Kent v SS "Maria Luisa"

beaumont j: 1 Before the Court is a notice of motion filed on behalf of the plaintiff, dated 19 April 2002, seeking, amongst other things, an order for supplementary discovery. The parties have agreed on all matters save one particular paragraph of the schedule to the notice of motion, which seeks by way of supplementary discovery: "(10) All documents evidencing the terms of any loan or financial accommodation and repayment of same between the company and Australian Fishing Enterprises Pty Limited from 1 January 1993 to date." 2 The principal proceedings are brought under the Admiralty Act 1988 ("the Act") and the statement of claim alleges relevantly: "3. At all material times, Australian Fishing Enterprises Pty Limited ("AFE") was the owner or charterer of, or in possession or control of, the vessels: (i) 'Monika'; and (ii) 'Boston Bay' 4. At the time of the commencement of these proceedings, AFE was the owner of the vessel 'Maria Luisa'." 3 By notice of motion dated 24 May 2001, the applicant, Everdene Pty Limited ("Everdene"), has given notice of its intention to move, amongst other orders, for the following: "3. that the service of the Writ in Rem be set aside for want of jurisdiction; 4. that the Writ in Rem be set aside alternatively that the proceedings herein be dismissed for want of jurisdiction;" 4 Everdene's notice of motion is listed for hearing at the end of this month. The claim is made in the principal proceedings that it has a right to proceed in rem against the surrogateship by virtue of the provisions of s 19 of the Act and, in support of that claim, which is said to provide the foundation for the Court's jurisdiction, the plaintiff seeks the documents in paragraph 10 of the schedule to its notice of motion, which paragraph is set out above. As mentioned, the parties have sensibly agreed on the production of a number of documents by way of supplementary discovery. 5 It is not necessary to specify any detail of this agreement. Everdene has agreed to the making of an order for the production of a number of documents, including documents relating to the creation of a unit trust known as the "Maria Luisa Unit Trust", certificates given in that connection, income tax returns and certain accounting records and lease and charter documents. 6 Turning then to the terms of paragraph 10 in the first instance. It seems to me that on any view, the reference in that paragraph to "financial accommodation", is too broad and uncertain. As mentioned in the course of argument, that language could pick up the most informal arrangement, and I think it would be oppressive to compel a party to search for documents under the umbrella of such a vague description. Accordingly, I would not, on any view, order the production of documents described in such terms. 7 That leaves paragraph 10, as expressed, to a call for documents evidencing the terms of any loan and repayment between the company and Australian Fishing Enterprises, between the dates mentioned. I accept that it is conceivable that a loan document could, for instance, in a recital, mention something which would illuminate the question of ownership of the vessel but, at the moment, this is sheer speculation on my part. Without more, I would not be prepared to assume the existence of any such recital. However, by Practice Note 14 and by the terms of O 15 r 2(3) - (5), the Court is not only obliged to manage discovery in complex proceedings, as these are, but to do so in way that restricts discovery to what is seen to be really necessary for the fair resolution of the dispute. 8 In my opinion, viewing the matter from an interlocutory perspective only at this stage, fairness requires that the call for documents in the terms of paragraph 10, limited as I have done, should be deferred until the plaintiff has had the benefit of inspection of the other documents to be produced by 21 May 2002. It is true that the hearing of Everdene's notice of motion is fixed to commence some nine days later than 21 May 2002, but, in my view, there is no real prejudice for either side by directing that the call be deferred pending the inspection of those further documents. 9 In those circumstances, I will now make formal orders as follows.