Newbey v Smoothy
[2022] WADC 9
•10 FEBRUARY 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: NEWBEY -v- SMOOTHY [2022] WADC 9
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 20 JANUARY 2022
DELIVERED : 10 FEBRUARY 2022
FILE NO/S: CIV 1954 of 2020
BETWEEN: HELEN LEE NEWBEY
Plaintiff
AND
BRENT RONALD SMOOTHY
First Defendant
RACHEL MARY BURN
Second Defendant
HILLSIDE STATION (WA) PTY LTD
Third Defendant
RACHLAN HOLDINGS PTY LTD
Fourth Defendant
Catchwords:
Practice and procedure - Application for further and better discovery - Claim discussed and the relevance of discovery sought discussed - Turns on its own facts
Legislation:
Criminal Investigation Act 2006 (WA)
Result:
Application partially successful
Representation:
Counsel:
| Plaintiff | : | Mr T P Stott |
| First Defendant | : | Mr M D Priestly |
| Second Defendant | : | Mr M D Priestly |
| Third Defendant | : | Mr M D Priestly |
| Fourth Defendant | : | Mr M D Priestly |
Solicitors:
| Plaintiff | : | P A Martino |
| First Defendant | : | Pacer Legal |
| Second Defendant | : | Pacer Legal |
| Third Defendant | : | Pacer Legal |
| Fourth Defendant | : | Pacer Legal |
Case(s) referred to in decision(s):
Nil
DEPUTY REGISTRAR HEWITT:
This action commenced by writ of summons filed on 27 May 2020. The cause of action pursued by the plaintiff is the return up of a Komatsu wheel loader and damages for its detention.
The facts as they emerge from the materials filed show that the loader in question was owned by a company, Monnif Pty Ltd (Monnif), a company now in liquidation. It is alleged that at all times, Monnif was entitled to possession of the loader and that on 3 February 2017 the first defendant or one of the defendants removed the loader from a yard in Wedgefield, north Port Hedland, and from that time to the present it has remained in the possession of the defendants or some of them. On 8 May 2019 the plaintiff took an assignment of Monnif's right, title and interest in the loader and its causes of action regarding the removal of the loader from the possession of Monnif. The first defendant and the second defendant are directors of the third and fourth defendants and are the owners of a pastoral lease known as Hillside Station and were formerly the owners of two other stations namely Kumarina Station and Sylvania Station. It is alleged that the loader was removed from the possession of Monnif and originally taken to or in the vicinity of Kumarina Station then to Sylvania Station and finally to Hillside Station where it was in recent times and probably remains. The removal of the loader and other items of equipment from the yard in Wedgefield would appear to have been something of a clandestine operation carried out at night, and as a consequence of a complaint from the then director of Monnif, the first defendant was charged with theft. That charge was ultimately withdrawn.
It is plain from the materials that the plaintiff is not entirely sure whether one or all of the defendants are likely to be liable to the plaintiff and which of them is in possession of the loader. It is obvious that the first defendant is targeted as the most likely candidate, but the plaintiff is not sufficiently well informed to be able to rule out the possibility that one of the other defendants might also be liable. The defendant who appears to be least likely to be liable is the second defendant who is in a relationship with the first defendant and a director of the third and fourth defendants but as far as I can see on the materials, that is the extent of her connection to the matter. No doubt this confusion has spawned the application with which I am required to deal and that is an application for further and better discovery. The discovery sought is extensive and is contained in a document called a schedule of further and better discovery sought 6 July 2021. That document was intended to be annexed to the chamber summons giving rise to the application but for whatever reason it was not so annexed. The actual document can be found in the affidavit of Helen Lee Newbey (the plaintiff) sworn 8 October 2021 where it appears at pages 210 - 218 and is attached to these reasons and marked Annexure A.
I next turn to the legal basis for making an order for further and better discovery. As I understand the law, in order for such an application to succeed it is necessary to demonstrate to a fairly high level of probability that the documents exist, are or were in the possession of the respondent to the application and are relevant to matters in issue in the action. It is not necessary that the materials are directly admissible as evidence but may lead to a line of enquiry on matters which shed light on the issues in the proceedings.
The first, and in my view primary point to commence with is whether or not on the evidence which has been adduced in support of the application, it is likely that the identified documents exist and are or were in the possession, power or control of the respondents or one of them. The general rule is that where an affidavit of discovery has been sworn and filed, persuasive evidence is required to demonstrate that the affidavit is deficient and that an order ought to be made.
No effort has been made in the application to identify which of the defendants is required to respond to which of the requests for further and better discovery. However, as Mr Smoothy is both a defendant in his own capacity and a director of the corporate defendants, I think it is appropriate that he should respond. Insofar as the application relates to the second defendant, I am unable to discern any evidence advanced by the applicant which would suggest that she should be required to swear an affidavit in response, and to the extent that I may order an affidavit of further and better discovery to be given, the person required to swear that affidavit will be the first defendant on behalf of himself and the corporate defendants.
From that introduction, I move to consider the categories of documents for which further and better discovery is sought. It is to be noted that in many of the categories the words 'but not limited to' are included. In my view, it is not an acceptable way for the application to be framed. So that for instance the first category:
All correspondence and other documents by, from or to the Western Australia Police and/or the state prosecutors office which relate to the matter in question in the preceding column, including but not limited to:
…
and then a series of subparagraphs is not an acceptable way to frame an application for further and better discovery. However, the sub‑categories which follow that description do, in some instances, contain appropriate descriptions of the documents sought. Commencing with item 1, the first such subparagraph seeks documents passing between the defendants' solicitors and the Western Australia Police and/or the state prosecutors office, including the email by which the Pacer Legal letter dated 9 February 2017 was sent. The materials have exhibited to them the letter referred to but I have no reason to suppose that the email contained anything of interest or relevance on any basis to this action. Accordingly, insofar as the documents detailed in 1(a), it is refused. Subparagraph 1(b) seeks an email by the first defendant to Detective Senior Constable Nathan Nunn sent on 20 March 2017 and attachment. A copy of the email with a redaction to one of the recipients is exhibited to the affidavit in support of the application. I cannot see any reference to any attachments save for an earlier email from the first defendant advising the police of the coordinates where the loader might be found. How the plaintiff came by these documents is not explained but it seems likely that they are discovered documents. The application in this respect is refused.
The next document sought is a copy of a search warrant which was issued by the police in regard to the loader and various other items. I am unable to understand how that document can be relevant to any issue between the plaintiff and the defendants. Likewise, I am unable to understand the relevance of any seizure notice which may have been issued by the police and this aspect of the application is refused.
The next matter concerns a record of interview apparently conducted around about 1 March 2017. Insofar as this document is said to exist, it is stated, without explaining how the deponent is aware of the matters to which she deposes, that on 1 March 2017 the police conducted an interview with a person of interest. Two people were allegedly charged, one being on 9 February 2017 which was presumably the first‑named defendant and the other on 1 March 2017, which was presumably some accomplice. It is a right of a person facing a potential criminal charge to remain silent. There is no reason to suppose that whomever it was who was interviewed failed to exercise his right of silence. Additionally, the Criminal Investigation Act2006 (WA) requires records of interview to be visually recorded and they are not transcribed. There are also prohibitions upon the provision of copies of records of interviews to unauthorised persons. The plaintiff is clearly not an authorised person and even if an interview took place, which is debatable, and recorded, the plaintiff in this action would not be entitled to a copy of the recording and this aspect of the application is refused.
The next documents which are sought is the prosecution notice issued against the first defendant and the statement of material facts issued in respect of the first defendant. Both of these documents are potentially relevant and should have been the subject of the first defendant's discovery. They are ordered to be discovered.
The next matter relates to an insurance claim which was made by Monnif which was investigated by an agent appointed by an insurer which led to the production of a verification statement in regard to a personal property security registration. In my view, there is scant evidence provided that any correspondence did take place other than the provision of a verification statement. The request for all correspondence, records and other documents which relate to the matter of the insurance claim, in my view is hopelessly broad and is not supported by evidence and should be rejected.
The next matters are records and documents that relate to the movement of the relevant loader to Kumarina Station and from Kumarina Station, Sylvania Station and Hillside Station from February 2017 to May 2019 inclusive. Again, the request is very broadly expressed, covers a two‑year period or thereabouts and does not specify what kind of documents are sought and is of a very general nature. It will be refused.
The next category is for all records, searches and other documents that relate to the ownership and occupation of Kumarina Station, Sylvania Station and Hillside Station from 3 February 2017 to 7 May 2019 inclusive. This request is so broad as to be almost meaningless. Are, for instance, the defendants required to disclose all their household purchases during that time, whether a plumber was called in to fix some sewerage problem, payment of workers on the station, goods and chattels purchased and used in the running of the station? The list is virtually endless. To make an order in these terms would be oppressive and it is declined.
The next item is a request for the Komatsu Loader Log Book and the defendant agrees that can be supplied.
Again, the next request is data from the loader's Equipment Management Monitoring System from 3 February 2017 to 7 May 2019. Again, that is agreed.
The next question relates to the proposition that between early January 2017 and on or about February 2017, the fourth defendant was utilising a Scania prime mover with an identified number plate, the Komatsu loader, a Howard Porter trailer again with an identified number plate and a front-liner water cart. What is sought is all correspondence, records and other documents which relate to the matter in question. Of the four identified items only one is relevant to the case, and I am not aware of any evidence which is presented in support of the application which indicates that the relevant loader or indeed any of the other identified items was being used by the defendants or one or more of them. In any event, I struggle to understand the relevance of such documentation to the case in question. It is not part of the defendants' defence that it was being used over any particular period, but the defendants were granted permission to use that equipment.
The next items 4, 5 and 6 are conceded by the defendants.
The next matter relates to which, if any, of the defendants had possession of and used the Komatsu loader. Accordingly, further discovery is sought of all records and other documents which relate to the movement of the loader to and from Kumarina Station, Sylvania Station and Hillside Station during the period from 8 May 2019 to the date of the writ. That seems to me to be a proper matter over which discovery should be given and it will be so ordered.
There is next again an open-ended category of documents which is described as all correspondence and other documents by, from or to Komatsu Australia or another of the Komatsu group of companies which relate to the matter in question in the preceding column, including but not limited to, and I pause to say that the focus of these documents are the possession of and use of the loader, documents that relate to the purchase of services or parts for the loader from on or about 9 April 2020 at Komatsu's Port Hedland branch. Likewise in relation to the date of 25 May 2021. Some evidence has been produced to suggest that various items were required in regard to the loader which is strongly suggestive that the loader was being used. The documents should be discovered.
The next category is concerned with the allegation that the fourth defendant is a trustee for the Smoothy Family Trust and, as such, entered into a plant hire agreement with Monty's Haulage. The first document sought is the trust deed establishing the trust. In my opinion that is completely irrelevant to any issue which is before the court. Likewise, the following question seeking the deed or any other document by which the fourth defendant was appointed as trustee of that trust.
The next matter concerns the allegation by the defendant that a company trading as Monty's Haulage owed the fourth defendant the sum of $682,678.23. Invoices concerning that allegation, receipts, statements, correspondence and other documents are sought to be discovered. That seems to me to be a proper matter over which further discovery should be given, and accordingly I order it.
My orders are therefore that the defendant Brent Ronald Smoothy on behalf of himself and the third and fourth defendants give further and better discovery of those matters which I have identified in the text of this decision. The application is otherwise dismissed.
ANNEXURE A
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Court Officer
9 FEBRUARY 2022
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