Speedy Gantry Hire Pty Ltd v Preston Erection Pty Ltd

[1997] FCA 1594

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	QG 182 OF 1995

BETWEEN:

SPEEDY GANTRY HIRE PTY LIMITED
ACN 010 593 414
Applicant

AND:

PRESTON ERECTION PTY LIMITED
ACN 003 991 662
First Respondent/First Cross Claimant

JOHN CLEMENT PRESTON
Second Respondent/Second Cross Claimant

JUDGE:	EMMETT J
DATE:	4 DECEMBER 1997
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   I have before me an application brought by the respondents seeking an order that the applicant’s solicitor read each of the documents located in boxes on the mezzanine level at the applicant's premises at Wacol in Queensland and file and serve an affidavit listing all documents read by him relevant to these proceedings and to produce for inspection by the respondent in Sydney all such relevant documents, including documents relating to a number of specified persons and entities.

The persons and entities include the applicant and other companies which appear to have some business association with the applicant, although the precise relationship is by no means clear.  There are several bases upon which the application has been put.  First, there were two supplementary lists of documents filed on behalf of the applicant, notwithstanding that there was an order for discovery made originally by Sheppard J.  It is said that the fact that two supplementary lists had to be filed is indicative of inadequacy of discovery by the applicant when the first attempt was made.

Second, it is said that no company returns or tax returns on behalf of the applicant have been discovered, being returns relating to the 1985, 1986 and 1987 years.  The precise relevance of those documents has not been indicated, although counsel for the respondents indicated that there were tactical reasons why he did not want to go into the precise detail of their possible relevance.  One can see that such documents could have some relevance on collateral issues.  However, they would not necessarily have direct relevance.  The absence of those documents from the list of documents that had been filed must have been apparent and, while counsel indicated that the significance of such documents has fairly recently become apparent, I have no evidence before me as to precisely when it was that the respondents concluded that those documents might now be relevant. 

Next, it is said that the model produced today and tendered by the applicant should have been discovered if it is now said to be relevant.  The only evidence presently before me is that that model was made sometime after 1986.  If that is correct, then its relevance would be doubtful.  Counsel for the respondents suggested that, had the model been produced earlier, the respondents would have had the opportunity to examine it.  However, there is no application now for leave to carry out any further examination.  If it could be shown that the model was made before the relevant date in February 1986, that might demonstrate a deficiency in discovery.

The next matter relied upon as being indicative of deficiency in discovery is that there was produced in the course of the hearing earlier in the week a bundle of documents which senior counsel for the applicant sought to put to Mr Preston.  The documents are for the most part dated 1990, although there are some earlier documents, the earliest of which seems to be in mid to late 1987.  Leading counsel for the respondents was unable to point to any relevance in the documents other than the fact that senior counsel for the applicant sought to cross-examine in relation to them.  It is quite possible, of course, that the documents were intended to be relied upon as going simply to the credit of the witness and senior counsel for the applicant indicated to me that that was the only advantage which he sought to obtain from the documents.  As it turns out, that question was not pursued and as I have said, Mr Ellicott is unable to point to any relevance in the documents themselves.  On that basis it appears they were not discoverable. 

Finally, it was said that in cross-examination the officer of the applicant who was responsible for discovery made concessions which throw some doubt on the accuracy of discovery in the light of the matters to which I have already referred.  Mr Helmar, who confirmed that he was the person responsible for attending to discovery on the part of the applicant, said that he searched throughout the records of the applicant in all the boxes of documents which existed at the applicant’s office at that time.

He said that, at that time, there were a number of boxes of documents on the mezzanine level of the premises from which the applicant conducts its business.  He said that he did not read every document in every one of those boxes in order to determine whether there were documents answering the description sought by the respondents.  He was asked whether it was possible that in those boxes there are some documents answering the descriptions which he was asked to look for.  He said he believed not because the boxes related to different companies. 

Mr Helmar said that the boxes were bundled up and stored long before the time in question and therefore he believed they did not contain the relevant documents.  He said he looked at the headings, looking specifically at material for Speedy Gantry.  He said he would reject a particular box if it had all financial records of a company of a different name and a date prior to that in which he was interested.

He was asked how, if he did not look at every document in the box, he would know what was in it.  He said that he looked at files, headings, labels, some of which were labelled up and bandaged.  He said that although the boxes were on Speedy Gantry's premises they contained labels including other names, being names of companies which are associated in some way with the applicant.  Mr Helmar, however, said that he ignored boxes which had such names on them because he felt they would contain irrelevant documents.

He was asked whether it was possible that there were some documents answering the description sought in the boxes and which had been incorrectly filed.  His response was, "Okay, yes, if they had been mixed up as I said, difficult because they were labelled, bandaged up and related to different issues, but somebody could have gone there, undo the labels, open the boxes, put it there and then re-labelled it and sealed them up again, but it's a long shot."  He agreed that it was possible.

I do not regard those answers as indicating that there was any inadequacy in the examination of the material that was conducted by Mr Helmar.  There is no suggestion that documents which were produced and referred to in the subsequent lists of documents were found in the wrong boxes.  I do not consider that on that evidence I should draw an inference that there is any probability, notwithstanding that there might be a possibility, that there are contained in the boxes which were not examined by Mr Helmar for the reasons he gave, documents which would be relevant for discovery.

In the circumstances, I do not consider that it is appropriate at this stage of the proceedings to make the order sought in the notice of motion.  I reserve the costs of the motion for the time being.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:             4 December 1997

Counsel for the Applicant:	D. K. Catterns QC
Mrs D. A. Mullins
Solicitor for the Applicant:	Bennett & Philp
Counsel for the Respondent:	M.R.J. Ellicott B.P. Jones
Solicitor for the Respondent:	Hazan Solicitors
Dates of Hearing:	4 December 1997
Date of Judgment:	4 December 1997