Testel Australia Pty Ltd v Rickard - [2015] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
TESTEL AUSTRALIA PTY LTD v RICKARD & ORS
[2015] SASC 174
Judgment of The Honourable Justice Sulan
30 October 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - OTHER MATTERS
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - ORDERS FOR FURTHER AND BETTER DISCOVERY
This is an appeal against a decision of a District Court Judge on appeal from a Master of the District Court. The District Court Judge upheld a decision of the Master not to order further and better disclosure, and to refuse to order disclosure of documents referred to in other documents filed with the court pursuant to r 61 of the Supreme Court Civil Rules 2006 (SA).
The appellant requires permission to appeal pursuant to r 288(1)(a)(ii). The substantive appeal and permission were heard together.
Held, refusing permission to appeal:
1. There is no issue of principle that has not previously been decided in relation to the further disclosure application, nor is it in the interests of justice to grant the application.
2. It is not in the interests of justice to grant permission on the r 61 application. Rule 61 was not intended to apply in the circumstances of this case.
Supreme Court Civil Rules 2006 (SA) r 288(1)(a)(ii); Supreme Court Civil Rules 1987 (SA) r 59.02; District Court Civil Rules 2006 (SA) r 61, referred to.
Advanced Resources Pty Ltd v Charlton [2007] SASC 434; Landmark Operations Limited v J Tiver Nominees Pty Ltd [2009] SASC 185; Mitropoulos v Hancock Corporation Pty Ltd [2007] SASC 43; Testel Australia Pty Ltd v Richard & Ors [2015] SADC 118; G K Sanford Pty Ltd v Jansen (1992) 36 FCR 83; Star Petroleum v Pertsinidis (Unreported, Supreme Court of South Australia, Perry J, 30 September 1993); Zadow v Tolmer Fuels Pty Ltd (Unreported, Supreme Court of South Australia, Lander J, 1 February 1995); BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Brealey v Drogemuller [1983] 108 LSJS 48; Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19; Testel v KRG Electrics [2013] SASC 91; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd & Anor [2011] SASC 64, considered.

TESTEL AUSTRALIA PTY LTD v RICKARD & ORS
[2015] SASC 174
Civil: Application

SULAN J: This is an application for permission to appeal from a decision of a Judge of the District Court on appeal from a Master of the District Court in respect of interlocutory matters concerning disclosure. The application involves two substantive issues; an application for further and better disclosure, and an application for production of documents referred to in two affidavits filed with the District Court pursuant to r 61 of the District Court Civil Rules 2006 (SA) (“DCR”). The applicant seeks permission to appeal pursuant to r 288(1)(a)(ii) of the Supreme Court…

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: [2015] SASC 174
Decision Date: 30 October 2015

CaseChat Overview and Summary

The matter before the court was an appeal brought by Testel Australia Pty Ltd against a decision made by Rickard. The appeal related to orders for further and better discovery made during the trial. The case was heard in the Supreme Court of South Australia. The primary dispute was whether the trial judge erred in granting permission for further discovery and in the manner in which the trial was conducted, specifically regarding the timing and handling of newly discovered documents.

The legal issues before the court included whether the trial judge had the authority to grant permission for further discovery under rule 61 of the Supreme Court Civil Procedure Rules 2006 (SA) and whether the granting of such permission was in the interests of justice. The court had to determine whether there were any issues of principle that had not been previously determined and if the granting of permission to appeal was warranted in the interests of justice.

The court held that the granting of permission for further discovery and the manner in which the trial was conducted did not constitute an error in principle that had not been previously determined. The court emphasised the importance of continuous discovery and the obligation of parties to disclose documents as they become available. The court noted that it is generally undesirable to disrupt the preparation for trial, and such matters should be dealt with by the trial judge if they arise during the trial. The court concluded that it was not in the interests of justice to grant permission to appeal on the further disclosure application, as the issues had been previously determined and there was no significant benefit to the parties in allowing the appeal.

Permission to appeal was refused as to both applications. The court's decision upheld the trial judge's discretion in managing the trial and the discovery process, reaffirming the importance of adhering to the rules of continuous disclosure and the procedural fairness in managing the discovery of documents during a trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In considering whether it is in the interests of justice to grant permission to appeal, I have had regard to the desirability for this action to be heard and determined without further delay and additional cost to the parties. The parties have an obligation to make continuous discovery. If during the trial it becomes evident that one or other party is required to make further discovery and disclosure, that party is obliged to do so. It is not unusual that documents are discovered during the progress of the trial. If that occurs, questions of adjournments to inspect or time to investigate matters further can be dealt with by the trial judge. It is generally undesirable to disrupt the preparation for trial.[14][14] See Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd & Anor [2011] SASCFC 64 at [15].Conclusion In relation to the further disclosure application there is no issue of principle that has not been previously determined, nor is it in the interests of justice to grant the application. The issues raised on the application relating to r 61 are not such that, in the interests of justice, permission to appeal should be granted. Permission to appeal is refused as to both applications.

Ratio Decidendi

Legal Principle Established

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