TSPD Pty Ltd v. Resortrez Pty Ltd - [2008] QSC 1

SUPREME COURT OF QUEENSLAND

CITATION:

TSPD Pty Ltd v Resortrez Pty Ltd [2008] QSC 001

PARTIES:

TSPD PTY LTD
ACN 114 480 830
(Applicant)
v
RESORTREZ PTY LTD
ACN 116 629 773
(First Respondent)

TERRY SEIRLIS
(Second Respondent)

FILE NO:

9309 of 2007

DIVISION:

Trial

PROCEEDING:

Application

COURT:

Supreme Court

DELIVERED ON:

18 January 2008

DELIVERED AT:

Brisbane

HEARING DATE:

Application without oral hearing

JUDGE:

Fryberg J

ORDER:

1) The parties be granted leave to inspect and copy the documents produced by Suncorp-Metway Limited pursuant to the subpoena dated 22 October 2007 and returnable 26 October 2007

2) The costs of this application be reserved

CATCHWORDS:

Procedure – Existence of legitimate forensic purpose – No objection to production of documents

Procedure – Discovery and interrogatories – Production and inspection – Generally – Documents in possession of person not a party – Rule 242(2) applicable only where documents are used to prove matter in them

Uniform Civil Procedure Rules 1999 r 242, r 415, r 489
Rules of the Supreme Court 1900 O 40, r 29

Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Director-General of the Department of Fair Trading v Vasey Housing Association NSW[2002] NSWCA 320
Greyhound Australia Pty Ltd and Ors v Deluxe Coachlines Pty Ltd and Ors (1986) 67 ALR 93.
National Employers’ Mutual General Association Ltd v Waind (1978) 1 NSWLR 372
NSW Commission of Police v Tuxford[2002] NSWCA 139
R v Spizzirri[2000] QCA 469

SOLICITORS:

Applicant: Home Wilkinson Lowry, Lawyers
First Respondent: Hall Lawyers
Second Respondent: Hall Lawyers

FRYBERG J: There is before me an application by TSPD Pty Ltd for an order that the parties be granted leave to inspect and copy documents produced to the court by Suncorp-Metway Ltd (Suncorp) pursuant to a subpoena dated 22 October 2007. The application invokes r 489 of the Uniform Civil Procedure Rules; since none of the exceptions listed in that rule applies, I must decide it without an oral hearing. As I propose to make an order, it is necessary that I state my reasons for doing so in writing.[1]
[1]Rule 498.

The proceedings

TSPD filed an originating application on 17 October seeking a declaration that money held by Suncorp in a certain account was held on trust for it by the first respondent, Resortrez Pty Ltd, or that it was the property of TSPD, and for certain other relief. On the following day it obtained an interim injunction restraining Resortrez from, among other things, dealing with the money in the account without consent. The interlocutory application was adjourned to 26 October.

On 22 October TSPD obtained a subpoena for production directed to the proper officer of Suncorp for the production of documents specified therein before the court on 26 October. On 24 October the documents were produced to the Registry in accordance with r 420.

The application duly came before the court on 26 October. On that day orders (in effect) for the continuation of the injunctions were…

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.

Keep reading for free

Create a free CaseChat account to read TSPD Pty Ltd v. Resortrez Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] QSC 1
Decision Date: 18 January 2008

CaseChat Overview and Summary

Resortrez Pty Ltd brought an action against TSPD Pty Ltd. Resortrez sought various relief including damages, an injunction and an account of profits. Resortrez sought discovery of documents from TSPD. TSPD resisted the discovery, claiming the documents were protected by legal professional privilege. Resortrez subsequently applied for an order for TSPD to produce the documents to a third party, Suncorp-Metway Limited, for inspection. The court had to determine whether the application met the requirements of Rule 242(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Qld). The court had to consider whether the documents were relevant to the proceedings and whether they were used to prove a matter in them.

The court considered whether the application met the requirements of Rule 242(2). The court noted that Rule 242(2) applied only where the documents were used to prove a matter in them. The court found that the documents were relevant to the proceedings, as they related to the cause of action. The court also found that the documents were not used to prove a matter in them, as they were sought for the purpose of determining the scope of legal professional privilege. The court noted that there was no objection to the production of the documents to Suncorp-Metway Limited, and that there was a legitimate forensic purpose for doing so. The court therefore made an order granting leave for the parties to inspect and copy the documents produced by Suncorp-Metway Limited. The costs of the application were reserved.

Orders

Orders of the court

1) The parties be granted leave to inspect and copy the documents produced by Suncorp-Metway Limited pursuant to the subpoena dated 22 October 2007 and returnable 26 October 2007

2) The costs of this application be reserved

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	TSPD Pty Ltd v Resortrez Pty Ltd [2008] QSC 001
PARTIES:	TSPD PTY LTD ACN 114 480 830 (Applicant) v RESORTREZ PTY LTD ACN 116 629 773 (First Respondent) TERRY SEIRLIS (Second Respondent)
FILE NO:	9309 of 2007
DIVISION:	Trial
PROCEEDING:	Application
COURT:	Supreme Court
DELIVERED ON:	18 January 2008
DELIVERED AT:	Brisbane
HEARING DATE:	Application without oral hearing
JUDGE:	Fryberg J
ORDER:	1) The parties be granted leave to inspect and copy the documents produced by Suncorp-Metway Limited pursuant to the subpoena dated 22 October 2007 and returnable 26 October 2007 2) The costs of this application be reserved
CATCHWORDS:	Procedure – Existence of legitimate forensic purpose – No objection to production of documents Procedure – Discovery and interrogatories – Production and inspection – Generally – Documents in possession of person not a party – Rule 242(2) applicable only where documents are used to prove matter in them Uniform Civil Procedure Rules 1999 r 242, r 415, r 489 Rules of the Supreme Court 1900 O 40, r 29 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Director-General of the Department of Fair Trading v Vasey Housing Association NSW[2002] NSWCA 320 Greyhound Australia Pty Ltd and Ors v Deluxe Coachlines Pty Ltd and Ors (1986) 67 ALR 93. National Employers’ Mutual General Association Ltd v Waind (1978) 1 NSWLR 372 NSW Commission of Police v Tuxford[2002] NSWCA 139 R v Spizzirri[2000] QCA 469
SOLICITORS:	Applicant: Home Wilkinson Lowry, Lawyers First Respondent: Hall Lawyers Second Respondent: Hall Lawyers