Weston v Indigo Shire Council

[2000] VSC 87

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4029 of 2000

MICHAEL WESTON	Plaintiff
v.
THE INDIGO SHIRE COUNCIL AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 MARCH 2000
DATE OF JUDGMENT:	23 MARCH 2000
CASE MAY BE CITED AS:	WESTON v. THE INDIGO SHIRE COUNCIL & ORS.
MEDIUM NEUTRAL CITATION:	[2000] VSC 87

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CATCHWORDS:      Practice and Procedure – Non-party discovery – Rule 32.07 of the Supreme Court Rules – No evidence that documents sought to be discovered will be relevant to the proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the National Australia Bank Limited	Ms. L. Pallot	Russell Kennedy
For Gary William Edwards	Mr. F.J. Holzer

HIS HONOUR:

1. This is the return of a summons filed in the Court by the plaintiff whereby the plaintiff seeks non-party discovery from the National Australia Bank Limited (NAB) and Gary William Edwards (Edwards) pursuant to the provisions of Rule 32.07.

1. The rule reads:

"32.07  Discovery from non-party

On the application of any party to a proceeding the Court may order that a person who is not a party and in respect of whom it appears that he has or is likely to have or has had or is likely to have had in his possession any document which relates to any question in the proceeding shall make discovery to the applicant of any such document."

1. The orders the plaintiff seeks are set out in his summons the relevant paragraphs of which read:

"1.That the National Australia Bank Limited give discovery of all the documents, agreements and material in its possession relation to the Mortgage (Dealing No.V602188C) of the land known as 'Norong Park' and parts thereof title vol.6206 fol.295.

2.That Gary William Edwards give discovery of all the documents, agreements and material in his possession relation to the transfers of the land known as 'Norong Park' and parts thereof title vol.6206 fol.295."

1. The plaintiff who appears in person filed his writ in the Court on 11 January 2000.  It is yet one more proceeding in this Court or the County Court in which the plaintiff is or has been involved.

1. By his writ the plaintiff has named as defendants The Indigo Shire Council, Andrew Patrick Melville, John Winston Tilleard, Adrian Dennis Gallagher, William Robert Baxter and Anthony Denis Gillman.

1. The plaintiff's statement of claim recites the following facts:

1.        The plaintiff was the owner of a farming property near Rutherglen called "Norong Park".  The property consists of the land in Certificate of Title Volume 6206 Folio 295.

2.        In 1989 the plaintiff brought a claim against the Shire pursuant to the Drainage of Land Act 1975.  The Shire retained the second defendant Melville who is a solicitor, to act for it in relation to the claim.

3.        On 14 June 1990 the Shire and Melville retained the third defendant Tilleard who is an engineer to prepare a report on the drainage of the land for the purpose of submitting the report to the Tribunal which was to hear the plaintiff's claim.  The fourth defendant Gallagher who is also an engineer would appear to be the partner of Tilleard.

4.        Tilleard prepared the necessary report and it was submitted to the Tribunal.  Acting on the report the Tribunal dismissed the plaintiff's claim.

5.        The fifth defendant Baxter was engaged by the plaintiff to advise him in relation to his drainage claim.

6.        When the mortgagees of the property subsequently took possession of the property they retained the sixth defendant Gillman who is a real estate agent to effect a sale of the property.

1. Other facts which may be gleaned from material filed in the Court by the plaintiff are that the property was sold by the mortgagees to Edwards by a transfer dated 24 July 1998 for $670,000 and that Edwards gave NAB a mortgage over that property to secure the repayment of $865,000, the mortgage being dated 22 July 1998.  Later one portion of the property was sold to the defendant Baxter.

1. The allegations made by the plaintiff in his original statement of claim include the following.  (I refer to the statement of claim as the original statement of claim because by order of 7 March 2000 Master Wheeler ordered that paragraphs 31 to 34 of the statement of claim "be dismissed").

1.        The report prepared by Tilleard in June 1990 was false.  Tilleard and Gallagher acted fraudulently in preparing and submitting the report.

2.        The Shire and Melville acted fraudulently in relation to the report and the hearing before the Tribunal.

3.        The defendant Baxter acted fraudulently in purchasing the allotment of land he did from Edwards.

4.        The defendant Gillman effected a sale of the property to Edwards in such a way as to breach the duty of care he owed to the plaintiff.

1. The suspicion the plaintiff has is that there may also have been a conspiracy between Edwards and NAB and various of the other defendants concerning the sale of the property to Edwards.  That seems to be based on the proposition that for NAB to lend Edwards the sum of $865,000 to enable him to buy the property for $670,000 something untoward must have taken place.

1. In that situation the plaintiff maintains (and I quote) "I should be given non-party discovery so that I may ascertain the true nature of the transaction by which 'Norong Park' was transferred out of my name."

1. In Keviris Pty. Ltd. v. Capital Building Society[1] Kaye, J. pointed out that the Court should be cautious in ordering discovery from a non-party and should only do so where there is a real likelihood that the documents of which discovery are sought contain information that either will advance the applicant's case or damage or destroy the case of his adversary.

   [1](Unreported 9 February 1988)

1. From the material relied upon by the plaintiff in support of his application I am simply unable to say that that is the situation in the present case.

1. It would seem to me that the plaintiff is obsessed with what he perceives to be the wrong done to him in relation to the property and that he is simply striking out blindly in the hope that somehow or somewhere he may find material relevant to his cause.

1. That being my state of mind in the matter I consider that it would be quite wrong to make the orders the plaintiff seeks.

1. The plaintiff's summons will be dismissed.  I order that the plaintiff pay the costs of National Australia Bank Limited and Gary William Edwards of the summons on a solicitor/own client basis.

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