Tynan v Filmana Pty Ltd (No 2) - [2015] QSC 367

SUPREME COURT OF QUEENSLAND

CITATION:

Tynan & Anor v Filmana Pty Ltd & Ors (No 2) [2015] QSC 367

PARTIES:

DAVID PATRICK TYNAN and JUDITH GARCIA TYNAN
(plaintiffs)
v
FILMANA PTY LTD ACN 080 055 429
(first defendant)
AND
ANNA-MARIA SCIACCA
(second defendant)
AND
PHILIPPO SCIACCA
(third defendant)

FILE NO/S:

BS No 5923 of 2012

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

21 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2015

JUDGE:

Burns J

ORDER:

The orders of the court are that:

1.      Save for any document that is the subject of a valid claim for legal professional privilege, the plaintiffs produce for the defendants’ inspection by 1 February 2016 any documents:

(a)     That are directly relevant to the allegations made in paragraphs 11 to 14 of the Defence and paragraphs 6 to 9 of the Reply;

(b)     Recording communications in the period from 16 November 2011 to 5 April 2012 between:

i)           The plaintiffs, their solicitors or their real estate agent and prospective purchasers of the property which is the subject of this proceeding, or between any of them;

ii)          The plaintiffs or their solicitors on the one hand and the real estate agent on the other hand concerning prospective purchasers of the property which is the subject of this proceeding; or

iii)        The plaintiffs and their solicitors concerning prospective purchasers of the property which is the subject of this proceeding;

that are directly relevant to the allegations made in paragraph 56 of the Fifth Further Amended Statement of Claim, paragraph 9 of the Defence and paragraph 4 of the Reply;

2.      The application brought by the defendants and the cross-application brought by the plaintiffs be adjourned to a date to be fixed; and

3.      Costs be reserved to the further hearing.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – ORDERS FOR FURTHER AND BETTER DISCOVERY – whether orders for further disclosure should be made – whether the disclosure sought was relevant to allegations in issue on the pleadings

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – OTHER CASES – where the plaintiffs filed a cross-application to vary case flow orders – where the defendants failed to comply with those orders in certain respects – where the effect of the variation sought would be to vacate orders made for the mediation of the dispute – where the plaintiffs also applied to have the matter set down for hearing – whether there was utility in the parties attending a mediation in the circumstances – whether the case flow orders should be varied

Uniform Civil Procedure Rules 1999 (Qld) rr 149, 150, 211, 223.

Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279

Boz One Pty Ltd v McLellan (2015) 105 ACSR 325

Central Queensland Mining Supplies Pty Ltd v Colombia Steel Casting Co Ltd [2011] QSC 183

Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256

Filmana Pty Ltd…

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] QSC 367
Decision Date: 21 December 2015

CaseChat Overview and Summary

The matter of Tynan v Filmana Pty Ltd (No 2) was before the court and concerned a dispute between the plaintiffs, seeking damages for breach of contract, and the defendants, who were being sued for their alleged role in the sale of a property. The dispute included allegations of misleading conduct and breach of fiduciary duty. The case was primarily focused on the discovery of documents and the potential mediation of the dispute. The court had to decide whether further discovery orders should be made and whether there was any utility in the parties attending a mediation session.

The court examined whether the disclosure sought by the defendants was relevant to the allegations in issue on the pleadings. It was established that the plaintiffs needed to produce documents that were directly relevant to the allegations made in specific paragraphs of the pleadings, particularly those relating to communications between the parties and prospective purchasers of the property. The court also considered the cross-application to vary case flow orders and whether there was any benefit in the parties attending a mediation session, given the nature and complexity of the allegations. The court found that there was indeed utility in the parties attending a mediation, and that the plaintiffs should produce the relevant documents for inspection by the defendants.

In its decision, the court ordered that the plaintiffs were to produce for inspection by the defendants any documents that were directly relevant to the allegations in issue, with certain exceptions for documents that might be subject to a valid claim for legal professional privilege. The application brought by the defendants and the cross-application brought by the plaintiffs were both adjourned to a date to be fixed, and costs were reserved to the further hearing. This decision underscored the importance of the relevance of documents in litigation and the potential benefits of mediation in resolving complex disputes.

The court's orders highlighted the necessity for thorough and relevant document disclosure in litigation, particularly in cases involving allegations of misleading conduct and breach of fiduciary duty. The decision also demonstrated the court's willingness to consider the utility of mediation in resolving disputes, even in complex matters. The outcome emphasised the importance of compliance with case flow orders and the consequences of failing to do so.

Orders

Orders of the court

The orders of the court are that:

1. Save for any document that is the subject of a valid claim for legal professional privilege, the plaintiffs produce for the defendants’ inspection by 1 February 2016 any documents:

(a) That are directly relevant to the allegations made in paragraphs 11 to 14 of the Defence and paragraphs 6 to 9 of the Reply;

(b) Recording communications in the period from 16 November 2011 to 5 April 2012 between:

i) The plaintiffs, their solicitors or their real estate agent and prospective purchasers of the property which is the subject of this proceeding, or between any of them;

ii) The plaintiffs or their solicitors on the one hand and the real estate agent on the other hand concerning prospective purchasers of the property which is the subject of this proceeding; or

iii) The plaintiffs and their solicitors concerning prospective purchasers of the property which is the subject of this proceeding;

that are directly relevant to the allegations made in paragraph 56 of the Fifth Further Amended Statement of Claim, paragraph 9 of the Defence and paragraph 4 of the Reply;

2. The application brought by the defendants and the cross-application brought by the plaintiffs be adjourned to a date to be fixed; and

3. Costs be reserved to the further hearing.

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:	Tynan & Anor v Filmana Pty Ltd & Ors (No 2) [2015] QSC 367
PARTIES:	DAVID PATRICK TYNAN and JUDITH GARCIA TYNAN (plaintiffs) v FILMANA PTY LTD ACN 080 055 429 (first defendant) AND ANNA-MARIA SCIACCA (second defendant) AND PHILIPPO SCIACCA (third defendant)
FILE NO/S:	BS No 5923 of 2012
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	21 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2015
JUDGE:	Burns J
ORDER:	The orders of the court are that: 1. Save for any document that is the subject of a valid claim for legal professional privilege, the plaintiffs produce for the defendants’ inspection by 1 February 2016 any documents: (a) That are directly relevant to the allegations made in paragraphs 11 to 14 of the Defence and paragraphs 6 to 9 of the Reply; (b) Recording communications in the period from 16 November 2011 to 5 April 2012 between: i) The plaintiffs, their solicitors or their real estate agent and prospective purchasers of the property which is the subject of this proceeding, or between any of them; ii) The plaintiffs or their solicitors on the one hand and the real estate agent on the other hand concerning prospective purchasers of the property which is the subject of this proceeding; or iii) The plaintiffs and their solicitors concerning prospective purchasers of the property which is the subject of this proceeding; that are directly relevant to the allegations made in paragraph 56 of the Fifth Further Amended Statement of Claim, paragraph 9 of the Defence and paragraph 4 of the Reply; 2. The application brought by the defendants and the cross-application brought by the plaintiffs be adjourned to a date to be fixed; and 3. Costs be reserved to the further hearing.
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – ORDERS FOR FURTHER AND BETTER DISCOVERY – whether orders for further disclosure should be made – whether the disclosure sought was relevant to allegations in issue on the pleadings PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – OTHER CASES – where the plaintiffs filed a cross-application to vary case flow orders – where the defendants failed to comply with those orders in certain respects – where the effect of the variation sought would be to vacate orders made for the mediation of the dispute – where the plaintiffs also applied to have the matter set down for hearing – whether there was utility in the parties attending a mediation in the circumstances – whether the case flow orders should be varied Uniform Civil Procedure Rules 1999 (Qld) rr 149, 150, 211, 223. Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Boz One Pty Ltd v McLellan (2015) 105 ACSR 325 Central Queensland Mining Supplies Pty Ltd v Colombia Steel Casting Co Ltd [2011] QSC 183 Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256 Filmana Pty Ltd…