Scott v Grodd

Case [2024] FedCFamC2G 334

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Scott v Grodd [2024] FedCFamC2G 334

File number(s): MLG 2305 of 2023
Judgment of: JUDGE CHAMPION
Date of judgment: 11 April 2024
Catchwords: PRACTICE AND PROCEDURE – Application for discovery – Declaration that discovery of particular classes of documents is in the interests of the administration of justice
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 176, 190

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 10.01, 14.02

Cases cited: Abrahams v Qantas Airways (No.2) [2007] 210 FLR 314; [2007] FMCA639 25
Division: Division 2 General Federal Law
Number of paragraphs: 33
Date of last submission/s: 11 April 2024
Date of hearing: 11 April 2024
Place: Melbourne
Counsel for the Applicant: Mr A Blair (direct brief)
Solicitor for the Respondents: Suburban Law

ORDERS

MLG 2305 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JUSTIN SCOTT

Applicant
AND:

WOLFGANG ULRICH WALTER GRODD

First Respondent

SLEEPING BEAUTIERS PTY LTD

Second Respondent

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

11 APRIL 2024

THE COURT ORDERS THAT:

1.Pursuant to s. 176(2) of the Federal Circuit and Family Court of Australia Act 2021 it is declared that it is appropriate in the administration of justice to allow discovery in the proceeding.

2.The parties make discovery of the following categories of documents on or before 7 May 2024:

(a)documents that record any work done to the 1965 Mercedes Benz SL 230 vehicle (MB Vehicle) by either or both Respondents including such part or parts said to have been installed on the MB Vehicle by the Respondents;

(b)documents that record the cost of goods and services provided by third parties to either or both Respondents for the purpose of performing work on the MB Vehicle; and

(c)copies of financial records that show payments to or received by either or both Respondents from the Applicant.

3.Each party file an affidavit of documents pursuant to r. 14.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) on or before 7 May 2024.

4.Each party make available for inspection by the other party the documents disclosed in the affidavit in accordance with Part 14 of the Rules.

5.Orders 3 and 4 of the Orders of this Court made 25 January 2024 are vacated.

6.The Respondent make the MB Vehicle available to the Applicant (or such third party as may be reasonably nominated by him) in Brisbane at such time and on such conditions that may be reasonably agreed between the parties on or before 15 June 2024.

7.The matter be referred to mediation before a Judicial Registrar of the Court on the first available date after 24 June 2024.

8.Costs in the proceeding.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order…

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Scott v Grodd [2024] FedCFamC2G 334
Case
[2024] FedCFamC2G 334
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CaseChat Overview and Summary

The matter of Scott v Grodd involved a dispute over approximately $200,000. The case was heard in the Federal Circuit and Family Court of Australia. The central issue before the court was whether certain classes of documents should be discovered and disclosed to facilitate the resolution of the dispute. The applicant sought the discovery of various classes of documents, including those recording work done, the costs of goods and services provided by third parties, and financial records related to the work performed. The respondents opposed the application for discovery on the basis that some of the requested documents were already in the possession of the applicant. The court considered the overarching objective of case management procedures to resolve disputes in a manner that is proportionate to the importance and complexity of the matters in dispute. The court determined that the documents in question were directly relevant to the dispute, unlikely to be excessively voluminous, and may help narrow the issues in dispute. The court also noted that it was appropriate for both parties to undertake reasonable searches for documents in the relevant classes, even if some documents might already be in their possession. The court did not press the application for the discovery of certain classes of documents (a) to (d) as they were not pursued. The court concluded that it was appropriate for the documents in classes (e), (f), and (g) to be discovered and disclosed in the interests of justice and ordered the parties to undertake reasonable searches for these documents. The court also noted that the issue of whether the applicant's claim was statute-barred could not be determined without trial and that discovery should not be postponed until after a preliminary issue had been determined.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

In a refinement of his application orally this morning, he did not press the categories of documents (a) to (d).CONSIDERATION The parties are in dispute as to approximately $200,000. That is a substantial sum, but at the same time, I am conscious of the overarching purpose of the case management procedures in this Court to achieve the resolution of the dispute at a cost that is proportionate to the importance and complexity of the matters in dispute: FCFCOA Act, s. 190(2)(e). The subject matter of the dispute is such that it appears inevitable to me that its just resolution will require evidence as to the scope and quality of restoration works performed on the MB Vehicle, and the amounts charged and paid for that work. Contemporaneous documents, if available, will be important to the just resolution of the dispute. For that reason, I am persuaded that, in the interests of justice, it is appropriate that documents in class (e) that record work done, class (f), which record the cost of goods and services provided by third parties to the Respondents, and class (g), the financial records as to the work done, ought to be discovered and disclosed in the interests of the administration of justice. Having regard to the matters articulated in the decision in Abrahams, they are directly relevant, are unlikely to be so voluminous that the cost of discovering them outweighs the benefit to the interests of justice, and their discovery may serve to narrow the issues in dispute. As to class (g), the Respondents opposed the application because they submitted that the Applicant already had relevant records of payments in his possession, and, therefore, any order for discovery may be in effect an arid order. I am of the view that, given the early stage of the proceeding, it is appropriate that there be discovery of the documents in possession of both parties, even though that may entail the discovery back to Mr Scott of documents he already has in his possession. Although the rules in this Court do not, in terms of my research, refer to the notion of “reasonable searches” for documents in the same terms as the Federal Court Rules refer to the concept of “reasonable searches”, I would expect in each party's affidavit as to the discovery of documents, that they undertake reasonable searches for documents in the relevant classes which might be in their possession. I say no more about documents in classes (a) to (d), as that application was not pressed. I do note, for completeness, that the Respondents submitted that the Applicant's claim for relief is almost certainly statute barred, but that the authorities were against them as to having the proceeding summarily disposed of before trial on this basis. Assuming this to be correct, without expressing any considered view, it appears to me that if the limitation issues can only be determined at trial, this is not a case in which the court may postpone discovery until after a preliminary issue has been determined. Timing of discovery