Orion (WA) Pty Ltd v NORLISK Nickel Cawse Pty Ltd
[2009] WASC 388
•16 DECEMBER 2009
ORION (WA) PTY LTD -v- NORLISK NICKEL CAWSE PTY LTD [2009] WASC 388
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 388 | |
| Case No: | CIV:1445/2009 | 1 DECEMBER 2009 | |
| Coram: | MASTER SANDERSON | 16/12/09 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application granted in part | ||
| B | |||
| PDF Version |
| Parties: | ORION (WA) PTY LTD (ACN 056 001 033) NORLISK NICKEL CAWSE PTY LTD (ACN 099 027 559) |
Catchwords: | Practice and procedure Application for further and better discovery Turns on own facts |
Legislation: | Nil |
Case References: | Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
NORLISK NICKEL CAWSE PTY LTD (ACN 099 027 559)
Defendant
Catchwords:
Practice and procedure - Application for further and better discovery - Turns on own facts
Legislation:
Nil
Result:
Application granted in part
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr M P Bruce
Defendant : Mr N M Beech
Solicitors:
Plaintiff : Lavan Legal
Defendant : Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
(Page 3)
1 MASTER SANDERSON: This is the plaintiff's application for further and better discovery. In a schedule to the application to the case management registrar, there are four documents, or categories of documents, which the plaintiff says have not been, and should be, discovered by the defendant. At the conclusion of the argument, I indicated to the parties that I would order discovery of three of the categories of documents. I reserved my decision in relation to the fourth category. These reasons will dispose of all matters outstanding and explain why I ordered discovery in three categories.
2 Before setting out the documents sought by the plaintiff, it is necessary to say something about the plaintiff's claim. What follows is a summary taken from the amended statement of claim filed 5 October 2009. The plaintiff alleges that on 30 July 2008 the plaintiff agreed with the defendant that the plaintiff would supply plant, equipment and personnel to allow it to undertake earthmoving operations at the defendant's Cawse laterite nickel operation. This agreement is referred to in the statement of claim as the 'services contract'.
3 The services contract was not reduced to writing - at least not in the sense that it is possible to refer to a written contractual document which attempted to embody all the terms of the contractual arrangement between the parties. The plaintiff alleges there were certain 'express written material terms' but these terms are drawn from certain memorandum, emails and an unsigned draft contract. The plaintiff also alleges there was an 'express oral material term' of the services contract. One of the express terms is said to be that the defendant could terminate the plaintiff's engagement on 60 days' written notice. As an alternative, it is pleaded that the 60 day notice period is an implied term of the services contract.
4 There are further pleas in relation to the services contract dealing with alleged misleading and deceptive conduct and estoppel. But these pleas are not presently of concern. What the pleadings make plain is that there is a significant issue between the parties as to the terms of any contractual relationship embodied in the services contract and in particular whether or not that contract contained a requirement that the defendant give 60 days' notice of termination.
5 For its part, the defendant says the parties entered into a contract in writing dated 1 June 2006. This, the defendant defines as 'the 2006 contract'. It is said this contract expired on 1 May 2008 and thereafter the plaintiff provided its services 'in the absence of a contract': see par 3(b)(iv) of the amended defence. The defendant denies the plaintiff's
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- claim, first that there was in existence the services contract and second, if such a contract was in existence, that there was any notice of termination required.
6 The plaintiff says it had a further contract with the defendant. This, it defines as the 'works contract'. Once again this contract was not in writing in the same way as the plaintiff says that the services contract was not in writing. Once again, there was a draft contract and discussions between the parties. Once again, it is alleged that there was a term in the works contract - either express or implied - that the defendant would give the plaintiff 60 days' notice of termination. The plaintiff says this was not done, and as a result the plaintiff has suffered loss and damage. Once again, there are pleas of misleading and deceptive conduct. Again, this plea is not presently of concern.
7 It is of assistance to identify some of the individuals who were involved in the interaction between the plaintiff and the defendant. Mr Stuart Lister was the defendant's mining manager from 2004 to May 2005. He was replaced in May 2005 by Mr Jake Fitzsimons, who was mine manager until April 2008. In April 2008, Mr Fitzsimons was replaced by Mr Stephen Jeffers, who remained in that position until August 2008. Mr Greg Burke was the mine superintendent from 2004 to 20 August 2008. From 20 August 2008 to 25 November 2008, he was the acting mining manager
8 Between 11 January 2006 and 30 January 2007, there were at least 10 meetings between representatives of the plaintiff and the defendant. On behalf of the defendant, at most of these meetings, it was represented by one of the persons I have referred to above. However, a number of other individuals attended these meetings. These included a Mr Mark Cronin, Mr Richard Harding, Mr Evan Hansen, Mr Terry Young, Mr Tim Dobson and Mr Dean Merrilees.
9 Given the way the plaintiff's case is structured, the evidence of these individuals is crucial. This application is largely directed at obtaining documents produced or used by the defendant's employees who attended various meetings with the plaintiff's employees and who were responsible for the contractual negotiations. It is not difficult to see why the plaintiff regards any documents produced by these individuals as important to its case.
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10 For the sake of completeness, I should mention that on 16 October 2009, the defendant provided a supplementary list of documents verified by affidavit. The affidavit is affirmed by Kelly Michelle Carter, the defendant's legal counsel. In that affidavit, Ms Carter goes to some lengths to explain what has become of documents, the searches undertaken to locate documents requested and to justify why certain documents have not been discovered. In dealing with this application, I have taken into account Ms Carter's affidavit.
11 The four categories of documents referred to in the application are as follows:
1. All emails or other correspondence between Messrs Mark Davies, Stephen Jeffers, Mr Sam Vogel or other parties regarding the subject matter of the email exchange between Messrs Davies, Jeffers and Vogel dated 30 April 2008 (being discovery document number 31 of the First Schedule of Part 1 of the defendant's list of documents verified by affidavit of Kelly Michelle Carter affirmed 5 June 2009).
2. The 'original contract' referred to at point 5 under the heading 'Situation' on page 2 of the file note prepared by Mr Greg Burke dated 20 October 2008 (being discovered document number 20 for the defendant's list of documents).
3. All emails and other correspondence between Messrs Stuart Lister, Greg Burke, the plaintiff or other parties regarding contractual negotiations between the plaintiff and the defendant for provision of the work pursuant to the Works Contract … as referred to in the file note prepared by Mr Burke dated 20 October 2008 (being discovery document number 20 of the defendant's list of documents) and the memorandum from Mr Burke to various parties dated 11 November 2008 (being discovery document number 27 of the defendant's list of documents).
4. A spiralex notebook used by Mr Jake Fitzsimons to record the minutes of meetings held between Mr Fitzsimons and the plaintiff in the period 2006 to 2007, concerning the contractual negotiations between the parties.
12 While there was no dispute as to the applicable principles in an application such as this, it is as well to restate them so as to provide a measure against which it can be determined whether the documents requested ought be discovered. In Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60, Master Newnes (as his Honour then was) set out four principles. They are:
(Page 6)
- (1) the court must have reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered;
(2) 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 contents;
(3) relevance may either appear from the nature of the document or its contents and if the latter, there must be a prima facie case as to the contents before an order for further discovery will be made;
(4) where an application is made in respect of a document referred to in 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.
13 The submissions put by counsel for the defendant appeared to be predicated on the assumption that the plaintiff's case could not be proved. As I have indicated above, the plaintiff alleges that certain terms of the 2006 contract were transported into the services contract and the works contract. As I understand the submissions put on behalf of the defendant, the defendant says that such an argument is untenable and any discovery that relates to such an untenable argument ought not be ordered. Such an argument must be rejected. The terms of the services contract and the works contract are clearly issues for trial and any documents which relate to that question must be discovered.
14 Turning first to category 1, annexure CT 9 to the affidavit of Chantel Taylor sworn 12 October 2009 and filed in support of this application, provides a copy of the email chain which is referred to in the category. In Ms Carter's affidavit she refers to two documents which would fit into this category, but which she alleges are not discoverable. It is said they are not discoverable because they were prepared for insurance purposes only and that they were concerned only with the 2006 contract. In my view, it is appropriate to start by ordering discovery of these two documents. It is not entirely clear whether any other documents which would fit into this category are in existence. If, after inspecting the two documents concerned, the plaintiff is of the view there exist further documents which are related to this issue, then it can, if it wishes, pursue the issue. But for the present, it is appropriate that only the two documents which the defendant acknowledges exist, be discovered.
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15 As to category 2, appearing as annexure CT 10 to Ms Taylor's affidavit is a file note prepared by Mr Greg Burke dated 20 October 2008. In that file note there is a reference to an 'original contract'. Reference is also made to 's 2.4' of the so-called 'original contract'. The plaintiff is not aware which document is being referred to. As I have said, there was no formal written contract between the parties. There were drafts prepared. But none of the documents in the plaintiff's possession contain 's 2.4' in a form which is consistent with the reference made to that provision by Mr Burke in his memorandum.
16 During the course of argument, I put to counsel for the plaintiff that his concern might better be addressed by administering interrogatories. However, counsel submitted that the document in question is sufficiently identified in the description contained in category 2 and as the evidence makes it plain that Mr Burke is freely available to answer any inquiries the defendant might make, an order for discovery is appropriate. I accept that submission.
17 Furthermore, it is clear an order for discovery in relation to this 'original contract' is appropriate. Whether the document will be directly relevant is another matter. But it must figure in the factual matrix the plaintiff says supports its case. The file memorandum of Mr Burke is discoverable - the document referred to in it should also be discovered.
18 The third category presents the most difficulty. It relates to a memorandum prepared by Mr Burke on 11 November 2008 which appears as CT 11 to Ms Taylor's affidavit. In the memorandum, Mr Burke is clearly wrestling with the issues of how much the defendant paid the plaintiff in relation to the works contract and the contractual basis upon which those payments were made. In an attempt to work out the position, Mr Burke says he has contacted Mr Fitzsimons and discussed the matter. It is not clear from the memorandum whether Mr Burke has been in contact with Mr Lister. To some extent this memorandum follows on from Mr Burke's earlier memorandum of 20 October 2008. Taken together, these two memorandums do not necessarily indicate that there are any further documents the defendant should discover. It may be the memorandum was drawn on information provided verbally to Mr Burke by Mr Fitzsimons and perhaps Mr Lister. It must also be said that Ms Carter's affidavit does not inspire confidence that the investigations undertaken by the defendant in answering this application have uncovered all relevant documents. Without going into detail, it is sufficient if I say there are technical problems in searching all of the emails that might have passed within the defendant.
(Page 8)
19 On balance, I am satisfied that no order ought be made in this category. I have reached this conclusion for two reasons. First, it is not entirely clear that any such documents - be they emails or other file notes - actually exist. They might, but really that is supposition. Second, the probative value of any note which might turn up as a result of further searching on the part of the defendant would be, at best, be marginal. To require the defendant to undertake such a search with all the costs involved, is unnecessary.
20 Finally, there is the spiralex notebook used by Mr Fitzsimons. Clearly, that is a relevant document and it ought to be discovered. Curiously, Ms Carter's affidavit does not deal with this notebook. Its existence is not denied in that affidavit or in the defendant's submissions. It may be the notebook is the personal property of Mr Fitzsimons and as such, is not within the power or control of the defendant. But this issue ought be cleared up and if the defendant has access to the notebook, then it ought be discovered and made available for inspection.
21 I will make orders accordingly. Subject to hearing from counsel, the defendant ought pay the plaintiff's costs of this application including the reserved costs.
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