Westsand P/L v Johnson - [1999] QSC 337

SUPREME COURT OF QUEENSLAND

REGISTRY: BRISBANE
NUMBER: S 6390 of 1998

Before Justice Wilson

[Westsand P/L v Johnson]

Plaintiff: WESTSAND PTY LTD ACN (010 659 677)

Defendant: TREVOR WILLIAM JOHNSON

Reasons for Judgment: Wilson J
Delivered: 15 November 1999

CATCHWORDS:PRACTICE – DISCLOSURE – Failure to serve persons affected before service on respondent – service effective despite irregularity – direct relevance test – whether description of documents too wide and lacking in particularity – implied undertaking not to use document except forpurpose of litigation – whether other reasonably simple and inexpensive means of proof

The Compagnie Financiere et Commerciale Du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55, referred to
Central Queensland Cement Pty Ltd V Hardy [1982] 2 Qd R 509, referred to
Uniform Civil Procedure Rules, rr 5(3), 189, 223, 242-249, 371, 415.

Counsel: Mr P W Hackett (barrister) for the applicant/defendant
Mr S B Collins (solicitor) for the respondent Australia Post

Solicitors: Halliday & Stainlay for the applicant/defendant
Clarke and Kann for the respondent Australia Post

Hearing date: 29 October 1999

SUPREME COURT OF QUEENSLAND

REGISTRY: BRISBANE
NUMBER: S 6390 of 1998

Before Justice Wilson

[Westsand P/L v Johnson]

Plaintiff: WESTSAND PTY LTD ACN (010 659 677)

Defendant: TREVOR WILLIAM JOHNSON

Reasons for Judgment: Wilson J
Delivered: 15 November 1999

The applicant defendant served a notice of non-party disclosure on Australia Post (the respondent), which objected to the production of the documents sought. The applicant seeks a decision on the objection pursuant to r 247 of the Uniform Civil Procedure Rules.

The notice was served on 30 September 1999. The objection was served on 7 October 1999 and the application was filed on 14 October 1999. Thus both the objection and the application were within time (rr 245(1) and 247(1)).

The notice requires production of the following documents

1. Security/cash collection contract between Australia Post and Stephen Ganter and/or Westsand Pty Ltd ACN 010 659 677 trading as Border Security.

2. Details of all cash collection records from 1 May 1996 to date* which record details of cash collected from various Post Offices by Westsand Pty Ltd trading as Border Security and delivered to Armaguard hubsites and to Commonwealth Banks.

[*On the hearing of the application counsel for the applicant sought such records only between 1 May 1996 and 5 June 1998.]

3. All records of any meetings, correspondence or notes concerning the amounts of cash being collected and delivered by Westsand Pty Ltd trading as Border Security.

The respondent’s solicitor took the point that the notice had been served on the respondent before it was served on other persons affected by it, and that the names and addresses of such other persons were not written on the notice or any copies of it. So far as relevant the rules provide:-

“243(2) However, the applicant may serve the respondent only after the applicant has served all other persons who are required to be served under rule 244.

244(1) The applicant must, within 3 months…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Westsand P/L v Johnson

Details

AGLC: Westsand P/L v Johnson [1999] QSC 337
Case: [1999] QSC 337
Decision Date: 15 November 1999

CaseChat Overview and Summary

In the case of Westsand P/L v Johnson, the applicant, Westsand P/L, sought a declaration that service on Australia Post (the respondent) was effective, despite non-compliance with certain rules. The applicant also sought an order that the respondent produce certain documents, which Australia Post objected to on various grounds. The legal issues included whether service on the respondent was effective despite being served on other persons affected by the notice prior to the respondent, whether the documents were directly relevant to the allegations in issue, and whether the description of the documents was too wide and lacking in particularity.

The court found that although service on the respondent was not in compliance with the rules, it was still effective in this case. The court considered the other allegations in issue on the pleadings due to the apparent history of the matter and concluded that some of the documents were directly relevant to those allegations. However, the court also found that the description of some of the documents was too wide and lacking in particularity, and ordering their production would be oppressive. Therefore, the court made a declaration that service on the respondent was effective, ordered the respondent to produce the relevant contract, and set aside the notice insofar as it related to the other documents.

The court considered the merit of the objector's objections, the public interest in the efficient and informed conduct of litigation, and the public interest in not discouraging objections in good faith by those not a party to the litigation. The court found that each party had partial success in this matter and ordered that each party bear its own costs of the application.

Orders