Dense Medium Separation Powders Pty Limited trading as DMS Powders v Gondwana Chemicals Pty Ltd & Anor [2010] NSWSC 1309 (8 October 2010)

Last Updated: 15 November 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Dense Medium Separation Powders Pty Limited trading as DMS Powders v Gondwana Chemicals Pty Ltd & Anor [2010] NSWSC 1309


JURISDICTION:
Equity Division
Commercial List

FILE NUMBER(S):
2010/59719

HEARING DATE(S):
8 October 2010


EX TEMPORE DATE:
8 October 2010

PARTIES:
Dense Medium Separation Powders Pty Limited trading as DMS Powders (plaintiff)
Gondwana Chemicals Pty Limited (first defendant)
David Maxwell Willetts (second defendant)

JUDGMENT OF:
Brereton J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
V Simpkins SC w V McWilliam (plaintiff)
A Cheshire (defendants)


SOLICITORS:
PricewaterhouseCoopers (plaintiff)
Colin Biggers & Paisley (defendants)


CATCHWORDS:
PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Amendment – whether plaintiff should be granted to leave to further amend its list statement –
PROCEDURE – Discovery and interrogatories – Discovery and inspection of documents – whether defendants should be ordered to give further discovery – PROCEDURE – Pleading – Particulars – whether further and better particulars should be provided

LEGISLATION CITED:


CATEGORY:
Procedural and other rulings

CASES CITED:
Kent Coal Concessions Limited v Duguid [1910] AC 452.
Martell v Victorian Coal Miners’ Association (1903) 9 ALR 231
Pendlebury v O'Neill (1911) 11 SR (NSW) 188

TEXTS CITED:


DECISION:
Grant leave to the plaintiff to further amend its list statement. No order for further discovery made.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST


BRERETON J

Friday, 8 October 2010

2010/59719 Dense Medium Separation Powders Pty Limited t/as DMS Powders v Gondwana Chemicals Pty Limited & Anor

JUDGMENT (ex tempore)

1 HIS HONOUR: Before the court are two notices of motion, one filed by the defendant on 27 September 2010, and the other filed by the plaintiff on 28 September 2010.

2 It is convenient to deal with the plaintiff's motion first, although some aspects of it overlap with issues which arise on the defendants' motion.

Release for undertakings:

3 The plaintiff first sought an order that its solicitors and counsel be released from their undertakings given to the court on 3 September 2010 in respect of documents produced on subpoena by Marsh Pty Limited. It was indicated that this was uncontroversial and I have already, by consent, made an order to that effect.

4 By claims 4 and 5 in its motion, the plaintiff sought leave to consider and use documents discovered by the defendants, and produced on subpoena in the proceedings (including by Marsh Pty Limited) for the purpose, if seen fit, of joining a third party and any company associated with that third party, as an additional defendant or defendants. It is doubtful whether such leave is required, and the defendants' position was that it was not; but there was no controversy that the plaintiff should be permitted to use those documents in the manner for which it sought to be permitted, and in those circumstances, insofar as leave was required and for more abundant caution, I have already made orders 4 and 5 in the plaintiff's motion.

Further and better discovery:

5 Claim 2 in the plaintiff's motion is for an order that the defendants give further discovery on or before 29 October 2010 of documents relevant to a fact in issue relating to paragraphs 8A and 18(b) of the further amended list statement. Involved in that claim is a proposed further amendment to paragraph 8A of the further amended commercial list statement.

6 The defendants did not oppose an order for further discovery in respect of the matters raised by paragraph 18(d) of the further amended list statement. The opposition, so far as paragraph 8A was concerned, was intertwined with the opposition to the proposed amendment. In turn, the opposition to the proposed amendment was intertwined with a contention that the relevant paragraph of the list statement had not yet been sufficiently particularised.

7 In due course, I will deal with the question of particularisation, which will in turn resolve the question of the amendment, and I propose to allow therefore the amendments which the plaintiff seeks to make. Accordingly, I will make the order for further discovery contained in paragraph 2.

8 I make an order in accordance with paragraph 2 of the plaintiff's motion filed 28 September 2010.

9 Paragraph 3 was in the alternative to paragraph 2 and, having addressed paragraph 2, it is unnecessary to proceed to paragraph 3.

Amendment:

10 The remaining claim in the plaintiff's motion was, as I have foreshadowed, that in paragraph 6, for leave to file and serve a further amended commercial list statement, adding to paragraph 8A after the word "import" the additional words "and/or knowingly concerned and/or involved in the importation". The evidence on the application discloses that there is a sufficiently arguable case to found the amendment. As I have foreshadowed, the opposition to the amendment – which implicitly if not explicitly accepted that, once the claim was properly particularised, it would be permitted – focused on the sufficiency of the particularisation. As I have said, I shall come to the particularisation in due course. If I find that the allegation is sufficiently particularised, then there is no apparent basis for resisting the proposed amendment. If I find that it is insufficiently particularised, I will make orders for further and better particulars that will address any defect, so as to permit the amendment.

11 In those circumstances it seems to me to appropriate to allow the amendment to paragraph 8A, and the additional consequential amendments proposed.

12 Accordingly, I grant leave to the plaintiff to further amend its list statement by filing and serving a further amended list statement containing the following amendments:

(a) inserting in paragraph C8 after the word "imported", the additional words "and/or been knowingly concerned and/or involved in the importation";

(b) inserting in paragraph C8A after the word "import" the additional words "and/or knowingly concerned and/or involved in the importation";

(c) in paragraph 17, deleting the word "and" where it currently appears and substituting a comma, and inserting after the matter [8], the additional matter "and [8A]",

(d) in paragraph 19, deleting the word "first" and changing "defendant's" to "defendants'".

Summary dismissal:

13 I turn then to the defendants' notice of motion. Although that motion sought – perhaps in desperation, given previous unsuccessful attempts to procure service of the plaintiff's evidence – an order that the proceedings be dismissed, that was not pressed in the light of the recent, if late, service of what transpired to be part only of the plaintiff's overdue evidence-in-chief. Alternatively, a "peremptory order" for the plaintiff to serve its evidence was sought. I have already made an order that the plaintiff not be entitled to rely at the hearing on any witness statement that has not been served by 22 October 2010.

Separate determination:

14 The next issue convenient to be dealt with at this stage is claim 5, which seeks an order that the determination and quantification of any loss or damage suffered by the plaintiff and the taking of any account of profits be determined, if at all, after a separate determination of the remaining issues in the case. The plaintiff's position was that it was premature to make this order; but at the same time, the plaintiff opposed giving discovery of two categories of documents identified by the defendant as relevant to questions of quantification – and in my (provisional) view plainly relevant to those issues – but extensive in volume. It seems to me that a decision does need to be made as to whether the parties are going to adduce evidence now and give discovery now on issues of quantum, or whether that is something that can be deferred. For that reason, I do not think it can be said that determination of this issue at this stage is premature.

15 At first sight, it seems that there will be little, if any, overlap between issues liability and quantum. On liability the issues will be, first, whether there was an exclusive agency agreement in force of the type for which the plaintiff contends and, secondly, whether, in breach of obligations under or arising in connection with that agreement, the defendants have in effect appropriated to themselves or assisted others to appropriate to themselves commercial opportunities which they ought to have exploited, if at all, for the benefit of the plaintiff.

16 If the plaintiff succeeds on liability – which is very much in dispute on the pleadings, and, it would appear, will be in dispute on the evidence – there will then be an issue as to the plaintiff's remedy. The plaintiff currently claims damages or profits, and ultimately will have to elect between damages and profits. It would appear that one of the issues, at least on damages, will be whether the plaintiff itself had the capacity to exploit the opportunities which it alleges were instead exploited by the defendants. That may involve a substantial inquiry – one which will not arise, as I see it, on the issue of liability.

17 The plaintiff has raised objection to the volume of accounting material which the defendants are seeking by way of discovery. That material will not be relevant at all to the case on liability. The plaintiff has also indicated that, though the lay evidence served to this point does not address questions of quantum and it seems unlikely that the remaining lay evidence to be served will do so, that quantum will be addressed by expert evidence. If, ultimately, the defendants succeed on liability, all that will be unnecessary.

18 While it is true that there is always a risk of inconsistent findings arising from determination of separate questions, that is much less so when there is simply an inquiry as to damages or an account of profits consequent upon a full determination of the liability issues, in respect of which the judicial officer taking the account or conducting the inquiry relies also on the evidence in the substantive proceedings and the judgment in the substantive proceedings. The risk is even less so if the inquiry is conducted before the same judicial officer as conducts the substantive hearing on liability.

19 In my view, the relevant factors at this stage favour the ascertainment of the plaintiff's monetary remedies on inquiry after the determination of the other issues in the case.

20 I therefore order that the quantification of the plaintiff's damages or account of profits, as the case may be, be determined, if at all, upon inquiry after the determination of the other issues in the case, such inquiry to be, as may be directed by the judge hearing the case on liability, either before that judge or before another judicial officer.

Particulars:

21 The next and most complex aspect of the present dispute is the defendants' application for an order that the plaintiff provide better answers to a request for particulars contained in a letter from the defendants' solicitors to the plaintiff's solicitors of 14 September 2010. Ultimately, not all of the particulars requested in that letter were pressed.

22 The first request pressed was in respect of paragraph C5.7 of the amended list statement, the request being as follows:

We note that during the hearing before Einstein J, your client maintained its case that the relevant agreement was contained in this document, albeit only in the alternative to the other ways in which your client puts its case.

2. Please specify:

(i) who only behalf of the plaintiff it is alleged sent the 2006 Agency Agreement to the defendants in or about July 2006

(ii) to whom on behalf of the defendants it is alleged that the 2006 Agency Agreement was sent in or about July 2006

(iii) by what means and precisely when it is alleged the said 2006 Agency Agreement was sent by the plaintiff to the defendants

(iv) by whom and when on behalf of the plaintiff it is alleged the 2006 Agency Agreement was executed

(v) when, by what means and to whom it is alleged the 2006 Agency Agreement as executed by the plaintiff was communicated to the first defendant

(vi) by whom and when on behalf of the first defendant it is alleged the 2006 Agency Agreement was executed, and

(vii) when, by what means and to whom it is alleged the 2006 Agency Agreement as executed by the first defendant was communicated to the plaintiff.

3. Please provide a copy of the 2006 Agency Agreement or identify same in the parties’ discovery:

(i) showing execution on behalf of the plaintiff

(ii) showing execution on behalf of the first defendant, and

(iii) as sent by the plaintiff to the defendants as alleged .

23 The plaintiff pleads that the exclusive agency agreement is contained in, arose from or is to be inferred from a series of communications which it particularises in paragraph C5 of its list statement. One of the matters so particularised is a written "agency agreement" said to have been sent to the defendants in or about July 2006. As I read the plaintiff's pleading, it does now not appear to allege that the relevant agreement was wholly in writing, but that the written 2006 agency agreement was subsequently accepted by conduct in a number of ways. However, it seems that in a previous interlocutory hearing the plaintiff has maintained that it reserves the position, in the alternative, to rely on a written 2006 agency agreement.

24 As I apprehend the contentions and the evidence, so far as it goes at this stage, the plaintiff do not have in their possession an executed copy of the 2006 agency agreement. They maintain that they sent the document to the defendants in or about July 2006, as particularised in particular 7 to paragraph C5 of the pleading. They rely on an admission by the defendant of receipt of the agency agreement, and an admission by the defendant of (perhaps) having signed it.

25 In that context, it seems to me that the requests in sub-paragraphs (i), (ii) and (iii) are requests for evidence, not for particulars of material facts. So far as (iv) is concerned, it is a request for particulars of an allegation that the plaintiff does not make: nowhere in the pleading does the plaintiff allege that it executed the 2006 agency agreement. The request in (v) has explicit in it the assumption that the agreement had been executed by the plaintiff; for the same reason, as the plaintiff does not allege that it executed the agreement, that is not a proper request. So far as (vi) is concerned, the plaintiff does not in the pleading allege that the 2006 agency agreement was executed by or on behalf of the first defendant. The plaintiff has made clear, and I do not think that the defendants can be under any misconception in this respect, that they reserve their position to rely on an executed version if ultimately the evidence shows that it was executed on behalf of the defendant; but their pleading does not allege that it was so executed. Accordingly, I do not think that in those circumstances request (vi) is a necessary or appropriate one. So far as request (vii) is concerned, the plaintiff does not allege that the executed 2006 agency agreement executed by the first defendant was communicated to the plaintiff; accordingly that request is not a request for a particular of any allegation made in the statement of claim.

26 So far as the request in paragraph 3 is concerned, sub-paragraphs (i) and (ii) suffer from the same problem, that they assume an allegation of execution on behalf of the plaintiff and an execution on behalf of the first defendant, which is not made. The request in sub-paragraph (iii) would ordinarily be a proper one, save that in the particulars to paragraph C5 of the statement of claim, particular 7 identifies the document sent by the plaintiff to the defendants as document 190 of the plaintiff's discovered documents, so that the request is unnecessary and superfluous.

27 The next request is in respect of paragraph C5.8. In particular 8 to paragraph C5 the plaintiff alleges, as I would understand it, as one of the modes of acceptance by the defendants of the 2006 agency agreement, "The performance by the defendants of their obligations under the 2006 agency agreement". The request is "4. Please give full particulars of the performance relied upon hereunder". The only serious opposition advanced to providing a full answer to that request was that the plaintiff's evidence was not yet complete, and that might supersede the need for any such particulars. Given the time which it has taken for the plaintiff's evidence to be served, the number of defaults in that respect to this point, and the paucity of the evidence so far served in terms of addressing that particular issue, it seems to me that there could be little confidence that the plaintiff's evidence would fill any gap in that regard.

28 In any event, I do not accept that the answer "the evidence will make it all clear" is a sufficient response to an otherwise proper request for particulars. I will therefore make an order in due course that the particulars requested in paragraph 4 be provided.

29 The next relevant series of requests are those in paragraphs 14, 15, 16 and 17 of the letter:

As to paragraph C8, C8A and C9

14. Please explain how it is said that the first defendant breached the Agency Agreement as alleged by reason of the imports alleged to have been made by the second defendant in paragraphs C8 and C8A.

15. Please otherwise set out the relevance of the imports alleged to have been made by the second defendant in paragraphs C8 and C8A.

As to paragraph C10 and C11

16. Please explain how it is said that the first defendant breached the Agency Agreement as alleged by reason of the imports alleged to have been made by the second defendant in paragraphs C8 and C8A.

17. Please otherwise set out the relevance of the imports alleged to have been made by the second defendant in paragraphs C8 and C8A.

30 These are the requests which are intertwined with the proposed amendments to paragraph C8 and C9, to which I have referred. Although one can, without much difficulty, imagine ways in which it is said that the second defendant's acts were breaches of the agency agreement by the first defendant as alleged in paragraph C9 of the list statement, I also accept that it is preferable that the basis upon which that is alleged be clarified at this stage, there being some potential ambiguity in that respect.

31 It therefore seems to me appropriate that the particulars sought in paragraphs 14 and 16 should be provided. If they are provided, I do not see that a request for an explanation of the relevance otherwise of the second defendant's imports or alleged imports is necessary. I will make an order for the particulars in paragraphs 14 and 16.

32 The next set of the particulars pressed are those comprised in paragraphs 19 to 23 of the letter:

As to paragraph C18

19. Of (a): Please identify the respective interests of the first defendant, the second defendant and the Plaintiff.

20. Of (c): Please identify in respect of each defendant:

(i) the position

(ii) how and when it was used

(iii) how it is said that this was improper, and

(iv) the advantage

21. Of (d): Please identify in respect of each defendant;

(i) the business opportunities

(ii) how and when they derived from the fiduciary position

(iii) how and when they were exploited, and

(iv) in what way and when assistance was given to others.

22. Of (e): Please identify in respect of each defendant:

(i) the confidential information

(ii) how and when it derived from the fiduciary position

(iii) how and when it was used

(iv) how it is said that this was improper, and

(v) the advantage

As to paragraph C19A

23. In respect of each defendant:

(i) please identify and give full and precise particulars of the Confidential Information

(ii) please set out precisely

a. when

b. from whom

c. to whom

d. by what means

it is alleged such Confidential Information was conveyed

(iii) where it is alleged such Confidential Information was provided in one or more documents, please provide a copy of the same or identify where they appear in the parties’ discovery, and

(v) where it is alleged such Confidential Information was provided orally, please provide the substance of what was said.

33 Paragraphs 19 to 22 relate to paragraphs C18 of the list statement, which is as follows:

As to paragraph C18

19. Of (a): Please identify the respective interests of the first defendant, the second defendant and the Plaintiff.

20. Of (c): Please identify in respect of each defendant:

(i) the position
(ii) how and when it was used

(ii) how it is said that this was improper, and

(iv) the advantage

21. Of (d): Please identify in respect of each defendant:

(i) the business opportunities
(ii) how and when they derived from the fiduciary position
(iii) how and when they were exploited, and
(iv) in what way and when assistance was given to others.

22. Of (e): Please identify in respect of each defendant:

(i) the confidential information
(ii) how and when it derived from the fiduciary position
(iii) how and when it was used
(iv) how it is said that this was improper, and
(v) the advantage

34 However, it is noteworthy that C18 is preceded by C17 which repeats paragraphs 7, 8 and (now) 8A, and C16, which pleads the fiduciary duty said to be owed by the defendants to the plaintiff.

35 So far as the request in 19 is concerned, paragraph 18A of the pleading refers to the defendants' interest on the one hand and their duty to the plaintiff on the other. It does not refer to the interests of the plaintiff at all. A request for the respective interests of the defendants from the plaintiff is therefore beside the point.

36 So far as the interests of the defendants are concerned, in the context of the preceding paragraph and its incorporation of 7, 8 and 8A, there can be little doubt as to what is intended by the reference to the interests of the defendants. For example, to pick up paragraph 7 of the pleading, although the same terminology is not repeated in 8 and 8A, it is said that the products were imported "for sale to an existing customer of the plaintiff". It is, I think, tolerably clear that the reference to the interests of the defendants is to the defendants' business and commercial interests in selling goods for profit.

37 So far as the request in paragraphs 20 and 21 is concerned, in the light of paragraph 7, 8 and 8A I do not think there is room for any doubt as to what is encompassed by the allegations in paragraphs 18C and 18D.

38 So far as the request in paragraph 22 is concerned, however, the allegation in paragraph 18(e) that the defendants gained an advantage for themselves "through the improper use of confidential information which was obtained by them as a result of their fiduciary position" is at present entirely unexplained on the face of the pleading, and the particulars sought in respect of that allegation are, I think, necessary to enable the defendants to understand what the case put against them in that respect is. I will make an order for the particulars in paragraph 22.

39 Request 23, set out above, relates to paragraph C19(a) of the statement of claim, which also raises a question of confidential information. It is well-established that in a case based on breach of confidence, the information in issue needs to be particularised with clarity. I do not think a mere reference to "contract and spot order prices for the plaintiff's products" does that. There is a reference in paragraph 19(a) to disclosure of that information to the defendants, but no particularisation at all of that disclosure. It therefore seems to me that the request in paragraph 23 is an appropriate one to enable the defendants to understand the case that they have to meet. I will make an order for the particulars in paragraph 23.

40 I therefore order that, by 21 October 2010, the plaintiff provide to the defendants full and proper particulars in answer to the requests contained in paragraphs 4, 14, 16, 22, and 23 of the letter from Colin Biggers & Paisley to Price Waterhouse Coopers of 14 September 2010 being tab 18 in DX03.

41 I should also record that the orders I have made in respect of requests 14 and 16 resolve the issue about the sufficiency of the pleading to permit the amendment to paragraphs 8 and 8A which I have already foreshadowed.

Further and better discovery:

42 That then leaves the defendants' application for the plaintiff to give further discovery in accordance with matters identified in the letter from Colin Biggers & Paisley to Price Waterhouse Coopers of 12 August 2010. That letter identified three categories of documents in respect of which further discovery was sought.

43 The background is that an order for general discovery has already been made in the proceedings. There is evidence that the plaintiff has, pursuant to that order, served a verified list of documents which, in the absence of any submission to the contrary, I will assume complies with the rules.

44 The last two paragraphs of the 12 August letter refer to the second and third categories of the documents, discovery of which is now sought. The documents referred to in the last paragraph relate only to questions of quantum, and so much was not contentious. An attempt was made to suggest that the documents in the penultimate paragraph might relate to issues of liability, but it was unconvincing: in my view those documents also relate to questions of quantum only. The argument was that the documents in question were relevant to ascertain whether the plaintiff had the ability itself to service the additional transactions which it complains the defendant has made other than on account of the plaintiff. In a case of breach of confidence and breach of fiduciary duty, it is not apparent to me that the fact that the plaintiff might not itself have had the capacity to service the market which was allegedly appropriated by the defendants is a defence on liability; and although it might go to questions of damage, it would not go to questions of profits. The defendants pressed the relevance of that claim on the basis that such documents might show that the plaintiff knew of the defendants' activities and acquiesced in them. The short answer to that is that, at least at this stage, no such matter is pleaded by way of defence. Therefore, as the categories of documents referred to in the penultimate and last paragraphs of the 12 August letter in my view relate only to questions of damages, and as I have determined – partly because of the scope of discovery that would be involved in those classes – that it is appropriate that the question of quantification of damages be deferred to inquiry after the issue of liability has been determined, it is neither necessary at this stage nor appropriate to order discovery of those two classes, nor to insist on discovery of those two classes of documents.

45 That leaves the class of documents referred to in the second paragraph of the letter.

We note that your client’s discovery contains no internal communications relating to the necessity for the real purpose of the visit which was made to Australia by Pat Vosloo and Liezl Kemink at which meetings took place with our client in February 2010. We find it inconceivable that your client would have come to Australia for the purpose of confronting our client and potentially terminating its role as your client’s agent in Australia without having communicated internally about the issues it confronted him with. We also note that the Maersk Line bill of lading no. 858927378 (which was identified by you in your notices to produce earlier this year) and has been discovered as document 178 in your client’s List of Documents does not appear to have caused any of your client’s employees to correspond internally (or externally with anybody else. Please identify your client’s discovery all communications by your client and its officers and employees from 27 November 2009 concerning that bill of lading. Please produce all board papers and reports, board minutes, diary entires, correspondence, notes of meetings, memoranda and email communications involving officers and employees of your client: relating to Gondwana Chemicals Pty Ltd and Dave Willetts in the period 26 November 2009 to 1 April 2010.

46 It will be noted that, after adverting to the absence of internal communications relating to the real purpose of a visit made to Australia by officers of the plaintiff culminating in meetings with the defendants in February 2010, it proceeds to request production of a much wider class of documents relating to the defendants in the period November 2009 to April 2010. The plaintiff’s response was that the category of documents sought in that paragraph was not relevant to the issues in dispute as presently pleaded. I accept that the category described in the last sentence of the paragraph might well be much wider than would be relevant to issues in the proceedings. On the other hand, I am plainly of the view that internal communications relating to the subject matter of the visit to Australia in February 2010, casting light on internal communications and consultations about the prospective termination of the defendant's agency, would be relevant to facts and issues in the proceedings and ought to have been discovered, if they exist, pursuant to the order for general discovery already made.

47 At this stage, there is none of the type of evidence that would ordinarily be a pre-requisite to an order for further discovery: for example, there are no admissions by the plaintiff that they have other relevant documents in their possession; the form of the original list has not been shown to point to the probable existence of other documents, the documents referred to in the list of discovery have not been shown before me to point to the probable existence of other documents, and it has not been established that the basis upon which the first list was made involves an apparent misconception of the order or issues by the person who provided the list. In short, there is really not much more than speculation that there are likely to be other documents that meet the description in the first two sentences of the paragraph I have set out above, and a speculative possibility that a party has not disclosed a relevant document is not sufficient to found an order for further discovery [Martell v Victorian Coal Miners’ Association (1903) 9 ALR 231; Pendlebury v O'Neill (1911) 11 SR (NSW) 188; Kent Coal Concessions Limited v Duguid [1910] AC 452].

48 On the other hand, there is some concern, arising from the blanket denial that the category of documents sought in paragraph 2 are relevant to the issues in dispute, that there may have been some failure to advert to the full scope of what is relevant. In those circumstances, the plaintiff has sought an opportunity to obtain further instructions as to whether documents in the class or documents of the type to which I have referred exist and have not been discovered. That being so, the preferable course is that, having expressed the view that such documents ought to be discovered, if they exist, the plaintiff be afforded an opportunity to ascertain whether or not they exist. Counsel for the plaintiff has indicated that, if it is ascertained that such documents do exist, they will be discovered and, if it is not, confirmation that that is so will be communicated to the defendants.

49 Accordingly, having indicated those matters, I will not make an order for further discovery as sought. The effect nonetheless is that, one way or the other, the defendants will either get discovery of documents, though not to the full extent sought, or a confirmation that the plaintiff does not have such documents in its possession, custody or power.

Costs:

50 The plaintiff has substantially succeeded on its motion filed on 28 September 2010 and, save for the costs of the amendment, there is no good reason why the plaintiff should not have costs of that motion.

51 I order that the defendants pay the plaintiff's costs of the plaintiff's motion filed 28 September 2010, including half of the costs of the appearance before me today.

52 I order that the plaintiff pay the defendants' costs occasioned by the amendment of the list statement permitted pursuant to the plaintiff's motion.

53 So far as the defendants' motion is concerned, it is true that the defendants' success was more mixed than the plaintiff's on its motion. However, while the defendants did not obtain – or pursue – an order that the proceedings be dismissed, that motion was provoked in part by defaults of the plaintiff in serving its evidence. The defendants obtained orders for some, though not all, of the particulars it sought. Although it did not obtain an order for further discovery, it obtained an outcome that will give it practically the same result; and it did obtain an order for a separate trial which, while it is true was a case management issue, was a contested one, on which the defendants ultimately succeeded.

54 In short, the defendants had to come to court on their motion to obtain the relief they did. It is not as if it was offered so much of the relief it sought as it ultimately obtained. In those circumstances, I think the proper order in respect of the defendants' motion is the plaintiff pay the defendants' costs of the defendants' motion filed 20 September 2010, including one half of the costs of the proceedings before me today.

55 I direct that the further amended list statement be filed and served by 21 October 2010.

56 I direct that the defendants serve any response to the further amended list statement by 11 November 2010.

57 I adjourn the proceedings to Friday 12 November 2010 before the commercial list judge for further directions.

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LAST UPDATED:
11 November 2010