Salim v Loh (No 2) - [2005] FCA 1417

FEDERAL COURT OF AUSTRALIA
Salim v Loh (No 2) [2005] FCA 1417
PRACTICE AND PROCEDURE - discovery – criteria for discovery – Federal Court Rules – applicable criteria since December 1999 – disputed categories of discoverable documents – directions on disputed categories
South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 cited
Federal Court Rules O 15 r 2
IWAN SALIM v SIMON THUANG CHYE LOH, ROBERT ASHMAN, STEPHEN WILLIAM MARSHALL, NEIL HENRY POLLARD and OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD (In liq)
WAD9 of 2004
CHARLES LIAW and HERLINA SALIM v SIMON THUANG CHYE LOH, ROBERT ASHMAN, STEPHEN WILLIAM MARSHALL, NEIL HENRY POLLARD and OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD (In liq)
WAD10 OF 2004
FRENCH J
5 OCTOBER 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD9 OF 2004

BETWEEN:

IWAN SALIM
APPLICANT

AND:

SIMON THUANG CHYE LOH
FIRST RESPONDENT

ROBERT ASHMAN
SECOND RESPONDENT

STEPHEN WILLIAM MARSHALL
THIRD RESPONDENT

NEIL HENRY POLLARD
FOURTH RESPONDENT

OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD
FIFTH RESPONDENT

BETWEEN:

  WAD 10 OF 2004

CHARLES LIAW and HERLINA SALIM
APPLICANTS

AND:

SIMON THUANG CHYE LOH
FIRST RESPONDENT

ROBERT ASHMAN
SECOND RESPONDENT

STEPHEN WILLIAM MARSHALL
THIRD RESPONDENT

NEIL HENRY POLLARD
FOURTH RESPONDENT

OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD
FIFTH RESPONDENT

JUDGE:   FRENCH J
DATE:   5 OCTOBER 2005
WHERE MADE:          PERTH
THE COURT ORDERS THAT:
In each of WAD9 and WAD10 of 2004:
1.The applicants do, on or before 26 October 2005, give discovery by list of the following documents in the third respondent’s discovery notice:
Category 7, limited to the period 1 June 1998 to 31 March 1999.

2.The applicants do, on or before 26 October 2005, give discovery by list of the following documents in the fourth respondent’s discovery notice:
(a)Category 4 limited to the period 1 June 1998 to 31 March 1999;
(b)Category 7;
(c)Category 11.

3.The third respondent do, on or before 26 October 2005, give discovery by list of the documents in the applicants’ discovery notice in categories 14 and 15 limited to documents in those categories which relate to the sale of ostriches or investment packages for the fifth respondent to persons in Hong Kong or Indonesia.
4.The fourth respondent do, on or before 26 October 2005, give discovery by list of the documents in the applicants’ discovery notice in category 14 limited to the period from 1 January 1998 to 31 March 1999.
5.Each party to bear its own costs of the directions hearings and associated argument and submissions so far as they relate to the disputed categories of discoverable documents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD9 OF 2004

BETWEEN:

IWAN SALIM
APPLICANT

AND:

SIMON THUANG CHYE LOH
FIRST RESPONDENT

ROBERT ASHMAN
SECOND RESPONDENT

STEPHEN WILLIAM MARSHALL
THIRD RESPONDENT

NEIL HENRY POLLARD
FOURTH RESPONDENT

OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD
FIFTH RESPONDENT

BETWEEN:

WAD…

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: [2005] FCA 1417
Decision Date: 5 OCTOBER 2005

CaseChat Overview and Summary

Salim v Loh (No 2) involved a dispute concerning the discovery of documents between the parties, specifically focusing on various categories identified in discovery notices. The parties were in disagreement about the scope and extent of certain categories of discoverable documents, which necessitated the court's intervention to provide direction. The case was heard and decided in the Federal Court of Australia.

The central legal issues before the court were the interpretation and application of specific categories of documents listed in the discovery notices. The court had to determine the precise scope of these categories to ensure that the discovery process was conducted fairly and efficiently. In particular, the court had to decide on the boundaries of category 11, which was contentious, and whether categories 4, 7, 14, and 15 should include certain documents related to transactions with a fifth respondent. The court also had to address the period for which certain categories of documents were relevant.

The court found that while some categories were clearly defined and undisputed, others required clarification. For category 11, the court concluded that no dispute existed and directed accordingly. The court then proceeded to issue specific directions regarding the discovery of documents for each category in question. The directions ensured that the documents sought were relevant and specific to the identified periods and transactions. The court ordered that each party bear its own costs relating to the argument over the disputed categories, reflecting the mixed outcomes of the dispute.

The final orders mandated the parties to provide lists of specific documents within certain timeframes, with particular attention to the relevant categories and periods. The court’s directions ensured clarity in the discovery process, reducing potential future disputes and ensuring that the proceedings could progress without unnecessary delays.

Orders

Orders of the court

In each of WAD9 and WAD10 of 2004:

1. The applicants do, on or before 26 October 2005, give discovery by list of the following documents in the third respondent’s discovery notice:

Category 7, limited to the period 1 June 1998 to 31 March 1999.

2. The applicants do, on or before 26 October 2005, give discovery by list of the following documents in the fourth respondent’s discovery notice:

(a) Category 4 limited to the period 1 June 1998 to 31 March 1999;

(b) Category 7;

3. The third respondent do, on or before 26 October 2005, give discovery by list of the documents in the applicants’ discovery notice in categories 14 and 15 limited to documents in those categories which relate to the sale of ostriches or investment packages for the fifth respondent to persons in Hong Kong or Indonesia.

4. The fourth respondent do, on or before 26 October 2005, give discovery by list of the documents in the applicants’ discovery notice in category 14 limited to the period from 1 January 1998 to 31 March 1999.

5. Each party to bear its own costs of the directions hearings and associated argument and submissions so far as they relate to the disputed categories of discoverable documents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J

As to category 11, counsel submits that any controversy on this category has been resolved. This is not expressly reflected in the fourth respondent’s contentions. However the fourth respondent says merely that category 11 should include documents relating to the fifth respondent and purchase of ostriches or investments from the fifth respondent. As it is not apparent from the written submissions that there is any dispute as to category 11, I will make a direction in terms of that category. Conclusion There will be orders in accordance with the preceding reasons. Having regard to the mixed outcomes I will order that each party bear its own costs of the argument in relation to the disputed categories of discovery.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD9 OF 2004

BETWEEN:	IWAN SALIM APPLICANT
AND:	SIMON THUANG CHYE LOH FIRST RESPONDENT ROBERT ASHMAN SECOND RESPONDENT STEPHEN WILLIAM MARSHALL THIRD RESPONDENT NEIL HENRY POLLARD FOURTH RESPONDENT OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD FIFTH RESPONDENT
BETWEEN:	WAD 10 OF 2004 CHARLES LIAW and HERLINA SALIM APPLICANTS
AND:	SIMON THUANG CHYE LOH FIRST RESPONDENT ROBERT ASHMAN SECOND RESPONDENT STEPHEN WILLIAM MARSHALL THIRD RESPONDENT NEIL HENRY POLLARD FOURTH RESPONDENT OSTRICH MEAT & MARKETING COMPANY (AUSTRALIA) LTD FIFTH RESPONDENT