Fortron Automotive Treatments Pty Ltd v Jones (No 3) [2007] FCA 1259 (17 August 2007)

Last Updated: 6 September 2007

FEDERAL COURT OF AUSTRALIA

Fortron Automotive Treatments Pty Ltd v Jones (No 3) [2007] FCA 1259

PRACTICE AND PROCEDURE – particular discovery – O 15 r 8 – criteria for application – rulings as to additional discovery





Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 cited












FORTRON AUTOMOTIVE TREATMENTS PTY LTD v KENNETH JOHN JONES, TREBLEX AUTOMOTIVE PRODUCTS PTY LTD, SHEILA MARY JONES, WILLIAM PATRICK TULLY, HELEN GEORGINA TULLY AND GAMMAR GROUPS (THAILAND) CO LTD
WAD380 OF 2005



FRENCH J
17 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD380 OF 2005

BETWEEN:	FORTRON AUTOMOTIVE TREATMENTS PTY LTD Applicant
AND:	KENNETH JOHN JONES First Respondent TREBLEX AUTOMOTIVE PRODUCTS PTY LTD Second Respondent SHEILA MARY JONES Third Respondent WILLIAM PATRICK TULLY Fourth Respondent HELEN GEORGINA TULLY Fifth Respondent GAMMAR GROUPS (THAILAND) CO LTD Sixth Respondent

JUDGE:	FRENCH J
DATE OF ORDER:	17 AUGUST 2007
WHERE MADE:	SYDNEY

ON THE APPLICANT’S ADJOURNED MOTION FILED 28 JUNE 2007 THE COURT ORDERS THAT:

1. The first, second, fourth and fifth respondents do, by Friday 31 August 2007, each file and serve on the applicant an affidavit stating whether the following documents or classes of documents are or have been in his or its possession, custody or power and, if any of them have been but are not now in his or its possession, custody or power, when he or it parted with them and what has become of them.

As to the first respondent:

1(a) All documentation "picked up" by Mr Jones from Gold Leaf Australia referred to in Donna Matthews’ file note of 11 November 2003.

1(c) Copies of the labels that were proof-read at the meeting of 1 March 2004 that were delivered to Mr Jones’ hotel room referred to in bundle of trip reports.

As to the second respondent:

2(a) All documents evidencing the purchase and/or payment by the second respondent for product labels for the sale of automotive product exported by the second respondent to the sixth respondent and/or Gold Leaf Products Co Ltd for the period 12 February 2004 to 31 January 2005.

2(d) Bills of Lading relating to shipments by the second respondent to the sixth respondent and Gold Leaf Products Co Ltd, the subject of the following invoice numbers of the second respondent: EX1002, 1005, 1006, 1007, 1010, 1011, 1012, 1015, 1018, 2001, 2002, 2006a, 2007, 2008, 2010, 2011, 2012, 2015, 2015a, 2017.

2(f) Copies of the labels that were proof-read at the meeting of 1 March 2004 that were delivered to Mr Jones’ hotel room referred to in the bundle of trip reports.

2(l) All supporting documents lodged with Austrade in relation to the sales commission of $6,571.94 claimed by the second respondent from "Gammar Groups – Parnu Changlor" on the second respondent’s tax invoice number 2003 dated 7 April 2004 evidencing:

(i) the second respondent’s contractual entitlement to such commission;

(ii) the nature and quantity of products sold to earn the commission; and

(iii) the date of the sales.

As to the fourth respondent:

3(a) All documentation evidencing communications between the fourth respondent and the Honourable M Washer MP in relation to the fourth respondent’s allegations of under funding by Fortron Insurance Group Ltd.

3(b) All documentation evidencing communications between the fourth respondent and the Commonwealth Department of Finance in relation to the fourth respondent’s allegations of under funding by Fortron Insurance Group Ltd.

3(e) Copies of all documentation evidencing benefits received by the fourth respondent from either the second respondent or from any third party on behalf of the second respondent during the period October 2003 to 30 June 2005 whether in the nature of dividends, salary or wages including:

(i) all financial institution cheque accounts;

(ii) all financial institution savings accounts; and

(iii) all financial institution credit card accounts.

As to the fifth respondent:

4(a) all bank statements of Challenge (now Westpac) Bank account 736 226 555190 in the name of Helen Georgina Tully for the period 1 October 2004 to 30 June 2005.

2. The costs of the applicant’s motion so far as it relates to particular discovery will be in the cause.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD380 OF 2005

BETWEEN:	FORTRON AUTOMOTIVE TREATMENTS PTY LTD Applicant
AND:	KENNETH JOHN JONES First Respondent TREBLEX AUTOMOTIVE PRODUCTS PTY LTD Second Respondent SHEILA MARY JONES Third Respondent WILLIAM PATRICK TULLY Fourth Respondent HELEN GEORGINA TULLY Fifth Respondent GAMMAR GROUPS (THAILAND) CO LTD Sixth Respondent

JUDGE:	FRENCH J
DATE:	17 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR RULING ON MOTION FOR PARTICULAR DISCOVERY AND OTHER ORDERS

1 On 30 March 2006 Lee J ordered that the applicants and the then first to eighth respondents give discovery on oath by 28 April 2006. On 11 May 2006 the first respondent gave discovery on behalf of himself and the second to fifth respondents.

2 On 7 May 2007 the applicant’s solicitors wrote to the solicitors for the first to fifth respondents asking that they swear a separate affidavit of discovery. They also sought discovery of particular Austrade documents, copies of which had already been provided informally. The respondents’ solicitors declined to comply. However, by a letter dated 22 May 2007 they enclosed a document entitled "Fourth Respondent’s Further List of Documents".

3 The solicitors for the applicant complained that they did not know which of the documents referred to in the respondents’ discovery list related to which respondent. Nor did they know whether the fourth respondent’s further list of documents were additional documents in the possession of the fourth respondent over and above the documents set out in the earlier affidavit sworn on behalf of all respondents. By their letter dated 22 May 2007 the applicant’s solicitor sought particular discovery of various documents. The solicitors for the respondents replied on 1 June 2007 rejecting the request in various of the classes of specified documents and conceding others.

4 On 28 June 2007 the applicant filed a motion seeking discovery by each of the first, second, fourth and fifth respondents separately and particular discovery of specified documents or classes of documents. They also sought leave to further amend the statement of claim.

5 On 10 July 2007 I made orders on the motion giving leave to the applicant to amend its statement of claim in terms of the minute filed with the motion and giving the respondents leave to file amended defences by 31 July 2007. Directions were made for the filing of written submissions on the motion for particular discovery and the matter otherwise adjourned and set down for decision on 8 August 2007. The adjourned directions hearing was subsequently relisted until today.

6 I have considered the written submissions and the affidavits filed by the parties in relation to the motion for particular discovery. Certain of the documents or classes of documents, discovery of which is sought in the motion, have been discovered. These are the documents mentioned in paragraphs 1(b), 2(c), 2(g), 2(h), 2(k)(iii), 2(k)(iv), 2(k)(v), 2(k)(vi) and 2(k)(vii), and 2(m). The other documents for which discovery is sought are the subject of specific justification in the applicant’s submissions and supporting affidavits. They are met by generic opposition from the respondents.

7 I make the following rulings in relation to each of the documents or classes of documents sought by the applicant having regard to the provisions of O 15 r 8. I accept that the language of the Rule allows that additional discovery may be ordered on the basis that it may lead to a train of inquiry: Spyer v Cuddles ‘N’ Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563. It is not appropriate, as a matter of routine, to require a wider range of discovery under O 15 r 8. In this respect I do not accept that additional discovery under the so-called Peruvian Guano test is routinely available. By that I refer to the test mentioned in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55.

8 The rulings which follow refer to the classes of documents in relation to which discovery has not been given. They are as follows:
Paragraph in the Motion Ruling
1(a) Discovery allowed.
1(c) Discovery allowed.

1(d) Discovery declined – chain of inquiry justification insufficient.

1(e) Discovery declined – class of documents not defined by reference to relevance. Chain of inquiry insufficient.

2(a) Discovery allowed, limited to documents evidencing the purchase and/or payment by the second respondent for product labels for the sale of automotive products exported by the second respondent to the sixth respondent and/or Gold Leaf Products Co Ltd for the period 12 February 2004 to 31 January 2005.

2(b) Discovery declined – relevance not established.

2(d) Discovery allowed.

2(e) Discovery declined – relevance not established.

2(f) Discovery allowed, limited to labels proof read at the meeting of 1 March 2004.

2(i) Discovery declined – class not defined by reference to criteria of relevance.

2(j) Discovery declined – class not defined by reference to criteria of relevance.

2(k)(i), (ii), (viii) to (xi) Discovery declined, relevance not established.

2(l) Discovery allowed.

2(n) Discovery declined – claim not defined by criteria of relevance.

3(a) Discovery allowed.

3(b) Discovery allowed.

3(c) Discovery declined.

3(d) Discovery declined.

3(e) Discovery allowed.

4(a) Discovery allowed.

9 I will make orders to give effect to these rulings. I will not direct that the respondents revisit their earlier discovery with separate affidavits. The costs of the motion so far as it related to particular discovery will be costs in the cause.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated: 17 August 2007

Counsel for the Applicant:	Mr G Rabe
Solicitor for the Applicant:	Stables Scott
Counsel for the Respondent:	Mr R Grayden
Solicitor for the Respondent:	Hammond Worthington
Dates of Submissions:	23 and 31 July 2007
Date of Judgment:	17 August 2007