Veolia Environmental Services (Australia) Pty Ltd v Baglin

[2008] QDC 274

[2008] QDC 274

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 681 of 2008

VEOLIA ENVIRONMENTAL SERVICES (AUSTRALIA) PTY LTD (ACN 051 316 584)	Plaintiff
and
MICHELLE LYNETTE ANN BAGLIN AND ANOR	Defendants

BRISBANE

..DATE 18/11/2008

ORDER
CATCHWORDS: Uniform Civil Procedures Rules r374 - "guillotine orders" refused which would lead to a substantial judgment for the damage to the plaintiff's vehicle in a collision should the defendant fail to produce copies of documents disclosed by her (in respect of which it appeared possible former solicitor were exercising a lien).

HIS HONOUR:  The Court has made an order in terms of the initialled draft which requires the defendant to produce listed documents disclosed by her within 14 days of posting to her address for service of copy of this order.

...

HIS HONOUR:  As requested by Mr Walker, appearing for the applicant/plaintiff, costs are made costs in the cause.

I decline to include in the order the proposed paragraph 2 which sought the striking out of the notice of intention to defend and defence in default of compliance with the principal order.

The warrant for such a provision is rule 374.  In the ordinary course of things that would be invoked only on a separate application in that regard after failure to comply with the Court's order made today. 

On occasions "guillotine orders", as they are called, are made in advance.  They often have a tendency to produce unlooked for, even unjust outcomes.  The circumstances of the present matter are obscure, but cause me concern in that regard.

The plaintiff's claim is for property damage to its motor vehicle allegedly caused by the negligent driving of the late Lorraine Elizabeth Spearing.  The defendant is sued as her executor.  It is a straightforward property damage claim.

At one stage an insurer was involved as third party.  It has been released by the defendant who was formerly represented by solicitors but now acts for herself. 

She has filed a rather unusual address for service which appears to be her place of employment, a sizeable public institution.  Mr Walker has some experience of communications sent to that address proving effective and in those circumstances the Court should accept his affidavit of service of the application as effective for its purpose.

The documents which the plaintiff wishes to have produced are generally speaking correspondence.  It is not the kind of proceeding in which the defendant's documents are likely to be of great importance, but the possibility can't be discounted, their relevance having been conceded by the defendant when she disclosed them, that they may contain admissions useful to the plaintiff. 

No reason appears for the defendant's failure to comply with the request to produce what she has disclosed.  Mr Walker surmises that the former solicitor is exercising a lien.  If he is correct, the present circumstances are the not uncommon ones in which a contest arises between a legal practitioner's enhancing his or her prospects of getting paid and the requirements of a proper trial for the purposes of which the relevant material is or should be made available.  Without descending into detailed consideration of the matter, which would be an idle exercise given that the circumstances are not known, I would be sanguine that by use of the Court's processes.  The solicitors, if they are asserting a lien, could be prevailed upon, even compelled to produce the documents to the Court which would permit their being inspected by persons interested and entitled, such as the plaintiff and its legal people.  That procedure would ensure that the documents not come into the defendant's possession or control, but see the interests of justice served.

Circumstances alter cases.  Doubtless there would be some contexts in which few would harbour concern that a claim was defeated because primacy was accorded to the solicitor's entitlements.  The considerations, I think, might be different where, giving full effect to the solicitor's lien might lead to a judgment being suffered by a defendant without means to satisfy the lien, which was judgment totally contrary to what justice or even the law might require as the outcome on the merits.

Mr Walker has told me a little more of the factual circumstances, which include the defendant's having distributed the deceased's estate, which he says included an unencumbered house property, notwithstanding knowledge of the plaintiff's claim.  It may well be that the solicitor formerly acting for the defendant also acted in estate matters and bears some responsibility.  The deceased apparently died in or as a result of the relevant collision.

There are, thus, circumstances which may count against the defendant as a person deserving sympathy from the point of view of the claim being litigated to determination. 

At this stage, I think it entirely inappropriate that she, in her capacity of executor, ought to suffer a judgment in excess of $50,000 without any examination of the merits, which, in principle, in a motor vehicle collision may well not necessarily be as the plaintiff would accept.

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