Slater v Smith - [2021] SASC 135

Supreme Court of South Australia

(Civil: Application)

SLATER v SMITH

[2021] SASC 135

Judgment of the Honourable Justice Blue

24 November 2021

PRACTICE AND PROCEDURE - PARTIES - DUX LITIS - LEGAL ONUS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS

Matthew Slater, the applicant in the action and respondent in the cross action in the proceeding, seeks an order that the opposite parties be dux litis. He also seeks discovery orders in relation to documents produced by the second respondent Ecosol Pty Ltd to a shareholder in October 2018 pursuant to a court order, documents relating to negotiations for the sale of Ecosol’s business that was completed in November 2018 and documents relating to potential alternative disposal of that business.
Held:
1    The question who is to be dux litis, particularly when there is a claim and counter claim, involves the exercise of a discretion (at [33] to [34]).
2    Weighing all relevant circumstances, there is not good reason to make the opposite parties dux litis instead of Mr Slater (at [50]).
3    Documents in the custody of Janic Consulting Pty Ltd and its principal Mr Charlton, who were retained by Ecosol to negotiate the sale of the business on its behalf, are within the power of Ecosol for the purposes of discovery (at [83]).
4    An order should be made for specific discovery, verified on oath, of the documents produced pursuant to the court order in October 2018 including documents in the custody of Janic Consulting or Mr Charlton (at [85]).
5    Mr Slater is not entitled to the other orders sought in relation to the documents produced pursuant to the court order in October 2018 (at [87] to [89]).
6    An order should be made for specific discovery, verified on oath, of documents recording or comprising negotiations with the buyer for the sale of Ecosol’s business including documents in the custody of Janic Consulting or Mr Charlton (at [103]).
7    If Ecosol is required to pay Janic Consulting or Mr Charlton to produce documents in their custody for the purpose of compliance with these orders, the reasonable costs paid will be recoverable by Ecosol from Mr Slater if an order is made that Mr Slater pay Ecosol’s costs of action notwithstanding that those costs might otherwise be taxable on the Magistrates Court scale (at [84]).
8    Mr Slater has not established the basis for an order for specific discovery of records of proactive steps by Ecosol from August 2008 onwards to dispose of its business (at [109]).

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (NSW) ss 5 and 8, referred to.
Douglas-Hill v Parke Davis Pty Ltd (1990) 54 SASR 346; Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886; Taylor v Santos Ltd (1998) 71 SASR 434, considered.

SLATER v SMITH

[2021] SASC 135

BLUE J: Ecosol Pty Ltd (Ecosol), the second respondent, formerly carried on…

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: [2021] SASC 135
Decision Date: 24 November 2021

CaseChat Overview and Summary

In Slater v Smith, the applicant, Matthew Slater, sought several orders, including that the opposite parties be designated as dux litis and various discovery orders in relation to documents produced by Ecosol Pty Ltd. The case involved a complex web of claims and counterclaims, with Slater being both the applicant in the action and the respondent in the cross-action. The respondents, including Ecosol and its principal, argued against Slater’s requests for discovery and the designation of dux litis.

The court addressed several key legal issues. Firstly, it considered the appropriate party to be designated as dux litis, a decision that involved weighing various relevant circumstances. Secondly, the court examined the scope of discovery, particularly concerning documents in the custody of Janic Consulting Pty Ltd, which had been retained by Ecosol to negotiate the sale of its business. The court also assessed whether Slater was entitled to specific discovery of documents related to negotiations for the sale of Ecosol's business and potential alternative disposals.

In its reasoning, the court determined that designating the opposite parties as dux litis was not warranted given the circumstances of the case. Regarding discovery, the court found that documents in the custody of Janic Consulting, retained by Ecosol, were subject to the power of discovery. The court granted specific discovery orders for documents produced in October 2018 and those related to the sale negotiations, while denying the request for documents concerning proactive steps taken by Ecosol to dispose of its business from August 2008 onwards. The court further ruled that if Ecosol had to pay Janic Consulting or its principal to produce documents for compliance with the discovery orders, Ecosol could recover those reasonable costs from Slater if an order was made for Slater to pay Ecosol's costs of action.

The final orders included specific discovery orders verified on oath for certain documents, with provisions for cost recovery if necessary. Slater’s request for an order for discovery of records of proactive steps taken by Ecosol from August 2008 onwards was denied as Slater had not established a sufficient basis for such an order.

Orders

Orders of the court

Matthew Slater, the applicant in the action and respondent in the cross action in the proceeding, seeks an order that the opposite parties be dux litis. He also seeks discovery orders in relation to documents produced by the second respondent Ecosol Pty Ltd to a shareholder in October 2018 pursuant to a court order, documents relating to negotiations for the sale of Ecosol’s business that was completed in November 2018 and documents relating to potential alternative disposal of that business.

Held:

1 The question who is to be dux litis, particularly when there is a claim and counter claim, involves the exercise of a discretion (at [33] to [34]).

2 Weighing all relevant circumstances, there is not good reason to make the opposite parties dux litis instead of Mr Slater (at [50]).

3 Documents in the custody of Janic Consulting Pty Ltd and its principal Mr Charlton, who were retained by Ecosol to negotiate the sale of the business on its behalf, are within the power of Ecosol for the purposes of discovery (at [83]).

4 An order should be made for specific discovery, verified on oath, of the documents produced pursuant to the court order in October 2018 including documents in the custody of Janic Consulting or Mr Charlton (at [85]).

5 Mr Slater is not entitled to the other orders sought in relation to the documents produced pursuant to the court order in October 2018 (at [87] to [89]).

6 An order should be made for specific discovery, verified on oath, of documents recording or comprising negotiations with the buyer for the sale of Ecosol’s business including documents in the custody of Janic Consulting or Mr Charlton (at [103]).

7 If Ecosol is required to pay Janic Consulting or Mr Charlton to produce documents in their custody for the purpose of compliance with these orders, the reasonable costs paid will be recoverable by Ecosol from Mr Slater if an order is made that Mr Slater pay Ecosol’s costs of action notwithstanding that those costs might otherwise be taxable on the Magistrates Court scale (at [84]).

8 Mr Slater has not established the basis for an order for specific discovery of records of proactive steps by Ecosol from August 2008 onwards to dispose of its business (at [109]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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