Proude v Visic

Case [2012] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Civil)

PROUDE v VISIC & ANOR

[2012] SASC 184

Judgment of The Honourable Justice Blue

15 October 2012

PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - GENERALLY

PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - USE OF DOCUMENTS

PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - AT WHAT STAGE OF PROCEEDINGS

The plaintiff is suing the defendants in negligence for losses suffered as a result of a bushfire on 10 and 11 January 2005. The plaintiff also claims to bring the action on behalf of all persons who sustained property loss caused by the bushfire. He is applying for authority to maintain the action as a representative action under rule 81 of the Supreme Court Rules 2006. The defendants are opposing that application and in the alternative seek security for costs under rule 81 or rule 194. Those contested applications are listed for hearing in November.

Mr Visic and the CFS seek disclosure of documents and/or information relating to the funding and beneficiaries of the action for the purposes of and ancillary to the interlocutory applications for authorisation and security for costs.

Held:

1.      The Court has power under rules 116(1) and 117(1) to make the orders sought if satisfied it is necessary in the interests of justice.

2.      The documents and information sought are not sufficiently demonstrated to be relevant to the authorisation and security for costs applications.

3.      Application refused.

Supreme Court Act 1935 (SA) s 40; Corporations Act 2001 (Cth) s 1335; Supreme Court Civil Rules 2006 (SA) r 81, r 116, r 117, r 136, r 138, r 194, r 263; Supreme Court Civil Rules 1987 (SA) r 3.04(g); Supreme Court Rules 1947 (SA) Order 31, Rules 10-17, referred to.
Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136; Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19, discussed.
Associated Dominions Assurance Society Pty Ltd v John Fairfax and Son Pty Ltd (1952) 72 WN (NSW) 250; Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155; Bell Wholesale Co Ltd v Gates Export Corporation (No 2) (No 2) (1984) 2 FCR 1; Caboche v Southern Equities Corp Ltd [2001] SASC 55; Duke Holdings Ltd (in liquidation) v Duke Group Ltd (in liquidation) [2009] SASC 245; Friends of Elliston - Environment & Conservation Inc v State of South Australia (No 2) [2007] SASC 325; (2007) 250 LSJS 425; Hunt & Boyce v Judge Russell (1995) 63 SASR 402 ; Knight v FP Special Assets Ltd (1992) 174 CLR 178; Nedlands Pty Ltd v Chisholm [1999] SASC 455; Normanville Constructions Pty Ltd v Callan  (SASC, Nos 5012, 31 March 1995, unreported); Southern Equities Corporation Ltd (in liquidation) v Bond (No 3) [2000] SASC 318, considered.

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Proude v Visic [2012] SASC 184
Case
[2012] SASC 184
Decision Date

CaseChat Overview and Summary

In the case of Proude v Visic, the primary focus was on the interlocutory application made by Mr Visic, supported by the CFS, seeking orders related to disclosure of documents and information concerning the funding and potential beneficiaries of the action. The application was made in the context of broader authorisation and security for costs issues. The court was tasked with determining whether it was necessary in the interests of justice to disclose specific documents and information, including the identities of the Group Members and their estimated global losses.

The legal issues the court had to address were primarily concerned with the scope and timing of discovery and inspection of documents. Key questions included whether the documents in question were relevant to the issues to be argued, the appropriateness of the stage at which the disclosure was sought, and the necessity of such disclosure for a fair and just resolution of the proceedings. Additionally, the court had to consider the balance between the right to discover documents and the potential prejudice that such disclosure might cause.

The court concluded that while the identification of the Group Members and their estimated global losses would be relevant to the issues to be argued in November, it was not necessary in the interests of justice to make the orders sought by the defendants. The court declined to order the disclosure of the specific documents or information sought, as it was not convinced that such disclosure was essential for a fair hearing of the case. However, the court did order that particulars of the Group Members and their estimated global losses be provided prior to the November hearing. The court also indicated that it would hear the parties regarding the precise orders to be made.

The court's decision was based on a careful consideration of the relevance and necessity of the documents in question, the potential prejudice to the plaintiffs, and the overall interests of justice. The court found that the plaintiffs had not demonstrated a compelling need for the extensive disclosure sought, and that the balance of convenience favoured not ordering such disclosure at that stage of the proceedings. The court's final orders included the requirement for the plaintiffs to provide specific details about the Group Members and their estimated losses before the November hearing, while refraining from ordering broader disclosure of funding and beneficiary information.

Orders

Orders of the court

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Background

Background to the litigation

Mr Visic, supported by the CFS, applies by interlocutory application for orders ancillary to the authorisation and security for costs issues, namely disclosure of documents and/or information relating to the funding and potential beneficiaries of the action. These reasons for judgment address that application. All parties agreed that I should decide this application in advance of the November hearing.Background facts On 10 January 2005 at about 3.00 pm, a fire broke out on the eastern side of Lady Franklin Drive, Lower Eyre Peninsula, which is approximately 45 kilometres northwest of Port Lincoln.[1][1] Statement of Claim [7], first defendant’s Defence [7], second defendant’s Defence [7]. Some time prior to 3.00 pm, Mr Visic drove and parked his land cruiser in the general vicinity in which the bushfire broke out.[2] [2] Statement of Claim [6], first defendant’s Defence [6], second defendant’s Defence [6]. The bushfire burnt an area of land during the afternoon and night of 10 January 2005.[3][3] Statement of Claim [13-16], first defendant’s Defence [16], second defendant’s Defence [13], [15], [16]. On the morning of 11 January 2005, a fire (it being in dispute in the action whether it was the same fire or a different fire) broke out and burnt an extensive area of land.[4] [4] Statement of Claim [16-17], first defendant’s Defence [16], second defendant’s Defence [16]. The fire or fires (collectively “the bushfire”) allegedly caused extensive damage to numerous properties.[5][5] Statement of Claim [18] not admitted by the defendants. In February 2006, Duncan Basheer Hannon wrote to Mr Visic stating that they were acting for a number of persons who suffered property damage on 10 and 11 January 2005 as a result of the bushfire which was allegedly caused by Mr Visic’s motor vehicle. They said that they would formulate and provide details of the various claims in due course. In March 2006, they wrote to Mr Visic’s then solicitors enclosing a schedule of claimants for whom they were acting and foreshadowed sending a schedule with approximate estimates of damage suffered by each claimant. In February 2008, Duncan Basheer Hannon wrote to the solicitor for the CFS enclosing a draft schedule listing the names of claimants and details of losses suffered (ranging from itemised breakdowns of loss to a single global figure for loss to a qualitative description of loss without any amount). In August 2010, Gilchrist Connell wrote identical letters to the solicitors for Mr Visic and CFS. They said that they were acting for an insurer (QBE Insurance) which had paid out $7.5 million to insured persons who had suffered losses as a result of the 2005 bushfire. They enclosed a schedule listing the name of each insured and the amount paid by the insurer. They also said that they were authorised to communicate on behalf of (but implicitly were not generally acting for) four other insurers as well as various uninsured persons (implicitly represented by Duncan Basheer Hannon) who had suffered loss as a consequence of those bushfires. They enclosed a schedule setting out the names of the insured of one of those other insurers (Elders Insurance) and the amount paid to each by Elders totalling $5.3 million. They foreshadowed sending similar details in respect of the other three insurers who had paid out collectively $9.9 million to their respective insured persons. They foreshadowed providing similar details for uninsured persons who had suffered losses totalling $33 million according to Duncan Basheer Hannon. The letter thus referred to insured and uninsured losses totalling $55 million.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider that it will be relevant to consideration of the issues to be argued in November that the Group Members (as defined at the commencement of the action in December 2010) be identified together with an estimated global loss suffered by each Group Member. Accordingly, I propose to direct that the particulars of loss foreshadowed in the statement of claim, to that extent, be provided prior to the hearing in November.Conclusion I am not satisfied that it is necessary in the interests of justice to make the orders sought. I decline to order disclosure of the documents or information sought by the defendants. I will order that particulars of the Group Members and their estimated global losses be provided prior to the November hearing. I will hear the parties as to the precise orders to be made.

Ratio Decidendi

Legal Principle Established

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