Welch v Rodgers
[2005] QDC 375
•13/10/2005
[2005] QDC 375
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3267 of 1998
| BERNADETTE WELCH | Plaintiff |
| and | |
| MYRTLE ISOBEL RODGERS | Defendant |
BRISBANE
..DATE 13/10/2005
ORDER
CATCHWORDS: Uniform Civil Procedure Rules r 250 - application by plaintiff that her accountant have possession of original financial records of a partnership formerly existing between the parties, presently with the defendant's accountant - defendant asserted risk to the records if they were removed - orders made for access to (but not removal of) records with provision that if the expert experienced difficulties, the records go into the custody of the Court.
HIS HONOUR: This is presented as an urgent application by the defendant to obtain access to accounting records and documents of a firm called B&M Boarding Kennels and Cattery which the parties operated between 1987 and 1998. Progress in the action has slowed down to the extent that Judge Ryrie, after characterising certain things that had happened as not steps in the proceeding, determined that the plaintiff needed leave to proceed under Rule 389, which leave was granted to the plaintiff. The trial was set for three days commencing the 5th of December 2005 and various directions were given by her Honour.
The defendant asserts difficulty in making suitable arrangements for her accountant, Ms Steffens, to obtain access to the accounting records which are apparently held now by the plaintiff's accountants, Cheryl Haslam and Associates. The application seeks that that firm "release all original partnership documents, bank statements, records and all original source documents associated with the accounting records of the partnership to the defendant's accountant, Ms Linda Steffens, for a period of one week".
Ms Steffens' affidavit recites certain difficulties she has as a sole practitioner in attending Cheryl Haslam's office and deposes:
"It's not common practice to require an accountant to attend at another accountant's offices to undertake a review of partnership records and preparation of expert reports. Ordinarily, these documents would be released to the accountant on their undertaking to keep and maintain the records whilst in their possession."
I must say I find that assertion rather amazing as a description of a general rule, although, doubtless, such arrangements are made on particular occasions.
What is special about this case is that the plaintiff asserts that serious concern would be caused if the records are released in the way sought. The Court has heard from Mrs Walker of eight books of cheque butts going missing for years after they and other documents had been entrusted to the defendant. They then turned up.
If there is anything in the plaintiff's assertion in her amended statement of claim filed 24th of August 1998 that the defendant, "Between 1 July 1987 and 6 January 1998 misappropriated or, alternatively, applied to herself the sum of $52,240," and similar allegations in the following paragraph, there is, I suppose, scope for concern that releasing original records to an agent or arguable agent of the defendant such as an expert accountant engaged might involve risk better avoided. The Court invited Mr Musgrave to point to any authority which shows a Court ordering that original records which may be of significance in the action and perhaps more widely be given to a party or witness proposed to be used by a party against the opposition of the other party (whether or not that other party has an interest in the documents). He was not able to meet that challenge.
I would not be prepared in the present circumstances to grant relief in the terms sought. The convenience of the two accountants and their staffs ought to be considered. There is no reason, as things stand, to anticipate that they would not be able to cooperate effectively to ensure that their respective tasks are efficiently carried out.
For the reasons indicated, it is not appropriate for the Court to bow to Ms Steffens' convenience by allowing her to have original documents. It is accepted that she would need to see and handle, for purposes of appropriate examination, original documents. She should be entitled, after having done that, to make copies of those she considers relevant to take away to use at her own premises at her own convenience.
I do not propose to make any orders about it, but it might well be that the accountants could produce a joint report. In principle, one would think that accountants assessing the same materials ought to be able to arrive at common conclusions about them.
The trial date is imminent. There is a risk of it becoming inappropriate if the parties are not able to get ready.
Some concern has been expressed about the potential cost of cataloguing all of the relevant documents which I am told make a pile of 22 to 25 centimetres. They consist of some books as well as loose documents.
It is possible for disclosure, which should have occurred in relation to the documents, to happen without detailed itemising of them. I do not know whether or not the security concerns of the parties will at some point lead to a list being prepared. That may well happen if events so turn out that paragraph 2 of the order I am about to make becomes operative.
This is the order:
Order pursuant to Rule 250 that the plaintiff and her agents, including Cheryl Haslam and Associates, make available from tomorrow for inspection, observation, photographing and copying * all financial records and documents of B&M Boarding Kennels and Cattery to Lynda Elaine Steffens for the purpose of her preparing an expert accounting report for use by the defendant at the trial of this action set down for 5th, 6th and 7th of December 2005.
Order that upon the filing of an affidavit of the said Lynda Elaine Steffens, sworn or affirmed on or after 21st October 2005, stating that access pursuant to paragraph 1 has been denied her so as to interfere with preparation of her report, such records and documents, or such parts of them as the affidavit identifies, be produced to the custody of the Toowoomba Registry of this Court for the purpose of affording access by her and any corresponding expert engaged by the plaintiff for purpose of preparing any report for use at the trial.
Any expert witness may be accompanied by a solicitor or other representative from the firms representing the parties in this proceeding.
Extend until 10 a.m. on 17 October 2005 the time for provision by the plaintiff of further and better particulars ordered by Judge Ryrie on the 22nd of September 2005.
Liberty to apply.
Costs reserved.
* MRS WALKER: Thank you, your Honour. Could I just clarify one matter. We were just discussing amongst ourselves, the order says that the accountant is to make available for copying. I understand that Ms Steffens has own photocopying machine and I just didn't want to get bogged down with any‑‑‑‑‑
HIS HONOUR: You don't have to copy.
MRS WALKER: We don't have to copy. Okay.
HIS HONOUR: But I think I actually said‑‑‑‑‑
MR WALKER: Make available for inspection, observation, photographing or copying.
HIS HONOUR: I think it actually specifically says "by her" but let's just see. Oh no - I will add the words "by her" Photocopying - copying by her.
MRS WALKER: "Her" referring to?
HIS HONOUR: Well, the only person referred to there is Ms Steffens. I think that is clear. Cheryl Haslam and Associates are identified as a firm there so the only "her" is Ms Steffens. But I will add those words "by her".
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