relevant to the issues in dispute: McGoldrick at [28];

6. a Sabre order will not be appropriate where the documents are not necessary for disposing fairly of the proceedings: Bova at [372]; McGoldrick at [28];

7. the degree of hardship and oppression which would be occasioned to the third party if a Sabre order is made is a relevant consideration: McGoldrick at [29].

62. The defendant did not contend that there was no power under s 61 of the Civil Procedure Act 2005 (NSW) (CP Act) to make the order of 27 April 2020 and there is no cause to consider that issue on this application.

63. Nonetheless, in my view, the order of 27 April 2020 could not properly be classified as a Sabre order. The order of 27 April 2020 did not concern the production of documents at all. It concerned information which involved legal opinions or conclusions of mixed fact and law as to who had “care, control and obligations of maintenance of the chair”. Further, and even if a Sabre order could relate to obtaining information as opposed to documents, the order in the present case did not specify that the defendant was to make enquiries of any third parties, identified or not. Nor did it require the defendant to take all reasonable steps to obtain the opinion or conclusion sought based on information from identified third parties rather than its own documentation and sources of information.

64. At this point it can be noted that there was one aspect of this matter which has remained entirely unclear. There was no evidence, for example by way of relevant company or business name searches or otherwise, as to the connection, if any, between AA Holdings Pty Ltd, on the one hand, and Wallan Enterprises Pty Ltd and Panagakis Nominees Pty Ltd or the BP Wallan Outbound service centre, on the other. The inference was available from the IAG Longtail Claims’ email of 9 October 2018 at 8:50 AM, that AA Holdings Pty Ltd had a connection with the BP Wallan Outbound service centre but what the nature of that connection was and whether it included a corporate or other relationship with Wallan Enterprises Pty Ltd and Panagakis Nominees Pty Ltd was not addressed in the evidence before me. There was no sufficient evidentiary basis to find that Wallan Enterprises Pty Ltd, Panagakis Nominees Pty Ltd or McDonald’s Australia Ltd was obliged to, or would be likely to, provide information to AA Holdings Pty Ltd on request.

65. In the absence of some express requirement in the Registrar’s order of 27 April 2020 that the defendant make enquiries of specified third parties, the defendant could not be criticised for not doing so. In addition, prior to the making of that order:

1. the defendant had pleaded its contentions as to who was the owner and the occupier of the relevant area and as to the fact that the dining area was sub-leased to various persons; and

2. the defendant had provided documentation relevant to the issue of who had “care, control and obligations of maintenance of the chair” and provided information as to who had purchased and supplied the chair although it could not now locate an invoice for the chair.

66. In response to the order of 27 April 2020, the defendant provided its opinion as to who had “care, control and obligations of maintenance of the chair” in its letter of 8 May 2020, identified the relevant entities and their roles, and properly brought to the plaintiff’s attention factors that might lead to a need to qualify that opinion.

67. In all the circumstances, it seems to me that the defendant’s solicitors’ letter of 8 May 2020 amounts to full and sufficient compliance with the Registrar’s order of 27 April 2020.

68. In addition, in my assessment, the defendant, whom the plaintiff concedes “in all probability, now does not play a role in these proceedings”, has not only complied with the order, it has also discharged its duty, under s 56 of the CP Act, to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the Court.

69. The plaintiff’s submission appears to be, in effect, that the defendant should, in order to comply with the 27 April 2020 order and with its duties under the CP Act, have conducted its own enquiry into who was liable for the alleged failure of the chair and provided the answer to the plaintiff so that the plaintiff was saved the time and expense of determining whom it should properly join as a defendant.

70. The plaintiff contended that the order of 27 April 2020 required the defendant “to make enquiries with all of the entities concerned so that there is absolute certainty so far as the commencement of proceedings are concerned …” (emphasis added). I do not accept that the Registrar’s order, given its terms, required any such thing.

71. Furthermore, the plaintiff submitted that the 27 April 2020 order “required enquiries to be made [by the defendant] of all the third parties to determine on the balance of probabilities, who had the care, conduct and control of the chairs” (emphasis added). If this were correct, it would involve the defendant being required to duplicate, at least in part, the adjudicative role of the Court. This, however, would likely be a pointless exercise since the defendant’s determination, even if made on the balance of probabilities after full enquiries, would not bind the plaintiff or any third parties and the determination would be unlikely to be admissible at the substantive hearing.

72. If the plaintiff’s contentions were correct it would, at best, shift the burden of determining who should be joined as defendants onto a party who has no apparent role to play in the proceedings, given the absence of any basis disclosed on the evidence for finding that AA Holdings Pty Ltd was potentially liable as a defendant or was related to the other companies which, on the documentation, had a direct role to play in relation to the BP Wallan Outbound service centre.

73. There does not appear to be anything which would prevent or inhibit the plaintiff or the plaintiff’s solicitors writing to Wallan Enterprises Pty Ltd, McDonald’s Australia Limited and Panagakis Nominees Pty Ltd requesting confirmation, as at the date of the plaintiff’s accident, of which person or entity owned or otherwise had the control of the chair in the area where the plaintiff sustained injury. Mr Baran suggested, in oral submissions, that ethical obligations prevented the plaintiff’s solicitors from doing so. However, it was not suggested that the solicitors for the defendant also represented either Wallan Enterprises Pty Ltd or Panagakis Nominees Pty Ltd nor was it suggested that those solicitors acted for McDonald’s Australia Limited. It is difficult to see how there could be any ethical prohibition on such enquiries being made by or on behalf of the plaintiff.

74. For all of these reasons, it does not appear to me that the orders and directions sought in prayers 2, 3 and 4 of the plaintiff’s amended notice of motion should be made either to remedy the defendant’s alleged failure to comply with the Registrar’s order of 27 April 2020 or to ensure the defendant complied with its obligations under Pt 6 of the CP Act.

75. My conclusions at this point can be summarised as follows:

1. the defendant has complied with the Registrar’s order of 27 April 2020;

2. the defendant has complied with its duty under s 56(3) of the CP Act in relation to these proceedings; and

3. the defendant should not be ordered to write to the three entities seeking information as set out in prayer 2 of the amended notice of motion filed on 14 August 2020 or to provide that information to the plaintiff in accordance with prayer 3 nor should the defendant’s solicitors be required to provide an affidavit of compliance as sought in prayer 4.

Costs

76. The only significant remaining prayer for relief was that the defendant should pay the plaintiff’s costs of the proceedings to date, which naturally includes the costs of the amended notice of motion, on an indemnity basis.

77. The plaintiff has, however, been unsuccessful on the substantive part of its amended notice of motion. There were no circumstances identified by the parties or by me which would render it inappropriate for costs of this aspect of the amended notice of motion to follow the event. Accordingly, I am satisfied that the plaintiff is not entitled to its costs in this regard, on an indemnity basis or on the ordinary basis.

78. As to whether any other costs should be ordered to be paid on an indemnity basis, the relevant principles were helpfully summarised by Black J In the Matter of Indoor Climate Technologies Pty Ltd [2019] NSWSC 356 at [8] as follows:

“… Section 98(1)(c) of the Civil Procedure Act 2005 (NSW) permits the Court to order costs on an ordinary or indemnity basis. Rule 42.2 of the Uniform Civil Procedure Rules 2005 (NSW) provides that, unless the Court otherwise orders or the rules otherwise provide, costs payable are to be assessed on an ordinary basis. Rule 42.5 of the Uniform Civil Procedure Rules deals with an order for costs on an indemnity basis. Costs are awarded on the ordinary basis unless there are exceptional circumstances: Leichhardt Municipal Council v Green [2004] NSWCA 341. An order for indemnity costs is not made to punish an unsuccessful party for persisting with a case that fails, but to compensate a successful party fully for costs incurred, when the Court takes the view that it was unreasonable for the other party to have subjected the successful party to the expenditure of costs: Hamod v New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 at [20]. Whether an indemnity costs order should be made depends, at least in part, on whether there was a relevant delinquency on the part of the unsuccessful party: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7) [2008] NSWSC 199; (2008) 65 ACSR 324 at [24]; Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6]. That is to be determined by reference to the conduct of the proceedings, not the conduct that is the subject of the substantive dispute.”

79. In the present case, the plaintiff contended that the costs of the proceedings to date should be ordered on an indemnity basis because the defendant’s conduct in the proceedings was unreasonable in that:

1. the defendant refused to answer a very obvious question at a very early stage;

2. the defendant refused to engage with the plaintiff;

3. the defendant compelled the plaintiff to seek interlocutory relief to reveal additional entities who ought to be sued;

4. the defendant refused to comply with an order in the nature of a Sabre order; and

5. the defendant continued to refuse to comply with an order of the Court.

80. As to whether costs of the proceedings to date should be paid forthwith, the general rule is that costs of any application or other step in any proceedings do not become payable until the conclusion of the proceedings: UCPR r 42.7(2). Under that subrule, however, the Court may otherwise order.

81. The principles relevant to whether an order for payment before the conclusion of proceedings would be made include:

1. proper exercise of the discretion conferred by r 42.7(2) to order otherwise depends upon a consideration of all the circumstances of the case having regard to the interests of justice: Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 (Pavlovic) at [16];

2. some of the relevant circumstances may include:

1. the interlocutory decision or stage reached represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect of the case: Pavlovic at [15] citing Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1 (Morningstar) at [11];

2. the conduct of the unsuccessful party may be seen as unreasonable: Pavlovic at [15]; Morningstar at [12]; and

3. there is still some considerable distance to go in the litigation so that it may be appropriate that the successful party obtain the fruits of its costs order now: Pavlovic at [15]; Morningstar at [13].

82. As indicated above, the defendant has been successful in opposing the substantive relief sought in the amended notice of motion and is entitled to its costs in that regard. In addition, the proceedings have not reached a stage where it can be said that a discrete aspect of the case has been completed. This is especially so in circumstances where it is a distinct possibility that AA Holdings Pty Ltd has no role to play in these proceedings as a defendant and it may well be necessary for it to be removed as a party by some appropriate means, which may have costs consequences. The interests of justice do not require or even support the making of an order that the defendant pay the plaintiff’s costs of the proceedings to date.

83. Furthermore, I do not accept that the defendant’s response to the 27 April 2020 order was unreasonable or amounted to a failure to comply with the order, for the reasons given above. Nor do I find that the defendant or its solicitors have behaved unreasonably, noting that the defendant has:

1. filed a defence which alerted the plaintiff to who might be the proper defendant or defendants and why;

2. provided relevant documents concerning who was the owner of the land, who was the head lessee and who was the relevant sublessee; and

3. responded quite constructively to the order of 27 April 2020 in the letter of 8 May 2020.

84. It is true that the defence was not filed within the time set in the original directions of the Registrar but an extension of time was, in effect, granted in the consent directions made on 20 June 2019 and the defendant filed its defence within the time specified in those consent directions. It can be noted, to the extent relevant, that the plaintiff has also failed to comply with some of the Registrar’s directions concerning the filing of his evidence.

85. In all the circumstances, it does not appear to me that the plaintiff is entitled to any costs order against the defendant for the proceedings to date. Nor has there been any delinquency or unreasonableness on the part of the defendant such as could justify ordering the defendant to pay the plaintiff’s costs to date on an indemnity basis.

Conclusion and orders

86. For all of these reasons, the orders of the Court are:

1. The plaintiff’s amended notice of motion filed on 14 August 2020 is dismissed.

2. The plaintiff is to pay the defendant’s costs of the amended notice of motion.

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Decision last updated: 04 September 2020