ACN 105 921 962 Pty Ltd & Anor v Dominic Wiggett aka Ashley Neave Wiggett & Anor

Judgment (ex tempore) 1HIS HONOUR: In the substantive proceedings, which were commenced in the District Court in 2007, the plaintiffs complain that the defendants, being a former officer of the plaintiffs and a corporation established by him, have, in breach of his duties as such officer, including under the (Cth) Corporations Act 2001 and his general law fiduciary obligations, diverted for the benefit of the defendants certain work involving the use of a high strength woven-geo-textile bag used to dispose of organic material and known as a 'Geotech bag'. 2There has been a very lengthy history of attempts on the part of the plaintiffs to obtain discovery from the defendants. Initially, after orders for discovery were made on 7 June 2010, the plaintiffs served their proposed categories of documents on 21 June 2010. After various extensions of time, the defendants served their first verified list of documents on 10 December 2010, disclosing no documents at all. On 4 April 2011, they served a second list of documents, disclosing some 90 documents. Thereafter, the plaintiffs issued subpoenas to third parties to obtain further documents, and the subsequent history is recorded in my judgment of 30 August 2011, when I adjourned the proceedings to 7 September for further directions "on which occasion it may be anticipated that the defence will be struck out if the order for discovery has not been complied with". That was a reference to the order for discovery made that day, that by Monday 5 September 2011 the defendants give discovery to the plaintiffs of the documents within the classes described in the schedule, by serving on the plaintiff a verified list of documents complying with (NSW) Uniform Civil Procedure Rules 2005, r 21.3. The schedule contained two paragraphs, as follow: (1) all financial statements including management accounts prepared by ATB Services Pty Limited on behalf of any of the defendants during the period 1 January 2006 to 30 May 2011, (2) all the defendants' bank accounts and communications with their bankers in connection with the operation of the waste treatment business which the defendants are alleged to have diverted or converted. 3On 7 September 2011, by consent, orders were made in accordance with short minutes and the proceedings were adjourned to 14 September. On 14 September, the proceedings were adjourned to 28 September. On 28 September, leave was granted to the plaintiffs to file a motion in respect of discovery, such motion to be returnable on 10 October. The plaintiffs on 5 October filed the motion the subject of today's hearing, in which they claim an order striking out the defence pursuant to various rules of court, but essentially on the basis of default in giving discovery. When that motion was returnable on 10 October, the defendants were given leave to file in Court a responsive affidavit, and the motion was adjourned to today for hearing. 4On the hearing of the motion, the plaintiffs called on a notice to produce addressed to the defendants, seeking production of the following: