Rules of the Supreme Court 1971 (WA), O 26 r 2(6), O 26 r 6

Commissioner of Water Resources v Federated Engine Drivers' and Firemen's Association of Australasia (1988) 2 Qd R 385

R&I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59

1 LE MIERE J: The question for determination is whether the plaintiff complied with a springing order for discovery or whether the plaintiff failed to comply with the springing order and the action has been struck out as a result.

2 The plaintiff gave discovery by serving a list of documents verified by affidavit sworn on 16 June 2005. There was then correspondence between the solicitors for the parties concerning supplementary or further and better discovery by the plaintiff. By letter of 10 July 2009 to the defendant's solicitor the plaintiff's solicitor said, amongst other things, that the plaintiff would provide further discovery of certain documents. The plaintiff's solicitor attached a copy of a draft 'supplementary affidavit of discovery'. By letter of 13 July 2009 to the defendant's solicitor the plaintiff's solicitor stated that the plaintiff would proceed to swear the draft affidavit and that it would include the subsequent discovery of pay slips and nominated tax returns. On 4 September 2009 the plaintiff swore a supplementary affidavit of discovery verifying a list of documents (the Supplementary Affidavit). The plaintiff filed the Supplementary Affidavit on 7 September 2009 but did not serve it.

3 The defendant sought further and better particulars of the plaintiff's statement of claim. On 11 March 2010 the plaintiff provided further and better particulars of his statement of claim.

4 On 15 March 2010 the defendant's solicitor wrote to the plaintiff's solicitor referring to the plaintiff's solicitor's letter of 10 July 2009 which enclosed the unsworn supplementary affidavit of discovery and stated that the defendants had not been served with a sworn version of that supplementary affidavit. By email of 7 May 2010 to the plaintiff's solicitor the defendant's solicitor proposed that the parties sign consent orders requiring the plaintiff to make and serve 'the further affidavit of discovery which has been outstanding for some time'. By email later on the same day the plaintiff's solicitor said that he would seek instructions from his client over the weekend and revert to the defendant's solicitors on Monday, 10 May 2010. The plaintiff's solicitors did not do so. By email of 21 May 2010 to the plaintiff's solicitor the defendant's solicitor said that if they did not receive a response by 24 May 2010 they would issue a chamber summons. The plaintiff's solicitors did not respond.

5 On 18 June 2010 the defendant caused to be issued a chamber summons for an order that the plaintiff file and serve a supplementary list of discoverable documents together with a verifying affidavit pursuant to O 26 r 2(6) Rules of the Supreme Court 1971 (WA). The summons came on for hearing on 1 July 2010. The defendant was represented by counsel. There was no appearance for the plaintiff. I made an order that:

Within 10 days the plaintiff file and serve a supplementary list of discoverable documents together with a verifying affidavit pursuant to Order 26 rule 2(6).

The defendant's solicitors served a copy of the order on the plaintiff's solicitors. The plaintiff did not comply with the order.

6 On 26 July 2010 the defendant's solicitors caused to be issued a chamber summons seeking an order that unless the plaintiff within 10 days complied with the order made on 1 July 2010 the action be struck out and judgment be entered in favour of the defendant. On 27 July 2010 I made orders in accordance with a minute of consent orders signed by the parties. The order provided relevantly that unless the plaintiff within 10 days complies with the order made on 1 July 2010 the action be struck out and judgment be entered in favour of the defendant with costs to be taxed (the Springing Order).

7 On 6 August 2010 the plaintiff served on the defendant the Supplementary Affidavit. The plaintiff says that he thereby complied with the Springing Order. The defendant says that the plaintiff has not complied with the Springing Order and accordingly the action has been struck out and the defendant is entitled to enter judgment.

8 The Springing Order was made on 27 July 2010 and required the plaintiff within 10 days to comply with the order made on 1 July 2010. The order made on 1 July 2010 required the plaintiff within 10 days to file and serve a supplementary list of discoverable documents together with a verifying affidavit pursuant to O 26 r 2(6). It might be said that the order made on 1 July 2010 required the plaintiff to file a list of documents and verifying affidavit and that the order was not complied with by an affidavit having been filed in September 2009. However, the defendant has not taken that point and it is not appropriate that I consider it further. The defendant says that the plaintiff failed to comply with the Springing Order because the Supplementary Affidavit did not list four documents, or classes of documents, that the plaintiff had said he would discover.

9 The defendant says that pursuant to O 26 r 2 the plaintiff was under a continuing obligation to give discovery of any document relevant to any matter in question and not already discovered by that party. The rule provides that a party shall give discovery, subject to exceptions not presently relevant, forthwith after the party become aware of a discoverable document and shall do so by filing and serving on the other parties a supplementary list showing the relevant documents together with a verifying affidavit. The defendant says that the Supplementary Affidavit did not disclose four of the documents or categories of documents identified in the affidavit of Mr Sheldrick sworn 18 June 2010 in support of the defendant's application for supplementary discovery and that the affidavit of Mr Sheldrick was uncontested and disclosed the existence of the four documents or categories of documents. The documents are:

1. Facts from Butcher & Calder to G Pisano with enclosures dated 23 December 1998.
2. Notices of assessment issued by the Australian Taxation Office in respect of the plaintiff for the financial years ending 30 June 2002, 30 June 2003 and 30 June 2004.
3. Letter from Fremantle Hospital to the plaintiff thanking him for his services.
4. The plaintiff's log book referred to in the plaintiff's further and better particulars of statement of claim.

10 The plaintiff says that the documents referred to were, on the plaintiff's admission, documents which the plaintiff was required to discover or alternatively the documents were documents which the plaintiff did not dispute were documents in respect of which he had a continuing obligation to give discovery. By failing to disclose the four documents the plaintiff has failed to comply with the Springing Order.

11 The plaintiff's primary submission was that a supplementary affidavit of discovery of the plaintiff verifying a list of documents was filed and served on the defendant within time and thus there has been compliance with the Springing Order. The plaintiff says that no order was made pursuant to O 26 r 6 for discovery of particular documents and the evidence shows that the defendant made a conscious decision not to apply for discovery of specific documents.

12 In oral submissions counsel for the plaintiff submitted that the plaintiff did not fail to comply with the Springing Order by failing to discover a document unless the plaintiff deliberately did not disclose a document where he was aware that the document was in his possession, was discoverable and had not previously been discovered. Furthermore, the plaintiff submitted that the defendant had not proved that the plaintiff was in possession of any of the four documents referred to in Mr Sheldrick's affidavit and that he was aware that he was in possession of the document and that he knew the document was discoverable and had not previously discovered it.

13 The defendant's contention and the plaintiff's primary contention arise from different interpretations of the Springing Order. Both interpretations of the Springing Order are reasonably open.

14 An order sought to be enforced must be clear. It must be expressed in terms that are 'sufficiently precise to admit of its ready or convenient enforcement' and that are such that 'the person to whom it is directed should be able, by reading it and without more, at once to know what it is that he must do, or refrain from doing in order to comply with its terms': Commissioner of Water Resources v Federated Engine Drivers' and Firemen's Association of Australasia (1988) 2 Qd R 385, 390; R&I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 (Owen J).

15 In R&I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd Owen J said:

When it comes to enforcement proceedings the court will look for clarity of meaning so that the liberty of the subject is not put in jeopardy due to difficulties of interpretation which could have been avoided in the drafting of the order. It was said in Iberian Trust Ltd v Founders Trust & Investment Company (1932) 2 KB 87 at 95 (in a passage approved by Owen J in Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 515-16) that 'if the court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done'. It is the presence of or absence of ambiguity which is at the heart of this dispute (78).

16 A similar approach should be applied to the interpretation of a Springing Order because of the serious consequences of non-compliance. The interpretation of the Springing Order advanced by the plaintiff is a reasonable interpretation of the Springing Order. In those circumstances I am not satisfied that the plaintiff has failed to comply with the Springing Order. Accordingly, the action has not been struck out.