Taylor v CGU Insurance Ltd
[2004] FMCA 799
•12 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAYLOR v CGU INSURANCE LTD | [2004] FMCA 799 |
| PRACTICE AND PROCEDURE – TRADE PRACTICES – Discovery – whether documents relating to other surveillance operations relevant and discoverable. |
| Applicant: | ROBERT FLYNN TAYLOR |
| Respondent: | CGU INSURANCE LIMITED |
| File No: | WZ46 of 2004 |
| Delivered on: | 12 November 2004 |
| Delivered at: | Perth |
| Date of Last Submissions: | 18 October 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G Porter |
| Solicitors for the Applicant: | Talbot & Olivier |
| Counsel for the Respondent: | Ms M McDiarmid |
| Solicitors for the Respondent: | Dwyer Durack |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ46 of 2004
| ROBERT FLYNN TAYLOR |
Applicant
And
| CGU INSURANCE LIMITED |
Respondent
REASONS FOR JUDGMENT
This is an application by the Applicant pursuant to Rule 15.2 of the Federal Magistrates Court Rules 2001 (the FMCA Rules) for orders that:-
“1.Within seven (7) days of the date of this order the Respondent
1.1provide discovery verified on affidavit of all documents relating to instructions or jobs given by the Respondent to other surveillance providers and the amounts paid per job or instructions to other service providers during the period 1 January 1999 to 30 September 2000.
2.The Respondent pays the Applicants’ costs of this application in any event.”
In support of the application for further and better discovery the Applicant relies upon an affidavit of Gray Porter sworn 27 September 2004. In that affidavit Mr Porter who is a partner of the solicitors acting for and on behalf of the Applicant claims that a request was made for documents by letter dated 2 August 2004 addressed to the solicitors for the Applicant. In that letter the Applicant’s solicitors state the following:
“… We also refer to our letter dated 2 August 2004 requesting that your client say on oath, by way of further discovery, the whereabouts and availability for inspection of documents relating to instructions given to other service providers and the amounts paid to those service providers during the period mentioned in our client’s claim.
Would you kindly provide us with a reply before 12 pm on Thursday 12 August 2004.”
The Respondent ultimately replied by letter dated 24 August 2004 seeking further information in relation to the discovery request. In relation to that request for further information Mr Porter deposes that: “… the reason for requesting these documents was well known to the Respondent’s solicitors as the basis of the request, had been explained to the Respondent’s solicitors at the mediation. The reason why the discovery was required was to ascertain the number of jobs which were allocated and also the average cost paid by the Respondent in relation to those jobs.”
I should add in passing that reference made to an event occurring at mediation should not have been made in the affidavit material as in my view it is inappropriate to mention anything raised at or during the mediation. Nevertheless for the present purposes I am satisfied that there is nothing of any significance revealed from the mediation and that the parties should not be prejudiced as a result of the reference to the mediation.
The Applicant’s solicitors by letter dated 22 September 2004 renewed the request for production of the documents requested. Significantly that letter provides the following:-
“We renew our request for production by your client of all records relating to jobs given to other surveillance providers during the period 1 January 1999 to 20 September 2000. We confirm that these documents are relevant and should be discovered as they will establish the average amount paid by your client per surveillance job. …”
Mr Porter deposes that he believes that the Respondent would have “records of amounts paid to surveillance providers between January 1999 and September 2000 as these would have been retained for the Respondent’s financial purposes.”
The Respondent filed an Outline of Submissions in Opposition to the Applicant’s request for further discovery on 1 October 2004. The Respondent notes that the request for discovery essentially deals with two categories of documents namely those relating to instructions or jobs given by the Respondent to other surveillance providers during the period 1 January 1999 to 30 September 2000 and documents relating to amounts paid per job or instructions to those other service providers during that period. It was argued that even if the order was confined to instructions or jobs given by the Respondent to other members of the panel that Q Services was appointed to at the time. It would require extensive resources and costs. Further, instructions given by the Respondent contain private and commercially confidential information. It was argued that the issue of documents concerning amounts paid was imprecise and again would require extensive resources and costs and may contain commercially confidential information. The discovery of that class of documents it was argued is unnecessary and would not advance the Applicant’s case as it would not show the true measure of any damages claim. The average paid by the Respondent to other service providers other than the Applicant could not assist the Applicant’s damages claim according to the Respondent’s submissions because each instruction given to a licensed enquiry agent would vary in time and amounts paid for hourly surveillance costs, travel, mileage and sundry costs.
It was submitted that the Applicant has not stated the reason why documents that may show the number of jobs given to the Respondent to other licensed enquiry agents is relevant to any matter in issue nor is it claimed as the Applicant states the reason why documents showing the amount paid by the Respondent to other agents is relevant. The documents sought are unnecessary and irrelevant to the question of damages according to the Respondent’s submission. Any average amount paid by the Respondent to other agents would not be relevant as to whether the Applicant suffered loss or damage or indeed the measure of his damages.
The Respondent seeks an order that the Applicant’s motion dated
28 September 2004 be dismissed with costs.
Reasoning
Section 45 of the Federal Magistrates Court Act provides as follows:-
(1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings;
and
(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.
The FMCA Rules provide that the Court may make an order for disclosure of particular classes of documents (Rule 14.02) or may order a party to file an affidavit at any stage of the proceedings where it appears to the Court from evidence or from the nature or circumstance of the case or from any document filed that some document or class of documents relating to a matter in question in the proceedings may be or may have been in the possession, custody or control of a party (Rule 14.06).
The Court had already made an order in this matter pursuant to s.45 of the Federal Magistrates Act on 6 May 2004. This issue relates to two categories of documents which are now claimed to be relevant and which should be the subject of discovery by the Respondent. Having decided that it is in the interests of the parties to provide discovery in this matter and having made an appropriate declaration, it is now a matter for the Court as to whether or not the discovery should extent to the two categories of documents identified in the Applicant’s motion.
I am satisfied on the material before me that the documents sought to be discovered are relevant at least to the issue of damages and perhaps may be relevant in relation to the capacity of the Respondent to provide the level of two jobs per week to the Applicant as alleged by the Applicant. Whilst there may be some difficulty in resources addressing this issue by the Respondent it seems to me that the discovery should be confined to the particular period 1 January 1999 to 30 September 2000 and the relevant panel which is just under two years and further confined to identifying letters of appointment and/or engagement to other service providers and amounts paid per appointment during that period. I specifically exclude form this order the surveillance files and further direct that the documents to be discovered shall not be provided for inspection unless appropriate steps are taken to maintain confidentiality and privacy of any persons who were the subject of either instructions or the subject of surveillance. I can see no reason why the other service providers on the panel cannot be identified and the amounts paid although again it seems reasonable to me that in order to maintain commercial confidentiality that that information should be the subject of a further direction that it not be disclosed to any other person and that the information be used solely for the purpose of this litigation. I will consider directing during the hearing that information concerning payments to other service providers if sought to be confidential remain confidential.
Hence, I make the following directions:
(1)It is directed that the Respondent make file and serve a list of documents including those documents whereby the Respondent has appointed and/or engaged other surveillance providers on the panel of which the Applicant was a member during the period
1 January 1999 to 30 September 2000 together with documents evidencing payment to other surveillance providers on the panel during the relevant period.(2)It is directed that the list of documents be filed and served within 14 days of the date of this order with inspection to occur within 21 days of the date of this order.
(3)It is further directed that the list of documents shall not disclose the names of any persons from whom instructions were received and/or names or identity of any persons who may have been the subject of the surveillance requests and the Respondent be permitted to ensure that that information is not disclosed.
(4)Any information concerning the amounts paid to the other surveillance provider shall remain confidential and only be used for the purposes of this litigation unless otherwise ordered by the Court.
(5)The costs of the application for further discovery be reserved.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 November 2004
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