Novo Tank Pty Ltd (In Liquidation) v Formaction Concrete Civils Pty Ltd (No 3)
[2015] FCA 142
•26 February 2015
FEDERAL COURT OF AUSTRALIA
Novo Tank Pty Ltd (In Liquidation) v Formaction Concrete Civils Pty Ltd (No 3) [2015] FCA 142
Citation: Novo Tank Pty Ltd (In Liquidation) v Formaction Concrete Civils Pty Ltd (No 3) [2015] FCA 142 Parties: NOVO TANK PTY LTD (IN LIQUIDATION) ACN 050 210 823 and RICHARD ALBARRAN AND STEVEN ARTHUR GLADMAN IN THEIR CAPACITY AS LIQUIDATORS OF NOVO TANK PTY LTD (IN LIQUIDATION) ACN 050 210 823 v FORMACTION CONCRETE CIVILS PTY LTD ACN 121 583 266 and UNITED INDUSTRIES (WA) PTY LTD ACN 097 788 344 File number: NSD 1982 of 2013 Judge: PERRAM J Date of judgment: 26 February 2015 Catchwords: DISCOVERY – whether plaintiffs’ discovery overly inclusive Cases cited: Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183 cited
Novo Tank Pty Ltd (In Liquidation) v Formaction Concrete Civils Pty Ltd (No 2) [2014] FCA 842 citedDate of hearing: 26 February 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Plaintiffs: Mr C D Freeman Solicitor for the Plaintiffs: Nelson McKinnon Lawyers Counsel for the Second Defendant: Mr E A J Hyde
Solicitor for the Second Defendant: Squire Patton Boggs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1982 of 2013
BETWEEN: NOVO TANK PTY LTD (IN LIQUIDATION) ACN 050 210 823
First PlaintiffRICHARD ALBARRAN AND STEVEN ARTHUR GLADMAN IN THEIR CAPACITY AS LIQUIDATORS OF NOVO TANK PTY LTD (IN LIQUIDATION) ACN 050 210 823
Second PlaintiffAND: FORMACTION CONCRETE CIVILS PTY LTD ACN 121 583 266
Second DefendantUNITED INDUSTRIES (WA) PTY LTD ACN 097 788 344
Fifth Defendant
JUDGE:
PERRAM J
DATE OF ORDER:
26 FEBRUARY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Second Defendant’s discovery application be dismissed.
2.The Second Defendant is to pay the Plaintiffs’ costs of the discovery application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1982 of 2013
BETWEEN: NOVO TANK PTY LTD (IN LIQUIDATION)
First PlaintiffRICHARD ALBARRAN AND STEVEN ARTHUR GLADMAN IN THEIR CAPACITY AS LIQUIDATORS OF NOVO TANK PTY LTD (IN LIQUIDATION) ACN 050 210 823
Second PlaintiffAND: FORMACTION CONCRETE CIVILS PTY LTD ACN 121 583 266
Second DefendantUNITED INDUSTRIES (WA) PTY LTD ACN 097 788 344
Fifth Defendant
JUDGE:
PERRAM J
DATE:
26 FEBRUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 9 July 2014, I made orders requiring, relevantly, the plaintiffs to give discovery of the documents which were directly relevant to the issues raised by the pleadings or in the affidavits. The parties in this case appear to be unable to reach the kind of consensus about trivial procedural questions which in other cases appears to be readily reached. As part of that general malaise, I resolved on 11 August 2014 the profound question of whether the orders I had made on 9 July 2014 ought not to have the words “or in the affidavits” deleted from them and, in what was no doubt a substantial addition to the jurisprudence of this country, concluded that those words should be deleted: see Novo Tank Pty Ltd (In Liquidation) v Formaction Concrete Civils Pty Ltd (No 2) [2014] FCA 842 at [8].
At [7] of the same reasons, I indicated pessimism about the parties’ ability to proceed without further pointless disagreement. I sought to minimise future disagreements, saying:
‘7.There is currently no application before me about these issues and the applicants have not been heard in reply on them. In an effort to head off at the pass, as it were, further disputation about these spot fires I will indicate my preliminary view that:
(a)there is an issue on the pleadings between the parties as to whether the second applicants were appointed ‘in accordance with s 436A of the Corporations Act 2001’. This makes the basis and circumstances of their appointment a topic relevant to discovery;
(b)the same is true of their position as liquidators;
(c)solvency is a live issue on the pleadings throughout the relation back period (and hence discoverable); and
(d)whether Formaction received payments from Novo Tank in good faith is live on the pleadings (and hence discoverable).’
My hope that I would prevent the outbreak of spot fires has, I regret, proved forlorn. The present dispute has a surreal aspect to it. On 7 July 2014, that is, before my reasons for judgment and before the orders for discovery themselves were made, the former solicitors for the second defendant wrote to the solicitors for the plaintiffs and made demands as to what should be discovered. Those demands were generous in their scope and ambit.
Following the orders which were made on 9 July and, indeed, the clarification of those orders on 11 August 2014, there was at no time prior to discovery being provided by the plaintiffs any indication from the second defendant’s solicitors that the grand claims of the letter of 7 July 2014 were being abandoned. On 7 October 2014 the second defendant changed solicitors. Subsequently, discovery was provided by the plaintiffs.
I say that the dispute before me is surreal because the usual course that these matters take is that the party who has demanded discovery complains that they have not received enough. In this case, however, the second defendant’s complaint is that it has received too much. There may be cases where one can imagine that this could be a real problem. For example, in a mass tort claim or a substantial commercial case, one can readily imagine that discovery could be used by the party providing it as an instrument of oppression. This could be done by the expedient of producing hundreds of thousands of documents and putting the other party to the expense of having to inspect them.
It was to concerns of that kind that Applegarth J addressed himself in Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183 at [17] and following. In this case, the number of documents which has been discovered is, according to the affidavit evidence before me, 3,322 documents. These have been provided electronically in five electronic folders. The evidence before me does not disclose what volume of documentation is involved, however two binders of paper have been placed before me consisting of various documents extracted from that list of 3,322 documents, numbering about 100 documents.
My impression is that the volume of this documentation, whilst large, is not of the kind to constitute an oppressive burden on a party. The solicitor for the second defendant has deposed to the fact that it would take him no less than 100 hours to read these documents. I confess I do not agree with that estimate. The documents I have seen do not look of that order and I would be surprised if that estimate were correct. It seems that the present application is a disproportionate response to the difficulty which has arisen. More is that so in the circumstances which obtain, where it was the second defendant’s former solicitors who, in their letter of 7 July 2014, made the larger claims for discovery which now seem to have been abandoned. The disproportionality is underscored in circumstances where until the discovery was given there was no indication from the second defendant’s camp that its demands of 7 July 2014 had been withdrawn.
Those would be sufficient reasons to reject the application. In any event, I am far from persuaded that the material which has been provided is not discoverable in the requisite sense. I accept that there are some documents in the binders which were placed before me today which may, indeed, not have been discoverable. But on the whole, I am satisfied that the matters which Mr Agosta, the plaintiffs’ solicitor, has set forth as the reasons for the documents being discovered are satisfactory. There is the additional reason that a more fulsome explanation of the relevance of the documents was provided in the plaintiffs’ written submissions of 10 February 2015, prepared by Mr Freeman of counsel. These explain not only the relevance of the material, but also explicitly withdraw a number of documents from the discovery process. Amongst those which were withdrawn from the discovery process is at least one which was submitted to me by the second defendant to show how the discovery provided was overly broad. In circumstances where that document had actually been withdrawn from the discovery, it seems to me that that did not take matters very far. For all of those reasons, I would dismiss the present application with costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 6 March 2015
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