Woods, P.G. v H & R Block Inc.

[1995] FCA 392

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG 352   of  1994
  )
GENERAL DIVISION                 )

BETWEEN:PETER GREGORY WOODS & ORS

Applicant

AND:H & R BLOCK INC & ORS

Respondent

28 April 1995

REASONS FOR JUDGMENT
LOCKHART J.
     There is before the Court today a motion by the first respondent seeking an order that the first applicants' notice to produce of 5 April 1995, addressed to the first respondent, be set aside.  The discussion that has ensued in the course of this afternoon has produced the result that the applicants are seeking by their notice to produce to have produced to the Court, and therefore available to the applicants for their inspection, documents that relate to issues tendered by paragraphs 36 and 43(a) of the amended statement of claim.

Those issues in turn, by the ambulatory provisions of paragraph 35 of the amended statement of claim, take one back to paragraphs 6 to 16 inclusive of that document, whereby the applicants seek to have access to all documents that may relate to the activities of the first respondent.  Apparently these activities involved the representing or holding out to the public that the first respondent, and indeed other
respondents, carried out activities and provided services far wider than merely the preparation of income tax returns, but extended to the giving of taxation advice, the provision of services thereto, and representations as to the activity of receiving moneys from persons for a variety of purposes.

There has been discovery in the matter, and it has been challenged by the applicants; hence they have resorted to the dispatch of a notice to produce which is annexure A to the affidavit of Mark Robert Kertrucho of 18 April 1995.  In my view, the first respondent should look again at its discovery in the light of what has been said today, and should ensure that it makes thorough search in relation to all documents that could answer the description of any of the paragraphs of the amended statement of claim, in particular those to which I have made reference:  being those to which counsel for the applicants has drawn my attention to.  A further affidavit of discovery should be filed on or before 11 May next in the light of the subsequent inquiries, which the first respondent will undertake in conjunction with its legal advisers.

Accordingly, I give that direction.  It seems to me that further discovery is the better course to follow, rather than by way of notice to produce.  As to the existing notice to produce which the first respondent seeks to have set aside, it is a document which - and I say this not intending to be unduly critical of the person who drafted it - suffers, in my view, from a lack of clarity and ambiguity as to paragraph 1 of the two paragraphs of the document, and considerable uncertainty as to paragraph 2.  In my view, the document should be set aside, and the court so orders.

I have not heard argument on costs, but as to costs, although the document is to be set aside, the discussion has at least revealed what the applicants are really seeking to obtain and what the respondents may be able to produce.  Subject to counsels' argument, the proper order for costs I propose to make is that the order for costs of the motion be that they be the first respondent's costs in the proceeding.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate

Dated:  28 April   1995

Counsel for the Applicants   :    Mr M Walton
Solicitors for the Applicants     :    Dibbs Crowther & Osborne
Counsel for the Respondents  :    Mr R J Webb
Solicitors for the Respondents:   Mallesons Stephen Jaques
Date of Hearing             :    28 April 1995
Date of Judgment            :    28 April 1995