Price v Greenland - [2009] WADC 30

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PRICE -v- GREENLAND [2009] WADC 30

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 5 MARCH 2009

DELIVERED : 5 MARCH 2009

FILE NO/S: CIV 2213 of 2008

BETWEEN: DR MICHAEL SCOTT STUART PRICE
Plaintiff
AND
DR HUGH GREENLAND
Defendant

Catchwords:

Practice - Western Australia - Application to photocopy documents produced to the court under subpoena

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Plaintiff: No appearance
Defendant: No appearance

Solicitors:

Plaintiff: Williams & Hughes
Defendant: Chris Stokes & Associates

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

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Jagadish v Coles Supermarkets Australia Pty Ltd [2008] WADC 57

DEPUTY REGISTRAR HARMAN: On 23 January 2009, the plaintiff obtained an order for return prior to trial of a subpoena then proposed to be issued to Nigel Hamilton, the manager of the Booragoon branch of National Australia Bank. The witness produced two spiked bundles and some loose documents. Paragraph 4 of the Order provides that subject to approval a party may obtain a copy of a document. The plaintiff sought to copy a number of documents flagged with orange paper. That application was refused. He has now sought reasons for the decision.
The issue determined was whether copies should be taken of particular documents involuntarily produced to the court by a person not a party to litigation. The discretion to approve copying is unfettered. The onus of persuasion is on the applicant. The task of discharging the onus is not advanced by the fact that limits would be imposed on the use to which any copy was put.
In his affidavit of 22 January 2009, the plaintiff's solicitor deposes:
"In this action, the plaintiff pleads in the statement of claim:
3.1By a contract made in or about late February 2007 between Dr Price and the Defendant (Dr Greenland), Dr Greenland agreed to buy and Dr Price agreed to sell the goodwill, plant and equipment of the Dr Price's gynaecology and obstetrics practice (First Contract) (Practice) (paragraph 2 SOC);
3.2By an agreement made on or about 28 March 2007 between the Dr Price, on behalf of his superannuation fund (Fund) and Dr Greenland, Dr Price agreed to sell and Dr Greenland agreed to buy a half share of the consultation rooms (Rooms) where Dr Price ran the Practice (First Agreement) (paragraph 5 ASOC)(sic);
3.3By a variation to the First Contract and the First Agreement, Dr Greenland offered to buy and the Dr Price, on behalf of the Fund, agreed to sell the Fund's entire interest in the Rooms at the indicative global figure for the Practice and the Rooms of $1.559 Million (paragraph 7 SOC)."
My reading of the plaintiff's pleading is that the variation was no more than proposed and that his relevant case is founded on the defendant's repudiation of the first contract. For the sake of completeness I will add that the plaintiff also claims for loss arising from misrepresentation. The contended misrepresentation was that the defendant would acquire the goodwill and plant and equipment. In his defence the defendant denies the contract, agreement, variation and in essence the alternative claim. He asserts that he agreed to lease a room at the plaintiff's premises and that he declined the plaintiff's offer that he purchase the rooms.
In seeking reconsideration of the application, by letter dated 19 February 2009, the plaintiff's solicitor wrote:
"Mr Robertson of this office, a solicitor with the day to day conduct of this matter who has a banking background of some 15 years experience, attended the Registry and identified (with orange flags) documents relevant to the facts in issue. Whilst it is not possible to identify with great clarity (without the benefit of having the documents) the relevance of all the flagged documents, Mr Robertson identified each of the flagged documents as relevant to the facts in issue.
By way of example, an email from Mr Hamilton, the Manager of the NAB, Booragoon Branch in or about June 2007 in which Mr Hamilton said words to the effect 'the opportunity to buy the rooms has come up sooner than expected … we will have to consider how it will be possible to structure the finance'. Another relevant document was the valuation of Dr Price's gynaecology and obstetrics business (i.e. the subject matter of the dispute)."
The first three flagged documents are on a spike on which the first document is entitled "Credit Application Section". They are:
1.copy of a letter dated 23 February 2007 from National Australia Bank addressed to the defendant and his wife;
2.facsimile of a letter dated 23 January 2007 from Cormack Sharkey & Co. to the plaintiff and his wife; and
3.internal memorandum dated 7 February 2007 from the witness to Ben Jones/Richard Eddy.
The next group of flagged documents, also secured by a spike, are:
4.handwritten note that I identify by its first notation as "3/12";
5.handwritten note that I identify by its first notation as "Company Name – Must";
6.copy letter dated 25 May 2007 from the bank to the defendant and his wife;
7.handwritten note that I identify by its first notation as "13/6";
8.record of email dated 18 June 2007 from the witness to the defendant;
9.photocopy letter dated 7 May 2007 from Adair Settlements Pty Ltd to NAB Settlements;
10.copy letter dated 10 May 2007 from the bank to the defendant and his wife;
11.record of the Bank's internal email dated 9 May 2007;
12.part handwritten note that I identify by its heading "Approximate Estimates of Costs"; and
13.record of email dated 18 January 2007 from defendant to the witness.
The balance of the relevant documents are loose on the file. They are as follows:
14.letter dated 6 March 2007 from Macri Partners to the bank; and
15.a bound document dated 22 February 2007 entitled Deed of settlement of the Padgate Trust.
Document 1 conveys approval of a loan to purchase real estate and is consistent with other documents on the file that reveal the purchase of property at Mosman Park by the defendant's wife. One such document is a loan application completed on 19 February 2007 in which the section of the application headed "Loan Request" has been marked so as to indicate that the applicants (the defendant and his wife) claim to be entitled to a First Home Owner's Grant. The fact that the plaintiff seeks a copy would suggest that there is something significant about either the proposed loan or the date of its approval. On all that I have before me I am unable to discern what it would be.
Document 2 relates to particular assets associated with the plaintiff's practice. I infer that it was generated at the plaintiff's request. What appears to be the same document (although not described as a facsimile) appears as item 25 in Part 1 of the First Schedule to the plaintiff's discovery. Although the fact that the plaintiff seeks a copy suggests that there is something significant about the particular document, it is not annotated other than by facsimile transmission data. The date of transmission is the same as the date of the letter and it was transmitted from equipment that recorded the name of the author.
Document 3 relates to the process of valuing land described as lot 236 Biscayne Way, Jandakot. The information that it conveys indicates the existence of a building contract, particular works that are beyond the scope of the works of the contract and their cost. It refers to the utility of the proposed construction for the purposes of "any business in the food processing industry". The content of the document has no obvious connection with any of the other documents produced. It has no bearing upon any feature of the pleadings. But for the fact that it is part of what was produced in response to the subpoena, there is nothing to suggest any connection between the subject matter of the document and either the defendant or his wife. The only feature of the document that is common with the litigation is that its date coincides with the period canvassed by the pleadings. In my opinion there is reason to consider that it has been misfiled by the Bank.
Document 4 does not convey anything other than the subject matter of the defendant's enquiry and what I take to be the day that the note was taken, 3 December. According to the evidence of the plaintiff's solicitor, on 26 November 2008 the plaintiff had written to the defendant in part as follows:
"Your client has not discovered any documents from the National Australia Bank (NAB) relating to his attempts to obtain finance.
Your client's application for finance to the NAB is relevant to the reason why your client repudiated the first contract. Please confirm that your client will discover documents relating to this inquiry for finance with NAB.
We are instructed that if your client does not discover documents relating to his application for finance to NAB, we are to issue a chamber summons for the early return of a subpoena …"
The particular day in the year 2008 may have been significant for the purposes of the case upon which the application for the issue of the subpoena was founded, however but for one allegation, the relevant period constructed by the pleadings is from January to August 2007. The exception is that the defendant alleges that the plaintiff ceased booking patients in August 2006. There is nothing to indicate that either the note or its content has any bearing upon the substantive issues between parties.
Document 5 bears no date. It is a short handwritten note that includes the words "Michael may finance over 3 years which means NAB … 3 lump sums … 3 years". The context would suggest that "Michael" is a reference to the plaintiff.
Document 6 refers to a refund of stamp duty which the author expresses as "relating to your home loan". The quantum of the refund is insignificant as measured by the amounts canvassed in the pleadings.
Document 7 bears handwriting on each side of a single page. I consider that the notes are evidence of a discussion between the defendant and the witness relating to the issues between the parties.
Document 8 contains the passage to which the plaintiff's solicitor referred in his letter seeking reconsideration: "The rooms purchase has come up a little too soon when comparing to your circumstances". It records a particular communication between the defendant and the witness.
Document 9 records processes relating to the purchase of the Mosman Park property by the defendant's wife. So do documents 10 and 11.
Document 12 contains the plaintiff's name and accordingly would be relevant to the issues in the litigation. There is no basis upon which to determine the significance of either the printed or handwritten parts of the document. The author of the printed part is not apparent and I assume that the witness was the author of the handwritten part.
Document 13 relates to the proposal for establishing a trust, business account and EFTPOS facility.
Documents 14 and 15 relate to the establishment of the trust.
Of the documents sought to be copied, five relate to dealings between the parties. As to the balance of the documents; there being nothing that would reveal the purpose for which copies are sought, there was no basis upon which to exercise discretion in the plaintiff’s favour.
In the letter of the plaintiff's solicitor of 19 February 2008 there is nothing other than relevance to justify the application. Although want of evidence has told against the plaintiff, that should not be taken to convey that relevance would speak to his success. The history prior to the date of that letter reveals that the applicant considered that he needed only to apply. It was upon the refusal of an application to copy all documents produced that the application for the orange flagged documents was made.
Four of the five relevant documents are in whole or in part handwritten and to the extent that it is handwritten, I infer was created and kept by the witness exclusively for the Bank's purposes. In my opinion the circumstances whereby the documents came into the custody of the court would determine that an applicant would need to disclose his interest in having copies of the documents generated. Unless he does so in my opinion it is appropriate to highlight the deficiency.
I might infer that convenience or the need for efficiency in the process of note taking prompted the application. In some cases such considerations would emerge as real factors in an application for copies. My assessment of the handwritten notes is that they would reduce to about an A4 page with room to spare.
In Jagadish v Coles Supermarkets Australia Pty Ltd [2008] WADC 57 I gave reasons for considering that a Registrar was not bound by what is expressed in the reasons for decision in Commonwealth of Australia v Albany Port Authority [2006] WASCA 185. In that case the court had referred to reasons given in other decisions upon which I would reach the same conclusion. A consistent theme in all of the reasons that I canvassed in Jagadish v Coles Supermarkets Australia Pty Ltd (supra) was that in the process of considering an application for leave to issue a subpoena, the court would entertain the prospect that the applicant would have a legitimate forensic purpose in gaining access to documents. It is fair to say that I have some considerable misgivings with the proposition that to the end of considering that an applicant had discharged the onus the court would either propose or accept such a meaningless term. In the case before me the plaintiff has had and continues to have the opportunity to inspect the documents, to identify those relevant to the issues in the action and to make notes as to their content both for the purposes of the application and getting up the case for trial. Having canvassed the pleadings and the content of the relevant documents I do not consider that the prospect that the plaintiff may have some such unspecified purpose would add anything to his case.
As for document 2, it is simply a document that is held by the Bank. On all of the indications the plaintiff has the original. I do not acknowledge that the plaintiff has travelled any distance down the path of persuading the court that he should be provided with a copy of a facsimile copy of the same document.
As for document 5, I accept that the very fact that I am unable to decipher two of the words from the passage that I have cited would provide some impetus to the application. However taking a broader view I consider that the gist of the relevant part of the note is evident.
In my opinion, on the evidence and information before me, to have approved copying of the flagged documents could only have resulted from a failure to recognise that the applicant carries the onus.