Raynor v Woodall
[2021] WADC 46
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: RAYNOR -v- WOODALL [2021] WADC 46
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 12 MAY 2021
DELIVERED : 27 MAY 2021
FILE NO/S: CIV 3185 of 2015
BETWEEN: KAREN RAYNOR
First Plaintiff
BRIAN RAYNOR
Second Plaintiff
AND
MICHAEL WOODALL
Defendant
Catchwords:
Practice and procedure - Application for further and better discovery - Turns on its own facts
Legislation:
District Court Rules 2005 (WA), r 46
Supreme Court Rules 1971 (WA), O 26 r 2 and r 6
Result:
Discovery of some matters ordered, the application in respect of two nominated companies adjourned sine die and the balance dismissed
Representation:
Counsel:
| First Plaintiff | : | Mr J R Johnson |
| Second Plaintiff | : | Mr J R Johnson |
| Defendant | : | Mr M Williams |
Solicitors:
| First Plaintiff | : | Julian Johnson Lawyers |
| Second Plaintiff | : | Julian Johnson Lawyers |
| Defendant | : | Minter Ellison |
Case(s) referred to in decision(s):
Pollard v Endale Pty Ltd [No 2] [2009] WADC 97
DEPUTY REGISTRAR HEWITT:
By writ of summons filed on 3 September 2015, the first and second plaintiffs sought damages against the defendant who is a specialist psychiatrist in relation to the advice, care and treatment which he provided to the first plaintiff whilst his patient which it is alleged caused personal injury, loss and damage and loss and damage to the second plaintiff, her husband.
The application with which I am required to deal is that brought by the defendant seeking further and better discovery of various identified classes of document set out in the body of the summons. Those documents are as follows with regard to the first plaintiff:
1.Within 21 days of the date of this order, the first plaintiff do make and file an affidavit stating whether the following classes of documents are or have at any time been in her possession, custody or power and if not then in her possession, custody or power when she parted with them and what has become of them and that she do within the same period serve a copy thereof on the defendant:
(a)all emails sent by the first plaintiff to Jane Fitch or anyone at Jane Fitch's practice;
(b)all documents/files attached to every email that the first plaintiff sent to Jane Fitch or anyone at Jane Fitch's practice;
(c)all diaries, notes or other records made by the first plaintiff regarding her consultations, discussions and interactions with the defendant;
(d)all diaries, notes or other records made by the first plaintiff about:
(i)her psychiatric symptoms;
(ii)any stressors in her life (including but not limited to marital problems, conflict with family members or conflict with co-workers);
(iii)her enjoyment of life;
(iv)her decision to stop working;
(v)her decision to relocate her primary residence to Myelup;
(vi)any medical or psychological treatment she was receiving at any time from January 2008 to date;
(vii)any medication she was taking any time from January 2008 to date;
(e)all emails the first plaintiff has sent to anyone, including but not limited to the second plaintiff, family members, friends, co-workers and health practitioners, from January 2008 to date regarding:
(i)her psychiatric symptoms;
(ii)any stressors in her life (including but not limited to marital problems, conflict with family members or conflict with co-workers);
(iii)her enjoyment of life;
(iv)her decision to stop working;
(v)her decision to relocate her primary residence to Myelup;
(vi)any medical or psychological treatment she was receiving at any time from January 2008 to date;
(vii)any medication she was taking any time from January 2008 to date;
(f)all saved but unsent emails that the first plaintiff has written with the intention of sending to someone, including but not limited to the second plaintiff, family members, friends, co-workers and health practitioners, from January 2008 to date regarding:
(i)her psychiatric symptoms;
(ii)any stressors in her life (including but not limited to marital problems, conflict with family members or conflict with co-workers);
(iii)her enjoyment of life;
(iv)her decision to stop working;
(v)her decision to relocate her primary residence to Myelup;
(vi)any medical or psychological treatment she was receiving at any time from January 2008 to date;
(vii)any medication she was taking any time from January 2008 to date;
(g)all photographs taken of the first plaintiff between the period January 2008 to date;
(h)the first plaintiff's passport covering the period 1 January 2008 to 31 December 2014;
(i)e-tickets or any other record of any commercial aircraft flights that the first plaintiff took during the period 1 January 2008 to 31 December 2014;
(j)the first plaintiff's tax returns and notices of assessment for the financial years ending 30 June 2017, 30 June 2018, 30 June 2019 and 30 June 2020;
(k)all documents supplied to the first plaintiff's tax agent(s) in connection with the preparation of the first plaintiff's tax returns for the financial years ending 30 June 2006 to date;
(l)the tax returns and financial statements of Advanced Project Solutions Pty Ltd (ACN 008 797 082) for the financial years ending 30 June 2006 to date;
(m)all documents upon which the tax returns and financial statements of Advanced Project Solutions Pty Ltd were prepared to the extent that those documents evince:
(i)the salaries paid to every employee of the company;
(ii)the positions held by every employee of the company during the financial years ending 30 June 2008 to 30 June 2014;
(n)the tax returns and financial statements of Greenlight Nominees Pty Ltd (ACN 142 745 355) for the financial years ending 30 June 2010 to date;
(o)all documents upon which the tax returns and financial statements of Greenlight Nominees Pty Ltd were prepared to the extent that those documents evince:
(i)the salaries paid to every employee of the company;
(ii)the positions held by every employee of the company during the financial years ending 30 June 2010 to date;
(p)the tax returns and financial statements of Mission Nominees Pty Ltd (ACN 142 745 319) for the financial years ending 30 June 2010 to date;
(q)all documents upon which the tax returns and financial statements of Mission Nominees Pty Ltd were prepared to the extent that those documents evince:
(i)the salaries paid to every employee of the company;
(ii)the positions held by every employee of the company during the financial year ending 30 June 2010 to date.
Insofar as the application concerns the second plaintiff the orders sought are:
2.Within 21 days of the date of this order, the second plaintiff do make and file an affidavit stating whether the following classes of documents are or have at any time been in his possession, custody or power and if not then in his possession, custody or power when he parted with them and what has become of them and that he do within the same period serve a copy thereof on the defendant:
(a)all emails sent by the second plaintiff to Jane Fitch or anyone at Jane Fitch's practice;
(b)all documents/files attached to every email that the second plaintiff has sent to Jane Fitch or anyone at Jane Fitch's practice;
(c)all diaries, notes or other records made by the first plaintiff regarding her consultations, discussions and interactions with the defendant;
(d)all diaries, notes or other records made by the second plaintiff about:
(i)the first plaintiff's psychiatric symptoms;
(ii)any stressors in the first plaintiff's life (including but not limited to marital problems, conflict with family members or conflict with co-workers);
(iii)the first plaintiff's enjoyment of life;
(iv)the first plaintiff's decision to stop working;
(v)the first plaintiff's decision to relocate her primary residence to Myelup;
(vi)any medical or psychological treatment the first plaintiff was receiving at any time from January 2008 to date;
(vii)any medication the first plaintiff was taking any time from January 2008 to date;
(e)all emails the second plaintiff has sent to anyone, including but not limited to the first plaintiff, family members, friends, co-workers and health practitioners, from January 2008 to date regarding:
(i)the first plaintiff's psychiatric symptoms;
(ii)any stressors in the first plaintiff's life (including but not limited to marital problems, conflict with family members or conflict with co-workers);
(iii)the first plaintiff's enjoyment of life;
(iv)the first plaintiff's decision to stop working;
(v)the first plaintiff's decision to relocate her primary residence to Myelup;
(vi)any medical or psychological treatment the first plaintiff was receiving at any time from January 2008 to date;
(vii)any medication the first plaintiff was taking any time from January 2008 to date;
(f)all saved but unsent emails that the second plaintiff has written with the intention of sending to someone, including but not limited to the first plaintiff, family members, friends, co-workers and health practitioners, from January 2008 to date regarding:
(i)the first plaintiff's psychiatric symptoms;
(ii)any stressors in the first plaintiff's life (including but not limited to marital problems, conflict with family members or conflict with co-workers);
(iii)the first plaintiff's enjoyment of life;
(iv)the first plaintiff's decision to stop working;
(v)the first plaintiff's decision to relocate her primary residence to Myelup;
(vi)any medical or psychological treatment the first plaintiff was receiving at any time from January 2008 to date;
(vii)any medication the first plaintiff was taking any time from January 2008 to date;
(g)all photographs taken of the first plaintiff between the period January 2008 to date;
(h)e-tickets or any other record of any commercial aircraft flights that the first plaintiff took during the period 1 January 2008 to 31 December 2014;
(i)the second plaintiff's tax returns and notices of assessment for the financial years ending 30 June 2018, 30 June 2019 and 30 June 2020;
(j)all documents supplied to the second plaintiff's tax agent(s) in connection with the preparation of the second plaintiff's tax returns for the financial years ending 30 June 2006 to date;
(k)the tax returns and financial statements of Advanced Project Solutions Pty Ltd (ACN 008 797 082) for the financial years ending 30 June 2006 to date;
(l)all documents upon which the tax returns and financial statements of Advanced Project Solutions Pty Ltd were prepared to the extent that those documents evince:
(i)the salaries paid to every employee of the company;
(ii)the positions held by every employee of the company during the financial years ending 30 June 2008 to 30 June 2014;
(m)the tax returns and financial statements of Greenlight Nominees Pty Ltd (ACN 142 745 355) for the financial years ending 30 June 2010 to date;
(n)all documents upon which the tax returns and financial statements of Greenlight Nominees Pty Ltd were prepared to the extent that those documents evince:
(i)the salaries paid to every employee of the company;
(ii)the positions held by every employee of the company during the financial years ending 30 June 2010 to date;
(o)the tax returns and financial statements of Mission Nominees Pty Ltd (ACN 142 745 319) for the financial years ending 30 June 2010 to date;
(p)all documents upon which the tax returns and financial statements of Mission Nominees Pty Ltd were prepared to the extent that those documents evince:
(i)the salaries paid to every employee of the company;
(ii)the positions held by every employee of the company during the financial years ending 30 June 2010 to date.
The obligation to give discovery in a District Court action is to be found in r 46 of the District Court Rules 2005 (WA) which is couched in the following terms:
(1)The RSC Order 26 applies to an action commenced by writ, subject to this rule.
(2)Subject to any order made by the Court, each party to the action must give each other party discovery of all documents that are or have been in the party’s possession, custody or power relating to any matter in question in the action.
(2a)If a plaintiff in a personal injuries action is required under subrule (2) to give discovery of income tax returns, the plaintiff must discover the returns lodged by the plaintiff for, at least -
(a)the financial year during which the incident pleaded as the cause of the personal injuries occurred; and
(b)each of the 2 preceding financial years.
There is additionally an obligation for continuing discovery which is to be found in O 26 r 2 of the Supreme Court Rules 1971 (WA). Additionally, O 26 r 6 of the Supreme Court Rules empowers the court to make an order for discovery of particular documents and to require a party to make an affidavit stating whether any documents specified or described in the application or any class of document specified or described is, or has had at any time been, in his possession, custody or power, and if not then in his possession or custody or power when he parted with it and what has become of it. The latter rule is that which is relied upon by the defendant in bringing the present application. In Pollard v Endale Pty Ltd [No 2] [2009] WADC 97, his Honour Judge Sleight stated [10]:
(1)The District Court has an inherent power arising from Rule 46 of the District Court Rules to order further discovery (this inherent jurisdiction is akin to that which exists in the Supreme Court to supervise the conduct of its litigation - see Chandler & Ors v Water Corporation [2004] WASC 95 per Hasluck J at [16]).
(2)A list of documents verified by affidavit served pursuant to the discovery process is generally treated as conclusive as to its contents unless it appears that a party may possess a document or class of documents which relate to matters in question which have not been discovered (Chandler supra [10 - 11]).
(3)In an application to the Court's inherent jurisdiction the applicant, when seeking to displace the conclusive nature of the affidavit of discovery, is confined to information emanating from the opponent's affidavit and list, the documents the opponent discloses and the opponent's admissions, and may not rely upon a contentious affidavit. Limited to those materials, the Court may make an order if it has reasonable grounds for being fairly certain that there are other documents which ought to have been disclosed, or if it is practically certain that the party making the affidavit has misconceived his or her case and that if he or she had acted upon a proper view of the law he or she would have disclosed further documents.
(4)The power under O 26 r 6 of the Rules of the Supreme Court is thought to enlarge that inherent power: Chandler supra at [16] (although I have some doubt whether the distinction with an application under the inherent jurisdiction has any real practical consequences as most applications will be based under both jurisdictional grounds and it is a matter of looking at the totality of the material to decide whether an order should be made). The application for particular discovery under O 26 r 6 must be supported by an affidavit. The affidavit is to set out a belief that relevant documents were omitted from the affidavit of discovery. The facts in support of this belief must be stated in the affidavit (Chandler supra at [12]).
(5)Order 37 r 6(2)(a) of the Rules of the Supreme Court provides that an affidavit used for the purposes of interlocutory proceedings may contain statements of information or belief. Preferably statements of information or belief in affidavits should follow the form 'I have been informed by X and verily believe' (see Lewkowski v Burgalin Pty Ltd (unreported; WASCA; Library No 7675; 26 May 1989). This form is preferable not because the Court requires ritualised behaviour, but because it clearly indicates the source of the information, states the information and states the deponent believes that what X has said is true (see Blythe v State of Western Australia [2008] WASCA 10).
(6)An affidavit filed in support of an application for specific discovery must offer substantial assistance to establish whether the particular documents to which the application refers exist and relate to a matter in question (see Chandler supra [13]; John Allan Ltd v Keegan [1968] WAR 125 at 128).
(7)A party is entitled only to discovery of documents that relate to issues in the proceedings. The pleadings are the principal source of defining the matters in issue in the proceedings (Australian Railroad Group Pty Ltd & Ors v Rowan & Anor [2004] WASC 165 at [22]).
(8)The pleadings, the list of discoverable documents and the discovered documents themselves are not the only basis for establishing the insufficiency of the list of discoverable documents. The affidavit in support of an application under O 26 r 6 can present material to demonstrate the existence of documents in the possession of the other party relating to matters in issue which have not been discovered Mulley & Marney v Maniford (1959) 103 CLR 341 per Menzies J at 343.
(9)The Court must be able to infer from the nature of the documents sought to be discovered that they are relevant; it will not speculate as to their relevance: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 per Master Newnes at [3].
(10)In determining whether a document relates to a matter in question, and therefore, ought to have been discovered the test is set out in the decision of Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company [1882] 11 QBD 55 as follows:
'It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words "either directly or indirectly" because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences.'
(11)It is important to bear in mind that there is not a strict entitlement to an order for discovery, including an order for further discovery. Moreover, in recent times principles of case management emphasise a need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery (Youlden supra at [6]). The Court should only make such order of specific discovery as is necessary in the interests of a fair trial: Leighton Contractors Pty Ltd v Public Transport of Western Australia [2007] WASC 65, at [20]; Australian Railroad Group Pty Ltd v Rowan and Anor [2004] WASC 165 per Le Miere J at [36].
(12)Factors to be considered in making or framing an order for discovery depend upon the circumstances of each case but will often include the likely time, cost and inconvenience of making discovery of any documents or classes of documents by way of comparison with the amount of documents involved in the action, the relative importance or likely relevance of them in relation to any issue or issues in the action and the probable effect on the outcome of the action of a party obtaining access to the documents or class of documents. Generally, the court will try to avoid making discovery orders that would place an oppressive burden on a party such that it must devote disproportionate resources to the search for relevant documents: Leighton Contractors supra per Le Miere J at [18].
(13)The extent of the obligation to make discovery is much greater in contemporary times. That is because of the proliferation of records and because a document now includes not only writing on paper but other documents including tapes, discs and computer hard drives storing electronic data: Oberdan v Commonwealth Bank (1999) 75 SASR 152. When the factual situation is said to have arisen over a number of years the obligation is even greater. However, the burden to make discovery in those circumstances is not oppressive by reason that a party is a large corporation and the issues are complex and because the factual situation is said to have arisen over a number of years: Leighton Contractors supra [19].
The touchstone of an application for further and better discovery is whether materials presented to the court set out reasonable grounds for being fairly certain there are other documents which ought to have been disclosed, or if it is practically certain that the party making the affidavit has misconceived his or her case and that if he or she would have acted upon a proper view of the law he or she would have disclosed further documents.
It is immediately noticeable that the scope of the documents which are sought by way of further and better discovery is breathtakingly broad. As framed they appear to relate in part at least to the plaintiff's entire life. It is immediately apparent that the great bulk of the materials which have been sought are likely to be irrelevant. It would be possible to narrow the ambit of the summons to periods from and after which she was receiving treatment from the defendant and that is a possibility which I have considered. I have however, reached the view that is not the task of the court to try to reframe the order sought within the chamber summons to salvage an application so poorly framed as this. If the defendant chooses, as in a number of instances in this matter, to seek a ridiculously broad range of materials I do not think it to be my task to attempt to salvage something for the benefit of the defendant.
I shall therefore proceed to deal with the documents which are sought sequentially. Commencing with par 1(a) which seeks all emails sent by the first plaintiff to the doctor who treated her subsequent to the defendant or anybody in that person's practice. Emails are a means by which all kinds of information are communicated and things such as appointment times, account payments and all sorts of mundane everyday matters of absolutely no relevance to this case would be captured were I to make the order which is sought. I do not intend to countenance the approach that it is appropriate to drag the whole pool to see if some relevant information might be produced. There may well be some information which might be relevant in the pool but it is oppressive to require the plaintiff to disclose the whole of her entire email correspondence with the treating doctor and that doctor's staff in the hope that something might turn up. The evidence before me does suggest that there may be a document of some relevance which is a spreadsheet of some kind prepared by the plaintiff but my approach is to look at the order which is sought not to try to reframe the order which is sought to make it acceptable. Accordingly, I am not inclined to order further and better discovery in the terms sought by par 1(a). For the same reason I am not prepared to make an order in terms of par 1(b).
As to par 1(c), again the breadth of the documents required is extremely wide relating to any record of any kind which the first plaintiff may have made regarding consultations, discussions and interactions with the defendant. There is little if anything in the supporting affidavit which would suggest that would be a productive exercise, and in any event the defendant is presumably well aware of what interactions, consultations and discussions took place between him and the first plaintiff.
Paragraphs 1(d)(i) - 1(d)(iii) are unlimited as to time or anything else and even though it might be possible for me to reframe the order sought by imposing a temporal constraint upon what is sought, I am not inclined to do so. It is for the applicant to frame an order which is reasonable in the circumstances. As to par 1(d)(iv), her decision to stop working, which presumably relates to a period relevant to the litigation, the ambit of the order is again very broad. All diaries, notes or other records made by the first plaintiff embraces a wide prospective range of documentation much if not all of which will be completely irrelevant to the litigation. Again, the decision to relocate to Myelup will embrace all kinds of information concerning the purchase of that residence, her translocation to that residence and a myriad of other matters, again quite irrelevant to the case.
As to par 1(d)(vi), the diaries, notes or other records made by the plaintiff about any medical or psychological treatment she was receiving at any time from January 2008 to date is oppressively broad and would necessarily, if answered, relate to a great number of matters which have nothing to do with the litigation.
As to par 1(d)(vii) I consider that to be a reasonable request for further and better discovery. There is an allegation in the defence that the plaintiff was taking medication whilst being treated by the defendant which was not prescribed by the defendant and I think it reasonable that the plaintiff should discover documents which bear on that issue.
The next class of documents of which further and better discovery is sought is all emails the first defendant has sent to anyone, including but not limited to the second plaintiff, family members, friends, co‑workers and health practitioners from January 2008 to date regarding the same matters as are identified in par 1(e) save that in this instance the time is limited from January 2008 to date.
The onus on an applicant is to demonstrate that it is likely that the documents exist and they contain information which is relevant to the proceedings. I hardly think that requiring the first plaintiff to reproduce any emails she has ever sent to anyone from January 2008 containing any comment about the matters which are identified in par 1(e) is an appropriate request for further and better discovery. Paragraph 1(f) essentially is a reproduction of par 1(e) save that in this case it concerns saved but unsent emails sent to anybody commenting on these matters. Again, the class is broad and relevance obscure and it is not in my view a proper request for further and better discovery.
Paragraphs 1(g), 1(h) and 1(i) appear to relate to some vacations which the plaintiff took between January 2008 and to date. Paragraph 1(g) seeks discovery of all photographs taken of the first plaintiff between the period 2008 to date. Exactly what is intended to be revealed by the photographs which is relevant to this action escapes me, likewise the production of the first plaintiff's passport from 1 January 2008 to 31 December 2014 strikes me as hardly likely to contain anything that is relevant to these proceedings. Again, e-tickets or other records of commercial aircraft flights from 2008 to 2014 again strike me as an exercise in fishing rather seeking the further and better discovery of documents which have been demonstrated probably exist and probably contain relevant information.
Paragraph 1(j) seeks further and better discovery of the plaintiff's tax returns and notices of assessment from 2017 to and including 2020. The first of these documents has, as I understand it, been produced to the defendant but since the plaintiff's action seeks damages for loss of earnings it is appropriate for the first plaintiff to swear an affidavit dealing with the class of documents.
The next class of documents identified in the summons are all documents supplied to the first plaintiff's tax agents in connection with her tax returns from 30 June 2006 to date. Although at first blush this might seem a range of documents which is too great, nonetheless I think it is a class of documents of which discovery should be given. The plaintiff is claiming a very substantial amount of damages, in excess of $2 million, and this documentation is likely to shed some light on what might be a proper estimate of her earnings for the period in question and the rates which have been adopted by the plaintiff in calculating her loss.
The next classes of documents are tax returns for a company Advanced Project Solutions Pty Ltd and for documents upon which the tax returns and financial statements of that company were prepared and likewise for a company called Greenlight Nominees Pty Ltd. The documentation sought from Advanced Project Solutions Pty Ltd is from 2006 to date, that from Greenlight Nominees Pty Ltd from 2010 to date. Paragraphs 1(p) and 1(q) put similar enquiries in relation to a company called Mission Nominees Pty Ltd. The first and second plaintiffs were the shareholders and directors of these companies and it is upon that basis that the defendant considers that these documents should be regarded in their possession, power or control and thus, liable to be discovered. Prima facie such documents are in the possession of the companies to which they relate. There may be certain documents or at least copies of documents which are in the possession of the first defendant and which might be susceptible to an order for further and better discovery. I see no reason to suppose that the entire range of the documents sought are in the possession, power and control of the plaintiffs but in my view the correct procedure is to issue a subpoena to the relevant companies and it is not appropriate or fair for the first plaintiff to have to swear an affidavit of discovery in regard to them. I do recognise however that both the first plaintiff and the second plaintiff are in the position of a level of control over the relevant companies. I therefore think that the appropriate process is for the defendant to subpoena the records from the companies and adjourn the application insofar as it seeks these records giving the defendant the opportunity to resurrect the application in the event that there are some problems or obstacles in the subpoena process.
In summary therefore, insofar as the application deals with the first plaintiff it is not enough for there to be a possibility that the provision of these further documents might be of use to the defendant, it has to be demonstrated to a reasonable level of likelihood and to sweep the pool in the hope that something might turn up does not establish that something with a reasonable level of likelihood.
In regard to the application relating to the second plaintiff the documents sought are of the same general kind as those sought from the first plaintiff and I intend to deal with them in the same way.
The application against each plaintiff shall be dismissed save for that portion relating to the first plaintiff's tax returns and documentation provided to her tax agents which shall be required to be discovered and to the two companies which shall be adjourned sine die.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Court Officer
27 MAY 2021
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