Western Power Corporation v Normandy Power Pty Ltd
[2002] WASC 113
WESTERN POWER CORPORATION -v- NORMANDY POWER PTY LTD [2002] WASC 113
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 113 | |
| Case No: | CIV:2577/2000 | 28 MARCH 2002 | |
| Coram: | McKECHNIE J | 16/05/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed Costs order varied | ||
| B | |||
| PDF Version |
| Parties: | WESTERN POWER CORPORATION (ABN 38 362 983 875) NORMANDY POWER PTY LTD (ABN 85 065 116 841) |
Catchwords: | Courts and Judges Jurisdiction to vary perfected orders Order dismissing application for further discovery Order made on basis of wrong facts Costs consequent on order of dismissal Whether costs order should be varied |
Legislation: | Nil |
Case References: | Ansons Pty Ltd v Merlex Corporation Pty Ltd [2001] WASC 204 DLJ v Central Authority (2000) 201 CLR 226; [2000] 8 HCA 17 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 John Allan Ltd v Keegan (1968) WAR 125 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
NORMANDY POWER PTY LTD (ABN 85 065 116 841)
Defendant
Catchwords:
Courts and Judges - Jurisdiction to vary perfected orders - Order dismissing application for further discovery - Order made on basis of wrong facts - Costs consequent on order of dismissal - Whether costs order should be varied
Legislation:
Nil
Result:
Application allowed
Costs order varied
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr P D Evans
Defendant : Mr M D Howard
Solicitors:
Plaintiff : Freehills
Defendant : Pullinger Readhead Stewart
Case(s) referred to in judgment(s):
Ansons Pty Ltd v Merlex Corporation Pty Ltd [2001] WASC 204
DLJ v Central Authority (2000) 201 CLR 226; [2000] 8 HCA 17
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
John Allan Ltd v Keegan (1968) WAR 125
Case(s) also cited:
Nil
(Page 3)
1 McKECHNIE J: This was an expedited action, subject to interlocutory rulings from time to time.
2 The trial of preliminary issues was heard by me on 23, 24, 25 and 26 July 2001 and a judgment in favour of the plaintiff (Western Power Corporation) was delivered on 1 August 2001.
3 Subsequently, the parties have been in discussion in relation to the proper orders which should be made consequent upon the judgment and the proper costs disposition.
4 Because agreement was unable to be reached on some things, I heard further argument on 28 March 2002, following which I made certain orders disposing of the action and costs orders in favour of Western Power Corporation.
5 Normandy Power Pty Ltd sought a specific costs order as follows:
"2. The costs order relating to the defendant by action summons of 16 July 2001 for further and better discovery be vacated and in lieu of that order the plaintiff by action be ordered to pay the costs of the defendant by action of that summons to be agreed or in default thereof taxed including a direction to the taxing officer to make specific allowance for the preparation and attendance of senior counsel."
6 This related to an interlocutory order made by Murray J shortly before trial.
7 Because Mr Howard, who appeared for Normandy Power Pty Ltd was unaware that the order of Murray J had been perfected by being entered and extracted, I allowed the parties to file written submissions. This is my determination in respect of the issue based on the arguments and the written submissions.
8 The course of the action from the issue of the writ until trial of preliminary issues may be described as a work in progress. There were a number of amendments to pleadings on all sides and discovery was ongoing. Discovery was voluminous.
9 Shortly before trial, Normandy Power Pty Ltd sought to amend its defence and counterclaim and also sought supplementary discovery, by the summons of 16 July 2001 referred to above.
(Page 4)
10 On 17 July 2001, Murray J made an order for supplementary discovery against the second defendant by counterclaim, the State of Western Australia. The result of that discovery appears to have been the reason for an application by Normandy Power Pty Ltd for supplementary discovery against Western Power Corporation. This order was dismissed with costs by Murray J on 18 July 2001, although he did grant Normandy Power Pty Ltd leave to amend the claim and counterclaim. It is the dismissal with costs of the application for supplementary discovery which Normandy Power Pty Ltd seeks to vary.
11 The jurisdiction which Normandy Power Pty Ltd invokes to vary the orders made by Murray J arises in Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400. Malcolm CJ said at p 407:
"The jurisdiction to add to or vary a judgment which has been delivered and which has been perfected by formal judgment being entered and extracted in the court is an unusual one. The jurisdiction, of course, exists quite apart from the slip rule in O 21 r 10 the court has an inherent jurisdiction to rectify situations which may perpetuate an injustice to litigants."
12 I accept that statement of the law as founding jurisdiction. I do not understand the recent decision in DLJ v Central Authority (2000) 201 CLR 226; [2000] 8 HCA 17 to be authority to the contrary. That case was concerned with the specific power of a statutory court of appeal, not the inherent power of a Supreme Court.
13 The factual basis upon which Normandy Power Pty Ltd seeks variation of Murray J's order, arises from an affidavit of Mark Hands sworn 9 October 2001. Mr Hands is the in-house legal counsel for Western Power Corporation. He deposed as to extensive efforts made by him to gather together the documents relevant for discovery, both in these proceedings and in Federal Court proceedings.
14 He deposed to knowledge of the order for amending the particulars of par 13(b) of the defence and counterclaim, to which I have referred, and then further deposed, at par 32:
"Having regard to the nature of the documents sought by the defendant in their application, the nature of the allegations made by the defendant in their defence and the extensive enquiries of documents relating to the class of documents sought by the defendant in their application it was my belief that there were no further documents relevant to that issue in the possession,
(Page 5)
- custody or power of the plaintiff. Accordingly, I instructed Freehills to oppose the application on behalf of the plaintiff."
15 Mr Hands then deposed that he was in court on 23, 24, 25 and 26 July 2001 and that:
"34 … As a consequence of conversations I had with senior counsel representing the plaintiff, junior counsel representing the plaintiff and solicitors from Freehills it became apparent to me that some of the documents upon which the defendants sought to rely in support of its amended particulars and further particulars under paragraph 13(b) of the defence, being documents discovered by the second defendant by counterclaim, did not provide a complete history of the exchange of correspondence between the plaintiff, the Office of Energy and the Minister in December 1995 and January 1996 concerning the drafting of the cabinet summary sheet in January 1996.
35. Prior to the trial it was not apparent to me that documents relating to the Minister for Energy submission to Cabinet were or could be regarded as relevant to the matters pleaded in par 13(b) of the defence and counterclaim, as particularised prior to 19 July 2001."
16 He then deposed that he made further inquiries and located two files. Subsequently, even more extensive inquiries were made in the course of which some relevant documentation was identified which had not previously been discovered by Western Power Corporation.
17 Accepting that there is jurisdiction to vary the order made by Murray J in order to prevent injustice, it is nevertheless likely to be a rare or exceptional case that a court will so intervene.
18 In Ansons Pty Ltd v Merlex Corporation Pty Ltd [2001] WASC 204, Master Sanderson conducted a comprehensive analysis of the cases which bear on the question before setting out the principles based on the authorities to which he referred. Those principles from the judgment at par 49 are as follows:
"1. There is power to vary or discharge a perfected or entered order.
(Page 6)
- 2. The power should be exercised with care and only in the most unusual circumstances.
3. If the perfected order has continuing operation and there is a change in the underlying circumstances which applied when the order was made, then the order can be varied or discharged to take account of those changed circumstances.
4. In a circumstance where the substratum of fact or law underpinning the order has changed, the perfected order can be discharged or varied by a single Judge.
5. The fact that the perfected order in question was made by consent and pursuant to an agreement between the parties does not in any way affect the power of the Court to vary or discharge the order."
19 I acknowledge the assistance I have received from this judgment and I accept the statement of principles quoted as correct.
20 As might be expected, having regard to the fact that this action was in the expedited list and the trial was commencing but a few days hence, Murray J gave only brief reasons for his decision.
21 He said:
"It is appropriate in relation to this matter to touch base in relation to what has to be demonstrated having regard to John Allan v Keegan and the observations of the chief justice at 127, and in particular Virtue J at 128, and the degree of certainty which must attend a successful application for supplementary discovery. It seems to me that it's very adequately expressed in the short observation by Parker J in the Alba Nominees case that the court must be satisfied that there are reasonable grounds for being fairly certain that there are relevant documents that have not been discovered.
There are a number of matters that bear upon that and I think it is right to have regard to the fact that the documents in respect of which further discovery is sought would have to be documents which in particular bear upon the electricity distribution access order, its formulation and the terms of its
(Page 7)
- creation in respect of the matters to which attention is focused by paragraph 13.
The additional document under the letterhead of Mallesons in respect of which it has been discovered and in respect of which privilege is claimed by the plaintiff seems to me not by itself to carry one very far in that regard. There is certainly the reference to consultation at the foot of the document on page 23 and otherwise I think one is drawn only to rely upon the terms of paragraph 23 of Mr Hicks' affidavit and the process of reasoning which that exposes.
That is to be dealt with in the context, I think, of the fact that the terms upon which discovery is given have been referred to in correspondence and those exhibits annexed to the affidavit of Mr Hicks which provide the indication that so far as any document is relevant or may lead to the chain of inquiry on the relevant issue they have been discovered and, further and perhaps more specifically, that statement is made in the letter which appears at pages 54 to 55 against the background of the correspondence which refers to what the content is of classes A, B, C and D in the facsimile letter dated 3 July 2001 on behalf of the defendant.
In short, Mr Hicks' affidavit has I think to be read against the background that it contains within it the assertions on behalf of the plaintiff that upon a more broad view of the obligation of discovery than would focus entirely upon the process, discovery by the plaintiff has been provided.
The fact that records exist and discovery has been accepted to be required on behalf of the crown under paragraphs 1(b) and (c) do not seem to me to take the matter far either, so at the end of the day upon the basis of that evidence I must ask myself the question whether the ground for the making of an order for supplementary discovery exists.
It seems to me that I may not reach the level of persuasion that the authorities refer to. The reason why it was put in those tight terms is obvious enough and it is important, I think, that one should have regard and one should bear in mind where the onus lies in establishing the grounding for the making of an order of this kind. I am not satisfied that the grounds exist which would
(Page 8)
- enable me to make the order against the plaintiff which is sought in paragraphs 1(b) and (c) of the summons."
22 The letter referred to in the course of his reasons by Murray J was a letter of December 2001 from Western Power Corporation's solicitor, Freehills, to Normandy Pty Ltd's solicitor. In that letter the author said:
"…Our client does not quarrel with the proposition that documents in classes a, b, c and d identified on page 3 of your facsimile letter dated the 3rd of July 2001, to the extent that those documents are relevant to the issues on the pleading, are discoverable. The point is, to the extent that such documents are relevant to the matters in issue on the pleadings they have been discovered. There is simply no basis for your allegation that our client has failed to give proper discovery of documents relevant to the matters in issue."
23 It appears to me that the decision of Murray J was significantly based on the fact that discovery had been provided.
24 Murray J relied upon statements of principle in John Allan Ltd v Keegan (1968) WAR 125. At 127 Wolff CJ said:
"My understanding is that once the plaintiff has made an affidavit swearing to the particulars required by the rules, no further discovery should be ordered unless it is patently clear that some particular document which might be material to the issues is in the hands of the party ordered to give discovery and has not been disclosed."
25 Virtue J said at 128:
"The English authorities under O 31 r 12 of the Supreme Court Rules, the rule corresponding with s 66 of the Local Courts Act 1904-1964, make it clear that no order for further discovery of documents will be made where the question of insufficiency is a matter of controversy between the parties on the affidavits. It is only where from admissions on the pleadings or otherwise by the party from whom the further discovery is sought or from the affidavit of documents or the documents disclosed it is made manifest that relevant documents are in the possession of the party concerned that further discovery may be ordered under the provisions of the section."
(Page 9)
26 It is important to recognise that while the jurisdiction to set aside a perfected order exists, the Judge who is asked to set aside the order of another Judge or a Master is not sitting on appeal against the decision.
27 In the present case, the matters I have set out show that:
1. The plaintiff (Western Power Corporation) thought it had discovered all matters relevant to the issues in question and stated so in an affidavit and in a letter.
2. Murray J took account of this statement in forming his judgment.
3. The statement, as it turned out, was wrong.
4. Murray J was not able to be persuaded to the degree of certainty necessary that there were relevant documents which had not been discovered.
28 I consider that the case comes within principle No 4 articulated by Master Sanderson namely the substratum of fact underpinning the order has changed.
29 The question then is whether the court should intervene to rectify a situation which may perpetuate an injustice to litigants.
30 This is one of the exceptional cases where the court should so intervene. The affidavit of Mr Hands of 9 October 2001 makes it clear that in the discovery process, and particularly in relation to the application for discovery of 18 July 2001, he had a view of relevance and an understanding of the existence of documents which was not accurate. On that basis, he had understood that all relevant documents had been discovered. This proved not to be the case. There is of course no suggestion of any deliberate or wrongful action on his part. He simply was in error. This error affected the way counsel for Western Power Corporation opposed the application for further discovery, and because Murray J expressly referred to it in his reasons, this affected his decision.
31 Discovery has now been given so varying the substantive order made by Murray J would be pointless. In the circumstances, I consider the interests of justice require me to set aside the costs order made on that day and order instead that Western Power Corporation pay the costs of Normandy Power Pty Ltd of the application for further discovery to be agreed or in default taxed. There is specific allowance for senior counsel.
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