Trade Practices Commission v Gold Coast Property Sales P/L
[1994] FCA 842
•31 OCTOBER 1994
TRADE PRACTICES COMMISSION v. GOLD COAST PROPERTY SALES PTY LTD AND OTHERS
No. QG31 of 1994
FED No. 842/94
Number of pages - 4
Discovery
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
KIEFEL J
CATCHWORDS
Discovery - inference that further documents in existence.
Order 16, rules 5, 16 Federal Court Rules
HEARING
BRISBANE, 31 October 1994
#DATE 31:10:1994
Counsel for the Applicant: Mr J Sheahan
Solicitors for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr P B de Plater
Solicitors for the Respondent: Bell Rapp and Partners
ORDER
The Court orders that:
1. The First Respondent, Second Respondent, Third Respondent,
Fourth Respondent, Fifth Respondent and Sixth Respondent file and serve within seven (7) days of the date of this order, an affidavit stating whether the following classes of documents are or have been in their possession and, if the documents have been but are not now in their possession, what has become of the documents:
(a) promotional videos used in marketing land, as it is defined in the Amended Statement of Claim ("the land"), since January 1993;
(b) photographs used in marketing the land since January 1993;
(c) price lists used in marketing the land since January 1993;
(d) contracts of sale, Department of Lands transfer forms, notification of change of ownership forms and correspondence between Vendor and Purchaser evidencing the disposal of the land, where any of the First, Fifth or Sixth Respondents is described as the Vendor;
(e) contracts of sale, Department of Lands transfer forms, notification of change of ownership forms and correspondence between Vendor and Purchaser evidencing the acquisition of the land, where any of the First, Fifth or Sixth Respondents is described as the Purchaser.
2. The first to sixth respondents pay the applicant's costs of
and incidental to this motion to be taxed, and that the applicant be entitled to have those costs taxed forthwith.
NOTE: Settlement and entry of orders is dealt with in Order 36 of
the Federal Court Rules.
JUDGE1
KIEFEL J The applicant in these proceedings seeks injunctions restraining the respondents from making what are said to be false and misleading representations in respect of the sale of certain land which is identified on a map annexed to the statement of claim. Discovery and inspection have occurred and the applicant seeks orders for both specific further discovery and general discovery. The applicant has satisfied me that there are strong grounds for believing documents of the description or class referred to in paragraph 2 of the motion are in existence. Scripts for advertisements clearly establish the existence of promotional videos and photographs of the estate and they would likely have at least once been in the possession of one or more of the respondents.
The respondents' answer to this and the price list referred to in paragraph 2(c) of the motion is that the applicant does not go far enough and establish that the particular videos, photographs and lists have not been discovered. It is true that the applicant's solicitor refers to the list and says that he cannot by reference to it - he cannot in that list find reference to the particular items. Inspection has however taken place and I am told that that solicitor will undertake to file an affidavit to the effect that no such items were found upon inspection. That inference is in any event able to be drawn since the respondents have not pointed to any document discovered which fulfils the description.
The respondents have listed one price list at 1 February, 1994. The period in question on the pleadings is January 1993 to March 1994. The applicant has itself, though not discovered by the respondent, one list dated 1 July, 1993. There is, I consider, sufficient basis for supposing price lists were in existence and produced on the first day of each month during the period of the marketing. In addition to some 22 discovered contracts of sale, the applicant has, by reference to other documents such as Certificates of Title, evidence of the prior ownership of land by some of the respondents, and notifications of transfer of ownership proves that contracts of sale must have been entered into. It would follow that other documents relating to each sale would have been produced.
The respondents' approach was to question the number of these instances and to point out that it may not have had documents such as notification of change of ownership or Department of Lands transfer forms (as the purchaser may have) which is of course to say that the respondents' submission served to raise questions but provide no answers as to the doubt cast upon the sufficiency of their discovery.
The only other point taken concerning documents relating to the acquisition of the land was as to their relevance. Given the issues raised as to the representation that the land was sold at 1960's prices, or otherwise at a discount, the fact that the respondents may have purchased land shortly before and at a lesser price than that for which it was sold would be most pertinent.
In these circumstances I would grant the order sought in paragraph 2 of the notice of motion.
The question then is whether a general order ought to be made. Where, as here, it is shown that discovery has not been made in compliance with the Rules, an order for a fresh list of documents and affidavit verifying might be made under Order 15, rule 5 or Order 15, rule 16 if at least it is considered necessary (Rule 15).
Whilst I have some doubt about the respondents' or their legal advisers' true understanding of their obligation to discover, this is not a case where as a result I consider doubt has been cast over the whole of the list. Apart from the specific documents or classes of documents referred to, I do not understand the applicant to contend that the omissions to date show potentially even larger areas of non discovery. I should add, however, that if documents are discovered consequent upon this order which point to others also not discovered, I would have little hesitation at the very least in ordering a further general affidavit.
THE COURT ORDERS THAT: 1. The First Respondent, Second Respondent, Third Respondent,
Fourth Respondent, Fifth Respondent and Sixth Respondent file and serve within seven (7) days of the date of this order, an affidavit stating whether the following classes of documents are or have been in their possession and, if the documents have been but are not now in their possession, what has become of the documents:
(a) promotional videos used in marketing land, as it is defined in the Amended Statement of Claim ("the land"), since January 1993;
(b) photographs used in marketing the land since January 1993;
(c) price lists used in marketing the land since January 1993;
(d) contracts of sale, Department of Lands transfer forms, notification of change of ownership forms and correspondence between Vendor and Purchaser evidencing the disposal of the land, where any of the First, Fifth or Sixth Respondents is described as the Vendor;
(e) contracts of sale, Department of Lands transfer forms, notification of change of ownership forms and correspondence between Vendor and Purchaser evidencing the acquisition of the land, where any of the First, Fifth or Sixth Respondents is described as the Purchaser.
The first to sixth respondents pay the applicant's costs of
and incidental to this motion to be taxed, and that the applicant be entitled to have those costs taxed forthwith.
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