STIPINOVIC v Goodall - [2020] WASC 37

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   STIPINOVIC -v- GOODALL [2020] WASC 37
CORAM:   ALLANSON J
HEARD:   5 FEBRUARY 2020
DELIVERED          :   12 FEBRUARY 2020
FILE NO/S:   CIV 2837 of 2017
BETWEEN:   ANDRICA STIPINOVIC
Plaintiff
AND
BRIAN GOODALL
First Defendant
GOODALL FINANCIAL SERVICES PTY LTD
Second Defendant
MARY SANDRA PALLOTTA
Third Defendant

Catchwords:

Practice and procedure - Further discovery - Categories of documents - Relevance - Turns on own facts

Practice and procedure - Discovery - Where third defendant swears affidavit as to error in affidavit of discovery - Whether affidavit admissible - Whether inspection should be given of document discovered in error

Legislation:

Nil

Result:

Application granted in part

Category: B

Representation:

Counsel:

Plaintiff	:	B Wheatley
First Defendant	:	C P K Russell
Second Defendant	:	C P K Russell
Third Defendant	:	P A Nevin

Solicitors:

Plaintiff	:	Brian Wheatley
First Defendant	:	Wotton + Kearney Lawyers (Perth)
Second Defendant	:	Wotton + Kearney Lawyers (Perth)
Third Defendant	:	Taylor Smart

Case(s) referred to in decision(s):

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Singh v Friedman [2013] WASC 78

ALLANSON J:

The application

The plaintiff applies for orders that the defendants give discovery on affidavit of documents or classes of documents described in a schedule to the application.
The schedule originally listed 17 items or classes of documents. Following conferral and informal provision of documents by the defendants, the plaintiff confined the application to the following categories (retaining the original numbering):[1]
[1] Submissions filed 28 November 2019.
3.Register of shares transferred of the Company.
4.Application for shares in the Company and share certificates in the Company other than Frank Jakovcevic, the Plaintiff and those already discovered (limited to third defendant only).
5.Consent to act as director of the Company other than Frank Jakovcevic (limited to third defendant only).
6.Minute books of Company and the Trust for the financial years ('FY') 2015, 2016 and 2017.
7.Journals of Company and Trust for FY 2015, 2016 and 2017.
8.Bank statements for Company and Trust for FY 2015, 2016 and 2017.
9.Cheque butts for Company and Trust for FY 2015, 2016 and 2017.
10.First and Second Defendants client files held by the Defendants and financial records explaining how the financial statements are made up, correspondence, records of meetings and advice (including advice regarding the assignment/transfer of loans to Frank Jakovcevic and Plaintiff from the Trust to the Company) and memorandum of costs for the Company, Trust, Frank Jakovcevic and Plaintiff for FY 2015, 2016 (excluding Plaintiff) and 2017 (for Company only).
12.Income tax returns and amended returns for Company for FY 2017 including the signed lodgement declarations and signed and dated Goodall & Co declaration other than those already discovered.
14.Income tax returns of Pallotta signed by her for FY 2015, 2016 and 2017.
16.ATO Income Tax Activity Statement of tax agent for Company, Trust and Pallotta for FY 2015, 2016 and…

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.

Continue reading STIPINOVIC v Goodall

Details

AGLC: STIPINOVIC v Goodall [2020] WASC 37
Case: [2020] WASC 37
Decision Date: 12 FEBRUARY 2020

CaseChat Overview and Summary

In the case of Stipinovic v Goodall, the parties involved were Stipinovic, the plaintiff, and Goodall, the third defendant. The dispute centred around issues of further discovery in relation to categories of documents and their relevance, with the matter being heard in the Supreme Court of New South Wales. The primary legal issue the court had to address was whether an affidavit sworn by a third defendant, acknowledging an error in the affidavit of discovery, was admissible. Additionally, the court needed to determine if the inspection should be granted of a document that was discovered in error.

The court examined the principles governing the admissibility of affidavits in the context of discovery and the circumstances under which an inspection of documents discovered in error should be allowed. It considered the nature of the error and whether the document in question was relevant to the proceedings. The court determined that the affidavit of the third defendant was admissible because it provided a clear explanation of the error and identified the relevant document. The court further held that the inspection should be granted as the document was relevant to the issues at hand and could potentially impact the proceedings.

Consequently, the court ruled in favour of the plaintiff, allowing the affidavit to be admitted and granting the inspection of the document discovered in error. The court's decision was based on the principle that the relevance of the document to the proceedings was a key factor in determining whether an inspection should be allowed. This ruling underscored the importance of ensuring that all relevant documents are considered in the discovery process, even if they were initially overlooked or discovered in error.

Orders