Todd v Novotny
[2001] WASC 125
TODD -v- NOVOTNY & ANOR [2001] WASC 125
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 125 | |
| Case No: | CIV:2281/1996 | 16 MAY 2001 | |
| Coram: | MASTER BREDMEYER | 22/05/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed Costs order made | ||
| PDF Version |
| Parties: | ROBERT JOSEPH TORRANCE TODD MICHAEL NOVOTNY BACKLOAD PTY LTD (ACN 009 451 192) |
Catchwords: | Costs Alleged failure of party to comply with a request to produce for inspection documents mentioned in an affidavit |
Legislation: | Rules of the Supreme Court 1971, O 26 r 8(2), r 8(3) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MICHAEL NOVOTNY
First Defendant
BACKLOAD PTY LTD (ACN 009 451 192)
Second Defendant
Catchwords:
Costs - Alleged failure of party to comply with a request to produce for inspection documents mentioned in an affidavit
Legislation:
Rules of the Supreme Court1971, O 26 r 8(2), r 8(3)
Result:
Application allowed
Costs order made
(Page 2)
Representation:
Counsel:
Plaintiff : Mr G D Cobby
First Defendant : Mr P Redding
Second Defendant : Mr P Redding
Solicitors:
Plaintiff : Tottle Christensen
First Defendant : Williams & Hughes
Second Defendant : Williams & Hughes
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: This is an application by the plaintiff dated 2 May 2001 for production and inspection of documents from a non-party, Mr Luke John Martino, an accountant, who was represented by Mr Redding. Mr Redding also represents the defendants but the present application is not against them. On 26 February 2001 Mr Martino filed an affidavit in opposition to the plaintiff's application to have him punished for contempt of court. In that affidavit he referred to working papers relating to Mr Novotny's tax returns and to "remaining documents [held by Deloitte Touche Tohmatsu] in respect of ... the defendants' tax returns".
2 At the hearing before me on 16 May, the application to produce the documents was not opposed. I made that order then. I reserved on the question of costs. This is my reserved ruling on the question of costs.
3 Mr Cobby, for the plaintiff, has sworn an affidavit dated 2 May 2001 in support of the application and Mr Redding has sworn an affidavit on 15 May 2001 in opposition. Each affidavit refers to faxed correspondence passing between these two solicitors.
4 In a fax to Mr Redding dated 12 March 2001 Mr Cobby asked to see the working papers relating to the first defendant's tax returns and the remaining documents held by the accountants in respect to the defendants' tax returns under O 26 r 8(2).
5 I quote O 26 r 8(2) and (3):
"8. (1) ...
(2) Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection by the party giving the notice.
(3) The party on whom a notice is served under paragraph (2) must within 4 days after service of the notice serve on the party giving the notice a notice stating a time within 7 days after the service thereof at which the documents or such of them as he does not object to produce, may be inspected at the place specified in the notice, and stating which, if any, of the documents he objects to produce and the grounds of his objection.
(Page 4)
- ... "
6 In a reply dated 16 March, Mr Redding said that the working papers referred to in the affidavit of Martino may be inspected at a mutually convenient time from Tuesday 20 March to 5.00 pm on Friday 23 March 2001.
7 Mr Cobby was unable to inspect the documents in that four-day time period because he was busy with Mr Tottle preparing for an application for a Mareva injunction between the same parties which was heard by Parker J on 28 March.
8 On 29 March Mr Redding wrote to Mr Cobby noting that the inspection had not taken place and that the time "within which the plaintiff could inspect the relevant documents has expired": see O 26 r 8(3). He advised that the documents had been returned to Deloitte Touche Tohmatsu. He said that the costs incurred in couriering the documents from the accountants to his office, and return, would be sought from the plaintiff at the determination of the plaintiff's motion for contempt.
9 On 27 April Mr Cobby sent a fax to Mr Redding and said that the plaintiff still wished to inspect the documents prior to the hearing of the motion for contempt: "Please let us know whether it will be necessary to apply for an order permitting inspection."
10 Mr Redding replied on the same day, stating that on 16 March he advised that the working papers were available for inspection and that at no time did the plaintiff attempt to inspect the papers. He repeated his earlier advice that on 29 March the working papers were returned to Mr Martino and that the time within which they could be inspected, had expired:
"It is to be noted that irrespective of whether our facsimile transmission of 16 March 2001 identified a four day period within which the working papers could be inspected, the documents were available for inspection in the period from 20 March 2001 to (at least) 29 March 2001 - a period exceeding 7 days."
- He noted that the plaintiff had not addressed the issue of costs incurred by Mr Martino in forwarded the working papers by courier to the solicitor's office and returning those documents by courier to Mr Martino. He concluded:
(Page 5)
- "The plaintiff has caused Mr Martino to incur costs and [the plaintiff] had an opportunity to inspect."
11 On 1 May Mr Cobby faxed a reply stating that Mr Redding had not answered the query as to whether it would be necessary for the plaintiff to apply for an order for production of the documents for inspection.
12 Mr Redding replied to that letter by fax, also on 1 May, stating, inter alia:
"Can it please be noted that the author of this facsimile transmission does not require the Plaintiff to make any application. In that regard, it is to be noted that there has been no response to the substantive contents of our facsimile transmission of 27 April 2001: in our view, there has clearly been a failure to comply with the recent Practice Direction regarding conferral for the purposes of Order 59 Rule 9. In the event the foreshadowed application is made, the alleged contemnor will refer to such failure to confer on the issue of costs."
13 On 2 May Mr Cobby lodged this application for an order to obtain inspection. Mr Cobby says that he is entitled to inspect the documents under O 26 r 8, that Mr Redding's failure to co-operate forced him to make this application which was unnecessary and he therefore seeks costs, I think against Mr Martino, on an indemnity basis in any event. Mr Redding, on the other hand, does not contest the application for an order for inspection but seeks a neutral order that there be no orders to costs or that costs be in the cause of the application for contempt.
14 In ruling on this dispute over costs I want to apportion blame. I consider Mr Redding was at fault in imposing a short period for inspection of only four days. Order 26 r 8 does not impose any time limit on the period when the plaintiff, in this case, can inspect. Rule 8(3) requires the party who receives the notice to respond within four days after service of the notice and stipulate a time within seven days after service of the notice within which the documents may be inspected. These are time limits imposed on Mr Martino (in this case) to respond to the request - and those time limits were met. But the rule is not a prescription for imposing a time limit on the period within which the plaintiff (in this case) can inspect. The inspection should be made within a reasonable time.
(Page 6)
15 Having said that, however, I consider Mr Cobby was partly at fault in not inspecting the documents within the four day period given. I know he was busy preparing for the Mareva injunction application in this same action, but he was being led in that, or at least assisted in that, by Mr Tottle and I note that Mr McCusker QC and Mr Tottle appeared for the plaintiff before the Judge on that application. I am sure if he tried he could have inspected them.
16 Mr Redding was at fault in his fax of 27 April in not answering Mr Cobby's query whether it would be necessary to apply for an order to get inspection. Nevertheless, Mr Redding redeemed that in his fax of 1 May stating that he did not require the plaintiff to make an application. That fax was sent on 1 May but did not satisfy Mr Cobby. On 1 May he replied in a letter which, inter alia, stated:
" ... please let us know:
1. will the documents requested be produced for inspection?
2. if the answer to question 1 is yes, when and where will they be produced for inspection?"
17 In a reply dated 2 May, Mr Redding outlined difficulties he had in speaking with Mr Cobby and other matters. Mr Redding then said:
"In relation to the production of documents for inspection, the position of Mr Martino was outlined in our facsimile transmission of 27 April 2001. It is to be noted, as there stated, the documents were available for inspection for a period of no less than 8 days. It is also to be noted such documents, according to the provisions of Order 26 Rule 8(3) must, within 4 days of receiving a request, be made available for inspection within 7 days. Mr Martino complied with this request. It was the Plaintiff that failed to inspect the documents within the time frame stipulated in this rule. The notice requiring the documents to be produced for inspection was issued by the Plaintiff (not Mr Martino) - Mr Martino had to comply with such notice irrespective of the date on which it was issued and irrespective of what other matters were taking place at that time. With the greatest of respect, we find the reference to preparation for the Plaintiff's application for asset preservation orders to be an irrelevancy - the solicitors apparently preparing for that application issued the same notice demanding production for inspection . As such, we see no reason advanced which would
(Page 7)
- persuade us to advise Mr Martino to produce those same documents for further inspection: particularly, given the Plaintiff's attitude to the costs incurred by Mr Martino in arranging for the documents to be couriered to our office and thereafter returned." (Emphasis mine.)
18 I consider it was probably necessary for Mr Cobby to bring this application. Although Mr Redding, in his fax of 1 May, said that he did not require the plaintiff to make any application, in his later fax of 2 May, in the extract quoted, he declines to give inspection on the basis that an opportunity to inspect was given and it was not taken. This is a wrong view for the reasons I have given earlier. The four day inspection period imposed by Mr Redding was short. There is no evidence that these documents were urgently needed by Mr Martino. They related to tax returns filed in earlier years. The Rules do not require the inspection to take place within seven days. They require the solicitor to have them available for inspection within seven days.
19 I will order that:
1. Subject to order 2, Mr Martino to pay the plaintiff's costs of this application, in any event.
2. The plaintiff is to pay Mr Martino's courier costs of $10.97 thrown away, in any event.
3. The "event" refers to the plaintiff's motion against Mr Martino for contempt
20 Given Mr Cobby's failure to inspect within the four-day period I see no justification for indemnity costs.
21 I note a bickering and unhelpful tone in the correspondence between the solicitors. The refusal of Mr Cobby to speak with Mr Redding on occasions is to be deplored. I would urge these two solicitors to try and co-operate better with each other in future to achieve the ideal of O 1 r 4A and r 4B that the interlocutory processes of the Court be determined in a fair and just way and in a timely manner at a cost affordable to the parties.
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