VINCEL v FAI Life Insurance Society Ltd

[2001] WADC 85

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   VINCEL -v- FAI LIFE INSURANCE SOCIETY LTD [2001] WADC 85

CORAM:   REGISTRAR KINGSLEY

HEARD:   7 MARCH 2001

DELIVERED          :   5 APRIL 2001

FILE NO/S:   CIV 1386 of 1999

BETWEEN:   JIRI VINCEL

Plaintiff

AND

FAI LIFE INSURANCE SOCIETY LTD
Defendant

Catchwords:

Practice - Discovery of documents - Application by defendant to compel plaintiff to bring an application pursuant to Freedom of Information Act 1982 (Cwth)

Legislation:

Freedom of Information Act 1982 (Cwth)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr J Sivanpathakumar

Defendant:     Ms J E Bartlett

Solicitors:

Plaintiff:     Sivan & Associates

Defendant:     Jackson McDonald

Case(s) referred to in judgment(s):

Linfa Pty Ltd v Citibank Ltd [1995] 1 VR 643

Palmdale Insurance Ltd (in Liq.) v L Grollo & Co Pty Ltd & Ors [1987] VR 113

Schipp v Cameron & Ors (1998) 38 ATR 1

Theodore v Australian Postal Commission [1988] VR 272

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  I refer to the appearances before me on 7 March 2001 by Mr Sivanpathakumar for the plaintiff and Ms Bartlett for the defendant.  The issue before me was the defendant's application for orders compelling the plaintiff to make an application to Centrelink under the Freedom of Information Act for copies of documents described in the Schedule to the chamber summons.  I adjourned the application for both parties to file written submissions relating to Schipp v Cameron & Ors (1998) 38 ATR 1. In that case Einstein J ordered the defendants apply for production of income tax returns pursuant to the Freedom of Information Act.  That order was made on the 13^th day of a trial. The present application on the part of the defendants arises under O 26 r 6 of the Rules of the Supreme Court relating to discovery of particular documents.

2. Both parties filed further written submissions – the plaintiff's submissions being singularly unhelpful as they did not address the issue of concern.

3. The starting point for consideration of this issue is the question of the term Power in the phrase "custody possession or power".  Authorities such as Theodore v Australian Postal Commission [1988] VR 272 and Linfa Pty Ltd v Citibank Ltd [1995] 1 VR 643 state that power denotes a presently enforceable legal right rather than a right that may be acquired by the taking of subsequent steps. In Palmdale Insurance Ltd (in Liq.) v L Grollo & Co Pty Ltd & Ors [1987] VR 113 and Schipp's case the issue of discovery arose in entirely different context:  In Palmdale's case the commercial rules gave a wider power in relation to discovery; and in Schipp's case the jurisdiction came again from a wider discretion in relation to discovery, and for the speedy determination of the real question between the parties.  Einstein J in Schipp's case expressly did not ground jurisdiction on the basis that the originals of the income tax returns were in the custody possession or power of the defendants.

4. I am of the opinion that the documents lodged with Centrelink are no longer in the custody possession or power of the plaintiff and therefore, pursuant to O 26 r 6 of Rules of the Supreme Court the defendant has no right to compel an application under the Freedom of Information Act.  However the defendant is entitled, as it relates to the plaintiff, to know when the documents were last in the possession of the plaintiff.

5. Accordingly the defendant is entitled to an order in terms of par 2.2 of the chamber summons.

6. The orders I make therefore are in term of par 1.1, par 1.2 and par 2.2 of the defendant's chamber summons filed 30 November 2000.

7. As for costs the plaintiff is entitled to the costs thrown away occasioned by the amendments to the defendant and counterclaim.

8. As for costs on the application these costs will be in the cause.