Wickham Point Development Pty Ltd v Commonwealth of Australia - [2020] NTSC 2

CITATION:Wickham Point Development Pty Ltd v Commonwealth of Australia and Ors [2020] NTSC 2
PARTIES:WICKHAM POINT DEVELOPMENT PTY LTD
v

COMMONWEALTH OF AUSTRALIA

AND

TREPANG SERVICES PTY LTD

AND

SERCO AUSTRALIA PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:25 of 2017 (21715635)
DELIVERED:  16 January 2020
HEARING DATES:  19 December 2019
JUDGMENT OF:  COULEHAN AJ
CATCHWORDS:

CIVIL PROCEDURE - Discovery - Further and better discovery - whether reasonable search undertaken - agency.

Supreme Court Rules, O.29.01(2), O.29.03 and O.29.08.
Gibbon v Pease [1905] 1 KB 810.
Leicestershire County Council v Michael Faraday & Partners [1941] 2 KB 205.
Lonhro Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627.
Re McGorm; Ex parte Co-Operative Building Society of South Australia [1989] 86 ALR 275.
NMFM Property Pty Ltd v Citibank Ltd [2000] 107 FCR 270.
Taylor v Santos Ltd [1998] 71 SASR 434.
Yasuda Fire & Marine Insurance Co. of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] Q.B. 174.
REPRESENTATION:
Counsel:
Plaintiff:N Christrup SC
Defendant:B Ilkovski
Solicitors:
Plaintiff:HWL Ebsworth
Defendant:Clayton Utz
First Third Party  HWL Ebsworth
Second Third Party  Ward Keller
Judgment category classification:    B
Judgment ID Number:  Cou2001
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wickham Point Development Pty Ltd v
Commonwealth of Australia & Ors
[2020] NTSC 2
No. 25 of 2017 (21715635)

BETWEEN:
WICKHAM POINT DEVELOPMENT PTY LTD

Plaintiff
AND:
COMMONWEALTH OF AUSTRALIA

Defendant
AND:
TREPANG SERVICES PTY LTD
First Third Party
AND
SERCO AUSTRALIA PTY LTD
Second Third Party

CORAM: COULEHAN AJ
REASONS FOR DECISION
(Delivered 16 January 2020)

The Defendant has applied by summons filed on 25 September 2019 for orders that the Plaintiff give further discovery of documents and/or categories of documents listed in the schedule to the summons. At the commencement of the Hearing, Counsel for the Defendant informed the Court that the application was limited to the documents mentioned in paragraph 1 of the Schedule, and paragraph 3, insofar as it related to emails and documents created or received by Nick Paspaley, including those within the email account [email protected].
The application in respect of paragraph 1 was not specifically abandoned, but no oral submissions were directed to this part of the application, and Counsel for the Plaintiff said, without being contradicted, that this part of the application would be dealt with by the parties, without the need for the Court to make any orders. It appears that this part of the application was not intended to proceed, for the time being at least.
O.29.03 of the Supreme Court Rules requires that each party make and deliver to the other party a list of the documents which are or have been in its possession relating to a matter in question between them in the proceeding. O.29.01(2) provides that "Possession" means possession, custody and power.[1] "Power" has been held to mean a presently enforceable legal right to inspection.[2]
A party is required to make proper enquiries to identify and disclose all relevant documents that are not in its possession, including making reasonable enquiries of a person who has possession of the documents.[3]
The parties have provided mutual discovery by exchanging electronic lists of documents and providing copies pursuant to an agreed Documents Management Protocol. The Defendant's application challenges the adequacy of the Plaintiff's discovery of documents. It is provided in O.29.08 that where there are grounds for belief that a document or class of documents relating to a question in the proceeding may be in the possession of a party the Court may order that party to make an affidavit stating what document or documents may be, or may have been, in its possession.[4]
This application is based on the alleged failure of the Plaintiff to search Mr. Paspaley's email account for relevant documents. It was argued that the Plaintiff had the right to do so because Mr. Paspaley was an agent of the Plaintiff.
Mr. Paspaley was at relevant times a shareholder in the Plaintiff and, between 22 February 2011 and 28 February 2011, he was a director. There is evidence, derived from documents discovered by the Plaintiff that suggests that he was involved in the business of the Plaintiff after ceasing to become a director. He provided budget projections for the Wickham Point development to the Commonwealth Bank and was sent documents relating to a temporary overdraft facility provided by the Bank to the Plaintiff. He was also the recipient of documentation relating to taxation strategies and was active in making representations in relation to a proposed extension of the lease the subject of this proceeding.
In response to this application the solicitor for the Plaintiff has deposed that:
10. I am instructed and on that basis believe that WPD's enquiries with Nick Paspaley (both in the course of discovery and more recently in response to the Commonwealth's Summons dated 25 September 2019) that:
10.1 Nick Paspaley does not have any documents relevant to these proceedings dated between 22 to 28 February 2011;
10.2 Nick Paspaley does not have any documents relevant to these proceedings at all, other than the letter to the Prime Minister dated 7 November 2011 referred to in my fifth affidavit.
This evidence is based on information and belief and arguably does not adequately state the grounds for the belief. However, there was no objection to its admissibility, and its meaning is clear enough. The evidence is also factually incorrect because other documents in the possession of Mr. Paspaley have been discovered. This is an obvious error on the part of the Plaintiff's solicitor and it does not affect the general tenor of his evidence. Counsel for the Plaintiff said that the Plaintiff would provide a further affidavit to correct this error, if required.
The Plaintiff's solicitor also deposed that the domain name "paspaley.com.au" is owned by Paspaley Pearling Company Pty Limited and he is unaware of any presently enforceable right in the Plaintiff to compel that company or Mr. Paspaley to provide access to this email account.
This evidence suggests that the Plaintiff has not searched Mr. Paspaley's email account. The question posed by the Defendant is whether the Plaintiff has a legally enforceable right to do so.
In considering the role of Mr. Paspaley, it is necessary to consider the basis for the allegation that he acted as the Plaintiff's agent. The notion of agency involves a person, the agent, being conferred with authority to act in a representative capacity for another person, the principal.[5] While there is no evidence of authority being conferred on Mr. Paspaley, his status as a shareholder and his involvement in the Plaintiff's affairs suggest that he had an implied authority to provide financial information to the Commonwealth Bank on behalf of the Plaintiff in order to assist it in obtaining finance.
The general rule is that documents brought into existence by an agent in the course of the agency are the principal’s documents and the principal can require the agent to deliver them up.[6] The right of the principal to be provided with records is said to arise by reason of the fact that the agent has been entrusted with the authority to bind the principal to transactions with third parties, so that the principal is entitled to know what his personal contractual rights and duties are in relation to those third parties.[7] In this case there is no evidence that suggests that Mr. Paspaley had authority to bind the Plaintiff in respect of its relationship with third parties. Even if such was the case, this would not necessarily lead to the conclusion that the Plaintiff had a legally enforceable right to inspect Mr. Paspaley’s email account.
The low number of emails that appear to have come into existence independently of copied emails, as referred to in the affidavit of Ms. Clark, is not persuasive evidence that suggests that there remain documents to be disclosed contrary to the evidence of the Plaintiff’s solicitor.
The Plaintiff discovered documents created from the email accounts of Mr. Paspaley and his personal assistant and there has been no explanation as to how these had come into the possession of the Plaintiff. It was argued that, in the absence of an explanation, the Court may infer that the Plaintiff had access to these accounts. However, there is no requirement that the Plaintiff explain how the documents came into its possession and it is possible that they were provided following the enquiries said to have been made of Mr. Paspaley.
It was also pointed out that the Plaintiff had claimed legal professional privilege for documents created or received by Mr. Paspaley. It was argued that this suggested a common interest in the documents and is evidence that reinforces the agency claim and demonstrates the inadequacy of the Plaintiff's discovery. The privilege claim is one that may be made by the Plaintiff, assuming it to be valid, and it does not necessarily involve any interest that Mr. Paspaley may have in the documents. It does not otherwise demonstrate any inadequacy in the Plaintiff's discovery.
On the available evidence Mr. Paspaley's role as an agent of the Plaintiff was limited, and there is no reason to conclude that the Plaintiff had or has a presently enforceable legal right to inspect Mr. Paspaley's email account. The Plaintiff was required to make proper enquiries as to any documents that may be, or may have been, in Mr. Paspaley's possession relating to a matter in question between the parties in this proceeding. The evidence of the Plaintiff's solicitor is to the effect that proper enquiries have been made.
The application for further discovery of emails and documents created or received by Nick Paspaley is dismissed.

[1] Supreme Court Rules, O.29.03 and O.29.01(2).

[2] Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627, 635; Taylor v Santos Ltd [1998] 71 SASR 434.

[3] Re McGorm; Ex parte Co-Operative Building Society of South Australia [1989] 86 ALR 275, 278.

[4] Supreme Court Rules, O.29.08.

[5] See, NMFM Property Pty Ltd v Citibank Ltd [2000] 107 FLR 270 at [522].

[6] See, Gibbon v Pease [1905] 1 KB 810; Leicestershire County Council v Michael Faraday and Partners [1941] 2 KB 205, 216.

[7] See, Yasuda Fire & Marine Insurance Co. of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] Q.B. 174, 185.