NRMA Insurance Ltd t/as SGIO Insurance v Dunk GM as trustee for the Zena Family Trust t/as Bindoon Tiling - [2005] WADC 73

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NRMA INSURANCE LTD t/as SGIO INSURANCE & ANOR -v- DUNK GM as trustee for the ZENA FAMILY TRUST t/as BINDOON TILING [2005] WADC 73

CORAM: COMMISSIONER POWER

HEARD: 21 FEBRUARY 2005

DELIVERED : 22 APRIL 2005

FILE NO/S: CIV 2890 of 2002

BETWEEN: NRMA INSURANCE LTD t/as SGIO INSURANCE
First Plaintiff
SGIO INSURANCE LIMITED
Second Plaintiff
AND
DUNK GM as trustee for the ZENA FAMILY TRUST t/as BINDOON TILING
Defendant

Catchwords:

Practice and Procedure - Application to set aside judgment entered for non-compliance with an order requiring discovery and inspection - Whether order self-executing or whether further application required

Legislation:

Nil

Result:

Judgment set aside

Representation:

Counsel:

First Plaintiff                  :     Mr T M Clavey
Second Plaintiff             :     Mr T M Clavey
Defendant:     Mr J G Hanly

Solicitors:

First Plaintiff                  :     Nash Clavey
Second Plaintiff             :     Nash Clavey
Defendant:     Hotchkin Hanly

Case(s) referred to in judgment(s):

Burkett v Miller, unreported; FCt SCt of WA; Library No 2131; 6 September 1977
Freeman v Rabinov [1981] VR 539
Reiss v Woolf [1952] 2 QB 557
Weir v Perpetual Trustees of WA and Ors, unreported; SCt of WA; Library No 6664; 10 April 1987

Case(s) also cited:

Nil

COMMISSIONER POWER: This is an appeal from a decision of Deputy Registrar Hewitt made on 12 October 2004 where he ordered that:
1.Judgment be entered in favour of the plaintiffs with damages to be assessed.
2.The defendant do pay the plaintiffs' costs of the action and the application to be taxed in any event.
3.The time for the defendant to appeal be extended to 14 days from 12 October 2004.
The appeal by the defendant seeks to set aside that decision and in lieu seeks orders that:
1.The plaintiffs' application for summary judgment be dismissed.
2.The plaintiffs' pay the defendant's costs of the appeal.
3.The costs of the plaintiffs' application before the Deputy Registrar be costs in the cause.
4.Such further or other orders as the Court considers appropriate.
The grounds are set out in the notice of appeal dated 18 October 2004 and are as follows:
1.The learned Deputy Registrar erred in determining that the plaintiffs were entitled to summary judgment.
2.The learned Deputy Registrar erred in finding that the defendant had failed to comply with the order of Acting Principal Registrar Kingsley dated 9 February 2004.
3.The learned Deputy Registrar erred in failing to find that the order of Acting Principal Registrar Kingsley was no longer self operating or self executing.
4.The learned Deputy Registrar erred in finding that the affidavit filed by the defendant sworn 20 February 2004 did not sufficiently comply with Acting Principal Registrar Kingsley's order so as to entitle the plaintiffs to summary judgment.
5.The learned Deputy Registrar erred in failing to find that the order of Acting Principal Registrar Kingsley was a time order and, as the defendant had sworn, filed and served an affidavit within the stipulated time period, that there was no default.
6.The learned Deputy Registrar erred in determining that the chamber summons for default judgment filed 5 August 2004 was a fresh application by the plaintiffs.
The Deputy Registrar's decision was made on the basis that the defendant had not complied with par 3 of the order made by Acting Principal Registrar Kingsley, as he then was, on 9 February 2004. Paragraph 3 of that order was in the following terms:
3.Judgment be entered for the plaintiffs with damages to be assessed, unless the defendant by Garry Dunk do file and serve an affidavit stating whether he has at any time had in his possession the following documents:
3.1all relevant workers' compensation insurance documentation including policy documents and certificates of insurance for the period 1 January 1998 to 1 July 2002 taken out with SGIO Insurance Limited or NRMA Insurance Limited;
3.2all of the defendant's wage, salary and contractor payment records and books for the period 1 January 1998 to 1 July 2002
within 14 days and within the same time to give inspection of these documents ("the Order").
The plaintiffs' claim is for additional premiums under an employer's indemnity insurance policy based on an underestimation of the amount of wages and the value of contracts and sub-contracts involving the defendant. Consequently, the documents described in the Order are of some significance to the resolution of the claim.
It is apparent from the Order that the defendant Garry Dunk was required to file and serve an affidavit stating whether he has at any time had in his possession documents falling within the specific descriptions in sub‑pars 3.1 and 3.2 within 14 days. It is also apparent from the Order that the defendant was to give inspection of those documents within the same period of time.
Whether the Order should have been made is not an issue in this appeal. The critical issue in this appeal is whether the defendant has complied with the Order.
The defendant filed and served an affidavit of Garry Mervyn Dunk sworn 20 February 2004 verifying as true statements made by him in pars 1, 3 and 4 of an annexed list of documents, verifying as true the statement of fact made by him in par 2 of that list and verifying as true to the best of his knowledge, information and belief the statements made by him in par 5 of the same list.
The list of documents annexed to the affidavit of Mr Dunk sworn 20 February 2004 relevantly provided:
1.The defendant has in his possession, custody or power the documents relating to the matters in question in this action enumerated in Part 1 and Part 2 of the First Schedule.
2.The defendant objects to producing the documents enumerated in Part 2 of the First Schedule on the ground that the same are privileged.
3.The defendant has had, but has not now, in his possession, custody or power the documents relating to the matters in question in this action enumerated in the Second Schedule.
4.The documents mentioned in the Second Schedule were last in the possession, custody or power of the defendant on or about the dates mentioned in the respective documents.
5.The documents mentioned in the Second Schedule were sent by post or facsimile transmission to the respective addressees on or about the dates mentioned in the respective documents.
6.Neither the defendant nor his solicitors nor any other person on his behalf, have now, or ever had, in their possession, custody or power any document of any description whatever relating to any matter in question in this action, other than the documents enumerated in the First and Second Schedules.
Most relevant to the Order made by Acting Principal Registrar Kingsley are pars 3-5 of the list and that part of par 6 which is concerned with the past. The effect of that part of par 6 is that Mr Dunk has deposed that unless a document is described in the First or Second Schedules to the list, neither the defendant, nor his solicitors nor any other person on his behalf, has at any time had in his or their possession, custody or power any document falling within the descriptions in sub-pars 3.1 and 3.2 of the Order.
The plaintiffs by their representative, James Collum, undertook an inspection of the documents described in this list on 10 and 11 March 2004. Arguably, the Order required an inspection to take place within the same period as the defendant was required to file and serve the affidavit referred to in the Order. If that construction is correct, then there was non-compliance with that part of the Order. However, the plaintiffs do not advance that argument. Inspection invariably follows discovery. On these bases, the preferable construction is that the defendant was required to give inspection of the described documents within a further 14 days of discovery. In the absence of any argument to the contrary, I have assumed that to be what the Order was meant to convey.
The defendant contends that he has complied with the Order by filing and serving an affidavit verifying a list of discoverable documents within the prescribed time and giving inspection of those documents within his possession, custody or control within the time ordered.
The plaintiffs contend otherwise. They argue that the Order was not complied with. Specifically, they contend that both discovery and inspection were insufficient and that, as a consequence, the Order should be regarded as self-executing. The plaintiffs rely in particular on the affidavit of Mr Collum sworn 17 August 2004 in support of their arguments. Most relevantly, on par 13 and par 14 of that affidavit, in which Mr Collum deposes as follows:
13.I compared the details recorded in my notes at annexure JC2 with the details recorded in the wage documents produced by the defendant's solicitors. I noted that the wages book produced (document nos. 1 and 2) was not the wage book I inspected in July 2000 and that the book I was inspecting recorded a different set of figures to those recorded in the wage book inspected in July 2000.
14.In addition from my review of the defendant's list of documents dated 20 February 2004 and my March 2004 inspection I can say:
14.1Group certificates for the 1998/1999 period had not been discovered and produced. I know as a matter of business practice and Australian Taxation Office ("ATO") requirements that employers must file group certificates with the ATO for each financial year.
14.2The prescribed payment deduction forms referred to in paragraph 6.3 of this affidavit, recording contractor payments for the 1999/2000 period and which I inspected in July 2000, were not listed by the defendant in the list of documents and were not produced for inspection in March 2004.
The plaintiffs' complaints about compliance with the Order are met by pars 6-11 of the affidavit of Garry Mervyn Dunk sworn 2 September 2004, in which he deposes as follows:
6.I have read the affidavit of James Collum sworn 5 August 2004 in support of an application by the plaintiffs for default judgment against the defendant ("Collum's affidavit").
7.I refer to paragraph 6.1 of Collum's affidavit. Mr Collum describes a "wage book" as a large green Collier 32 money column book. This book was not a "wage book". It was a book which the defendant used to reconcile all cheques written by the defendant. The defendant did not have a large green Collier 32 money column book which could be described as a wage book. The defendant kept these books on a year basis and there were two large green books of a similar description used to reconcile cheques. These books are listed in my affidavit of documents sworn 20 February 2004 as documents numbered 3 and 4.
8.Mr Collum deposes in his affidavit at paragraph 12.2 that he inspected two Collier 32 money column cash books which were documents 3 and 4 in the defendant's list of documents. These are the one and the same documents as Mr Collum appears to be referring to in paragraph 6.1 of his affidavit.
9.With regard to paragraph 14.1 of Collum's affidavit regarding group certificates for the period 1998/1999 the defendant does not have copies of those group certificates. When Mr Collum first attended the offices of the defendant in July 2000 I believe that all group certificates then in the possession of the defendant were made available to Mr Collum for his inspection. As far as I am aware no request was made by Mr Collum at the time of his July 2000 inspection for the defendant [to] provide group certificates for the 1998/1999 period.
10.The defendant ceased trading approximately two years ago. Further, the premises from which the defendant had been operating were changed about two years ago when all the records of the defendant, which would have included group certificates, were moved from one office to another. I am aware that records relating to Bindoon were disposed of at or shortly after the time of the move and those records may have included the 1998/1999 group certificate records referred to by Mr Collum.
11.With regard to the prescribed payment deduction forms referred to in paragraph 14.2 of Collum's affidavit I believe that those forms were made available for inspection by Mr Collum when he attended the defendant's offices in July 2000. As far as I am aware no request was made by Mr Collum at the time for the production to him of these prescribed payment deduction forms. Accordingly, I believe that they were made available to him for his inspection in July 2000.
It is apparent from par 7 and par 8 of Mr Dunk's later affidavit that the defendant disputes the claim that the relevant documents were not discovered or provided for inspection. The defendant maintains that Mr Collum is mistaken about what he inspected on an earlier inspection of the defendant's documents in July 2000. The implication in par 13 of Mr Collum's affidavit is that the wages book produced and inspected by him in July 2000 has not been discovered and was not available for inspection on 10 and 11 March 2004. This is a straight forward factual dispute.
It is apparent from sub-par 14.1 that Mr Collum asserts that group certificates for the period 1998-1999 have not been discovered or produced. The defendant's response is in par 9 of Mr Dunk's later affidavit. There he deposes that the defendant does not have copies of those group certificates. He also deposes that all the group certificates then in the possession of the defendant were made available to Mr Collum for his inspection when he attended the defendant's offices in July 2000. Furthermore, he deposes that no request was made by Mr Collum at the time of his July 2000 inspection for the defendant to provide group certificates for that period. In par 10 of the same affidavit, Mr Dunk then asserts that certain records were moved from one office to another about 2 years earlier when the defendant moved premises and that certain records were disposed of at or shortly after the time of that move and that those records may have included the group certificates for the relevant period. There is no clear concession in par 9 or par 10 that the defendant has at any time had in his possession group certificate records for the period 1998-1999. Absent such a concession, the deposition in par 6 of the list of documents applies, with the net effect that the defendant's position is that he has never had any such group certificate records. It is not surprising that the plaintiffs are unable to challenge this assertion other than in the way in which they have in sub-par 14.1 of Mr Collum's affidavit.
In sub-par 14.2 of Mr Collum's affidavit, he deposes that the prescribed payment deduction forms, referred to in sub-par 6.3 of his affidavit, recording contractor payments for the 1999-2000 period and which he inspected in July 2000, were neither discovered by the defendant in his affidavit sworn 20 February 2004 nor produced for inspection on 10 or 11 March 2004.
The defendant's response is contained in par 11 of Mr Dunk's later affidavit. The response is that he believes that those forms were made available for inspection by Mr Collum when he attended at the defendant's offices in July 2000, but that no request was made by him at the time for the production to him of those forms. As I understand par 11, it appears to assert that they were made available for inspection in July 2000, but no request was made by Mr Collum to inspect those documents. If my understanding of what par 11 should mean is correct, then there appears to be a factual dispute between Mr Collum and Mr Dunk about whether Mr Collum inspected those forms in July 2000. Paragraph 11 does not respond to the assertion in sub-par 14.2 that the forms were not listed by the defendant in the list of documents verified by Mr Dunk's affidavit sworn 20 February 2004 and the assertion that they were not produced for inspection on 10 or 11 March 2004. Nonetheless, item no. 104 in Part 1 of the First Schedule to the list of documents includes a reference to "Bindoon Tiling PPS records" for the period 1 July 1999 to 1 July 2000. It is not entirely clear whether that is a reference to the forms about which sub-par 14.2 complains. It may or may not be. If it is then it may have been that those documents were made available for inspection on 10 and 11 March 2004. In any event, par 11 is of little assistance in this regard. It is not clear that the complaint of non-compliance in sub-par 14.2 is justified.
Therefore and having regard to the specific reasons advanced by the plaintiffs for contending that the defendant has not complied with the Order, I have some difficulty accepting the proposition that the defendant has not complied.
For there to be non-compliance with the Order, I need to be satisfied that the affidavit verifying the list of documents and giving discovery was and is insufficient and/or that inspection within the terms required has not been given. In this case, although the form of Mr Dunk's affidavit verifying the list of discoverable documents and sworn 20 February 2004 is more appropriate for general discovery and is not tailored specifically to comply with the Order, it is nonetheless sufficient in my view and does, in effect, comply with the requirements of the Order insofar as they relate to discovery (Burkett v Miller, unreported; FCt SCt of WA; Library No 2131; 6 September 1977; Weir v Perpetual Trustees of WA and Ors, unreported; SCt of WA; Library No 6664; 10 April 1987; Freeman v Rabinov [1981] VR 539).
It follows from my observations and reasoning that I am also satisfied that there has, in effect, been compliance with the Order insofar as it is concerned with inspection.
Having reached the conclusion that the defendant has complied with the Order, it is necessarily the case that summary judgment cannot be, and should not have been, entered against the defendant.
If the plaintiffs' contention is that the affidavit of discovery is deficient in its content or that it is, as it has sometimes been described, illusory, then it ought to be the subject of a further application. In any event, there is no basis to treat the Order as self-executing (Reiss v Woolf [1952] 2 QB 557).
For these reasons, I will set aside the judgment which has been entered against the defendant for damages to be assessed and hear the parties on any consequential orders.