VISCARIELLO v Macks (No 6)

[2010] SASC 303

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Civil)

VISCARIELLO v MACKS (No 6)

[2010] SASC 303

Reasons of Judge Lunn a Master of the Supreme Court

27 October 2010

PROCEDURE

Application by plaintiff under 87R 60 for discovery by six non-parties including former solicitors and counsel for the defendant - held no general right of a party to obtain discovery from non-parties where the other party could not be trusted to have made proper discovery - conclusiveness of list of documents subject only to specific modes of challenge given by the Rules - plaintiff had not exhausted his rights of obtaining further discovery from defendant - failure to sufficiently identify documents for which discovery was sought from non-parties - applications all dismissed.

VISCARIELLO v MACKS (No 6)
[2010] SASC 303

JUDGE LUNN:

Reasons on plaintiff’s applications for non-party discovery of documents

Background[1]

[1] This Background is an edited version of the history given in my reasons No 3 [2008] SASC 225.

1. The plaintiff was a director, employee and creditor of Bernsteen Pty Ltd (“Bernsteen”).  This case is also concerned with the affairs of a connected company, Newmore Pty Ltd (“Newmore”), which had a similar history to  that of Bernsteen.

2. Paragraph 77 of the Second Amended Statement of Claim (“the ASOC”) pleads:

   77At all material times from November 2001, Tanya Hamilton-Smith (“Hamilton-Smith”) had a close personal relationship with the Plaintiff.

   Nothing more is said about this relationship in the ASOC or the affidavits.  In all the proceedings mentioned below, Hamilton-Smith was represented by the legal firm of McNamaras, in which the plaintiff was a lawyer.

3. The defendant is an accountant and a liquidator.  At various times up until 2001 he had given professional advice to the plaintiff and Bernsteen.  As a result of alleged advice given by the defendant to the plaintiff on 5 December 2001 the plaintiff caused Bernsteen and Newmore each to appoint the defendant as its voluntary administrator.  On 21 December 2001 the creditors of Bernsteen and Newmore resolved that they each be wound up.  The defendant then became, and has remained, their liquidator.  The ASOC pleads a number of causes of action relating to the winding up of Bernsteen and Newmore, and the failure to implement Deeds of Company Arrangement, which are not directly relevant to the present applications. 

4. The relevant parts of the ASOC commence at paragraph 77, which is quoted above.  Set out below in chronological order are eight Court actions (“the eight actions”) which are pleaded in the ASOC.  (The numbers in [ ] are the paragraph numbers in the ASOC dealing with the particular action or topic).

5. “First action” [81]. Bernsteen sued Hamilton-Smith in the Adelaide Magistrates Court, 10039/02, claiming $27,733.  There was a counterclaim for $27,769.  Interim allocaturs for interlocutory costs were made in favour of Bernsteen against Hamilton-Smith on 23 March 2005 for $1,972 and on 4 April 2005 for $1,903.  Bernsteen served a bankruptcy notice dated 7 April 2005 on Hamilton-Smith based on these allocaturs.

6. “Second action” [83]. On…