Abram v American Express International Inc

REASONS FOR JUDGMENT 1 For the best part of a year the progress of these proceedings has been held up by problems relating to discovery. Those problems were brought to a head on 1 August 2000 when Mr Abram wrote to the respondents seeking specific discovery of a class of documents which he identified in that letter. When the matter came on for directions on 10 August 2000 I made an order for specific discovery of those documents by 8 September 2000 and gave directions as to the filing of evidence with a view to the matter being fixed for hearing. 2 I listed the matter for further directions on 13 November 2000. The order for discovery was not complied with and when the matter was called on for directions on 13 November, Mr Abram appeared but the respondent did not. Accordingly on 14 November 2000, Mr Abram took out a motion under Order 15 rule 16(1)(b) for entry of judgment in favour of the applicant because of the non-compliance with the discovery order by the respondent, and because of the respondent's failure to appear at the last directions hearing. 3 That motion was returnable this morning. When the matter came on for hearing, counsel for the respondent filed in Court an affidavit verifying a list of documents, which appears to have been sworn on 17 November. The list of documents asserts that the respondent does not, nor has it ever had in its possession, documents the subject of the discovery order. Given the nature of the motion which the respondent was facing, I was quite surprised that no affidavits had been filed explaining the failure to comply with the order for 10 August 2000, or explaining the non appearance by representatives of the respondent at the last directions hearing. 4 Thereafter, Mr Donovan of Kemp Strang, the solicitors for the respondent, gave oral evidence the substance of which was that the failure to comply with the discovery order and the failure to appear at the last directions hearing, was due to oversight on his part and was not indicative of any intention on the part of his client not to comply with the orders of the court. I accept what Mr Donovan has said and I simply observe that it is a matter of regret that the occasion arose in which he had to go into the witness box and say it. 5 Mr Abram frankly and fairly says that he does not suffer any irreparable prejudice as a result of the delay in giving discovery. In those circumstances I do not think that I would be justified in ordering judgment for the applicant in consequence of the respondent's procedural failures, when those failures have now been rectified and when an explanation for them has been given. Accordingly, I do not propose to make any order on the Notice of Motion other than an order that the respondent pay any costs incurred by the applicant by reason of the respondent's default and the necessity for the applicant to take out that motion. 6 Mr Abram is clearly dissatisfied with the response to his request for discovery and he points to the fact that at a previous directions hearing, Mr Donovan appeared to accept that documents of the type that Mr Abram wanted to have discovered, must exist. It seems to me that whatever Mr Donovan may have said in this respect, has been overtaken by his client's sworn affidavit. Generally speaking that affidavit is conclusive on the issue of discovery. The authorities in this respect were summarised by Austin J in Falk v Finlay [1999] NSWSC 1284. 7 It is a matter for Mr Abram to determine whether he wishes to endeavour to take this matter further and as I have indicated to Mr Abram on occasions in the past, I cannot advise him as to what course he should undertake. I will give him an opportunity of deciding whether he wishes to make any further application in relation to discovery. If he does, I think it better that all parties proceed with a maximum degree of formality so that there cannot be misunderstanding as to what the position of the respective parties is. 8 The matter is adjourned until Friday, 15 December 2000 at 9.30 am. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.