Vollbon v Tower Finance Consulting P/L

[2012] QDC 126

[2012] QDC 126

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3466 of 2007

SHANE VOLLBON	Applicant
and
TOWER FINANCE CONSULTING PTY LTD AND MICHAEL COLLINS	Respondents

BRISBANE

..DATE 18/04/2012

ORDER

CATCHWORDS
Uniform Civil Procedure Rules r 171, r 214, r 225

Defendant fails to comply with orders to disclose or produce documents referred to in pleading - whether plaintiff should have judgement for damages to be assessed - whether relevant paragraphs of defence should be struck out
HIS HONOUR:  The parties are here now because of Judge McGill's order adjourning an application until today.  That order was made on the 27th of March 2012.  It required the defendants to file and serve a notice of appointment of solicitors by 4 p.m. on the following day, fixing a hearing for the 30th of March 2012 if such a notice was not filed by Mr Miotti, the defendant's new solicitor, in the event that hearing didn't happen.

His Honour ordered that "the defendants are to comply with the orders made by Samios DCJ on 21 November 2011 by 13 April 2012", and also ordered them to pay the costs of the adjournment, which he fixed.  Judge Samios's order required the defendants to deliver a list of documents by 4 p.m. on the 5th of December 2011 in accordance with Rule 214.  Also by that time to "deliver to the plaintiff complete copies of the documents requested at Items 1; 3; 7 and 10 of the plaintiff's letter to the defendants dated 12th September 2011 and to pay costs to be assessed on the standard basis.".  The problem which the plaintiff and his lawyers are taking seriously is that there's a discrepancy between the defendants' defence, filed the 28th of July 2008 and their disclosure, which is currently a "list of documents", dated 13 April 2012.

MR KELSO:  Your Honour, I think it should be correctly referred to as it is in the footer.

HIS HONOUR:  But - this is the complete list now, isn't it?

MR KELSO:  Yes, it‑‑‑‑‑

HIS HONOUR:  You don’t have to refer to older lists.

MR KELSO:  That's the current complete list, yes.

HIS HONOUR:  Yes.  The document which is presented as a current complete list for disclosure purposes is described in the footer as "supplementary list of documents", the disclosure description to which Mr Kelso for the plaintiff refers.  The columns in that list include columns for number, description of document, "person who made document", and date.  There is no instance of a document listed as made by the second defendant.  However, in the defence, he is alleged to have done certain things by letter, facsimile or email and only in one instance to have done something "on behalf of the first defendant".

So far as appears, it runs a business of offering financial advice and apparently arranging finance for clients such as the plaintiff.  Effectively, the company is the second defendant, Mr Collins.  I would have made the assumption that everything attributed to the second defendant was done on behalf of the first defendant in this context.  The documents with which the pleading connects him have been disclosed as documents of the first defendant.  Nonetheless, their disclosure has been made jointly and the court's today placed in a position of having to do something about provision to the plaintiff, if not disclosure to the plaintiff, of documents referred to in the pleading.

It seems to me that technically the defendants are in default.  Somewhat faintly, Mr Kelso submitted that his client was entitled to judgment which would be for damages to be assessed in claims under the Trades Practices Act and the like, under Rule 225(2)(b).  What he is more determinedly seeking is some "other order" under that rule in the form of striking out of the defence.  I'm not at all satisfied that the defendants' defaults are sufficiently serious to justify any judgment against it and nor am I satisfied that the pleading as a whole ought to be struck out.  I took Mr Miotti to be resisting the striking out of any parts of the pleading but it seems to me that it's the neatest approach to strike out those parts of the pleading which assert, read literally, that there are documents produced by the second defendant on the basis that when asked to produce those documents and disclose - surely a reasonable request - the defendants have produced nothing.  I think one could say at a pinch that Rule 171(1)(b) applies, namely that in these circumstances those parts of the pleading have a tendency to prejudice the fair trial of the proceeding.

The orders will be as follows, made on the undertaking of the second defendant, who's in court to give it, to provide a sworn explanation of apparently missing pages of disclosed documents and the non-disclosure of valuations referred to in the defence: (1) that the following paragraphs of the defence be struck out given the second defendant's failure to disclose documents referred to therein as sent by him (they are 3(c)(ii); 8(5)(b); and 8(5)(f)(i) and (iii)); (2) that the defendants have leave to replead; (3) the costs of today be the plaintiff's costs in the cause, so that if the plaintiff succeeds in the proceeding he will get the costs of today. 

Apropos the undertaking, the explanation for selectively numbered pages of documents being disclosed is apparently that they are the relevant pages of kits which are produced for purposes of applications for finance and the like, only certain pages of which are ever actually used.  Items 59 and 60 in the disclosure are these kits.  Some paragraphs of the defence refer to valuations which led lenders or potential lenders to the plaintiff to take certain points of view.  Those, it seems, although they are referred to in the defence, are documents which the defendants neither generated nor ever were in possession of, rather valuations obtained by the relevant lenders.

Does that cover everything?

MR KELSO:  The email, your Honour.  I think it should just go into the undertaking, your Honour. 

HIS HONOUR:  Oh, sorry, all right.

MR KELSO:  Your Honour was saying in relation to the undertaking to provide some more material‑‑‑‑‑

HIS HONOUR:  That's right, yes.

MR KELSO:  You were talking about the missing pages of the kits.  You talked about the valuations‑‑‑‑‑

HIS HONOUR:  Yes.

MR KELSO:  ‑‑‑‑‑how they apparently weren't‑‑‑‑‑

HIS HONOUR:  But is the email in the similar category?

MR KELSO:  The email's in a similar category.

MR MIOTTI:  Yes, your Honour, it would be in a similar category.

MR KELSO:  It's page - it's the missing page of the email.

HIS HONOUR:  Oh, I see, it's the missing page of an email.

HIS HONOUR:  All right.  Regarding the missing pages of disclosed documents - will it say, "including an email"?

MR KELSO:  Yes, your Honour.
HIS HONOUR:  All right. 

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