Roads Corporation v Love - [2008] VSC 309

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6693 of 2004

ROADS CORPORATION	Applicant
v
THOMAS JAMES LOVE	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12, 13 AND 14 AUGUST 2008
DATE OF RULING:	19 AUGUST 2008
CASE MAY BE CITED AS:	ROADS CORPORATION v LOVE
MEDIUM NEUTRAL CITATION:	[2008] VSC 309

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Application by Defendant to file discovery pursuant to Rules 28.07 & 28.08 of the Supreme Court Rules – proliferation of discovery - discretion as to utility of discovery sought – inferences not able to be drawn – alternatively documents sought of no apparent utility – application refused save with respect to certain computer files.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Delany SC with Mr P Chiappi	Garland Hawthorn Brahe
For the Respondent	Mr A G Southall QC with Mr D R J O’Brien and Mr A J Fraatz (12 August 2008 only) Mr J F Doherty (13 & 14 August 2008 only)	McClusky’s Lawyers

HIS HONOUR:

In this matter the respondent, Mr Love, seeks orders for further discovery by the acquiring authority (“VicRoads”). The application is brought on notice but without summons (by consent of the parties) as a component of applications for directions in the Valuation Compensation and Planning List.

He does so both under rule 29.07 seeking an order for further general discovery and in the alternative pursuant to rule 29.08 seeking discovery of particular categories of documents.

The history of this proceeding is complex and is substantially set out in my previous rulings.

It includes the making of previous orders for particular discovery and the present application is put forward on the basis of the principles set out in my ruling of 17 October 2005.[1] It is submitted that there is reason to believe the documents sought may lead to relevant lines of inquiry, or throw light on the facts in issue between the parties and that in the terms of rule 29.08 there are grounds for a belief documents or classes of documents relating to questions in the proceeding may be or may have been in the possession of VicRoads.
[1]As to such principles see also Guss v Law Institute of Victoria [2006] VSCA 88.

In assessing such grounds the Court may have regard to evidence, or the nature and circumstances of the case or any document filed in the proceeding.

The application for general discovery is made despite the initial discovery given in this matter and its subsequent amplification pursuant to order and voluntarily.

It is further made despite an order that discovery given in the Acquisition Validity Proceeding (“AVP”)[2] be treated as discovery in this proceeding.
[2]Proceeding number 4504 of 2003.

In essence, it is submitted that the inference should be drawn that the authority’s discovery has been given without regard to relevant documentation:

(a) because of the limitations of the initial discovery provided;
(b)because such discovery was substantially given prior to the swearing of Mr Love’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] VSC 309
Decision Date: 19 August 2008

CaseChat Overview and Summary

The Roads Corporation initiated legal proceedings against Love, asserting that Love had caused damage to a road and was subsequently liable for the resulting costs. The defendant, Love, applied for permission to conduct further discovery, seeking additional documents to aid in the defence of the claim. The court was required to determine whether Love's application for discovery was appropriate under the relevant rules, particularly whether the sought documents were necessary for the fair disposal of the case and if they held some utility.

The court considered the nature of the application and the discretion granted to it under the Supreme Court Rules. It was noted that the application for discovery had proliferated, with the defendant seeking a broad range of documents that were not directly relevant to the case. The court assessed the utility of the documents requested, finding that many of them did not appear to have any relevance or utility to the issues at hand. The court also considered whether Love's application was an attempt to use discovery as a means of delay or to uncover information that was not pertinent to the case.

Upon evaluating the application, the court decided that most of the documents sought by Love were not necessary for the fair disposal of the case and did not hold any apparent utility. Therefore, the application was refused in its entirety, except for certain computer files that the court found to be relevant. The court emphasised the importance of ensuring that discovery is not used as a tool for unnecessary delay or to uncover irrelevant information.

The court ordered that Love's application to file discovery be refused, except with respect to certain computer files which were deemed relevant. The defendant was given specific instructions on the scope of the permitted discovery, ensuring that it was limited to what was necessary for the fair disposal of the case.

Orders