Sea Food International Pty Ltd v Lam, Theng Pew

[1995] FCA 883

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY     )    No. QG 193 of 1994
GENERAL DIVISION                 )

BETWEEN   :    SEA FOOD INTERNATIONAL PTY LTD
  Applicant

AND:    THENG PEW LAM

First Respondent

AND:    HUXHAM PTY LTD

Second Respondent

CORAM:    Spender J
PLACE:    Brisbane
DATE:     25 October 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The notice motion is dismissed.

1. The applicant pay the respondents' costs of the motion, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY     )    No. QG 193 of 1994
GENERAL DIVISION                 )

BETWEEN   :    SEA FOOD INTERNATIONAL PTY LTD
  Applicant

AND:    THENG PEW LAM

First Respondent

AND:    HUXHAM PTY LTD

Second Respondent

CORAM:    Spender J
PLACE:    Brisbane
DATE:     25 October 1995

REASONS FOR JUDGMENT

This is a notice of motion where the applicant, Sea Food International Pty Ltd, seeks an order that Huxham Pty Ltd, the second respondent, file and serve a supplementary list of documents discovering financial records in its possession or power in relation to the carrying on of a sea food processing business conducted from premises situation at Thurecht Parade, Scarborough in the State of Queensland on and from 11 October 1994 to date.

The application for further discovery is opposed. 

Mr Martin of Counsel for the applicant says that the documents sought are relevant to the issues in the proceedings and the court should order their discovery.

The substance in the allegations by the applicant is that there was an agreement by the second respondent to lease
premises at Thurecht Parade, Scarborough, to the first applicant and that that agreement was dishonoured.

The applicant asserts that as a consequence it suffered loss and damage.  According to the particulars of its loss and damage, the applicant says:

"The Applicant was forced to leave its Tubb Street premises and move its operations to an unlicensed storage facility at Pine Street, Clontarf from which the Applicant's seafood processing business could not be conducted.  The Applicant could have conducted its business from Thurecht Parade.

As a result of not being able to conduct its seafood processing business, the Applicant has lost the profit it would otherwise have earned particulars of which are set out in the following table:-

TURNOVER	COST	GROSS MARGIN
Mullet Roe	1,800,000	1,052,000	748,000
Other exports	250,000	218,000	32,000
Spanner Crabs	2,400,000	1,992,000	408,000
Scallops	2,220,000	1,980,000	220,000
Institutional Distribution	1,000,000	700,000	300,000
Wholesale	1,090,000	872,000	218,000
Retail	2,500,000	1,750,000	750,000
Total	2,676,000
Expenses just less than	1,500,000
Annualised net profit	1,176,000
Present value of loss of profit over 5 year lease period term	4,401,601.27

"

The submission on behalf of the applicant is that the profit performance of the second respondent (who in fact, subsequent to the alleged broken agreement, conducted a business involving at least the export of sea food to Singapore from those premises) is relevant to the question of the applicant's loss or damage.

That claim, in my opinion, is inconsistent with the loss and damage as particularised.  That loss or damage clearly depends on a method of calculation or formulation which is quite separate from whatever may have been the business of the second respondent and whatever may have been the profits earned by the second respondent in that business.

The same can be said concerning the allegation that the second respondent procured the former manager of the applicant to work for the second respondent, resulting in loss and damage to the applicant.

It seems to me that there is an implicit alternative claim sought to be relied on, which is that somehow, and contrary to what is explicitly particularised, the applicant is entitled to say that the profits that the second respondent earned through the efforts of the poached manager is a measure of the loss and damage suffered by the applicant.

In my opinion what is sought is truly to be described as fishing.
         In the well known passage from Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN(NSW) 250 at 254, Owen J said:

"It is true, as counsel for the appellant has argued, that a defendant in a libel action who has pleaded justification is not to be allowed to go on a mere 'fishing expedition' into the plaintiff's records in the hope of finding there something which may supply him with the evidence necessary to support this plea.  But whether a particular expedition is a mere 'fishing expedition' depends upon the meaning of that phrase.  A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.  If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as mere 'fishing expedition'. "

The matter here, in my view, can properly be described as "fishing", because there is no material before me to suggest that there was in fact any profit made.  That is an implicit assumption in the argument; it highlights the fact that what is sought really is to find out whether there is anything in the profit record which might support the applicant's case. 

On both of the grounds relied on by the applicant, I decline to make any order for supplementary discovery of the documents specified in the notice of motion.
         The notice motion is dismissed.  I propose to order that the applicant pay the respondents' costs of that motion, to be taxed if not agreed. 

I certify that this and the  preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date: 25 October 1995

Counsel for the applicant:   Mr M. Martin
instructed by:              HCF Lawyers
Counsel for the respondents: Mr R.I.M. Lilley
instructed by:              Deacons Graham & James
Date of Hearing:            25 October 1995