Practice and procedure - Application for further and better discovery - Turns on own facts

Australian Dairy Corporation v Murray Goulburn Co-operative Co Ltd [1990] VicRp 33; [1990] VR 355

Beecham Group Ltd v Bristol-Myers Co [1979] VicRp 27; [1979[ VR 273

Benjamin v Pulfer, unreported; SCt of WA; Library No 6618; 4 March 1987

Biltoft Holdings Pty Ltd v Casselan Pty Ltd, unreported; SCt of WA; Library No 8703; 8 February 1991

British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709

Bushtown Holdings Pty Ltd v Conlan [1999] WASC 123

Creative Land Management Australia Pty Ltd (In Liq) v Barfam Holdings Pty Ltd [2000] WASC 177

Duffy v Minister for Planning, unreported; SCt of WA; Library No 980501; 8 September 1998

Hooker Corporation Ltd v The Commonwealth (1985) FLR 94

John Allan Ltd v Keegan [1968] WAR 125

Kent Coal Concessions Ltd v Duguid [1910] 1 KB 904

Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341

Pendlebury v O'Neill (1911) 11 SR (NSW) 188

Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178

TPC v CC (NSW) Pty Ltd (1995) 58 FCR 426

1 MASTER SANDERSON: This is the plaintiffs' application for further and better discovery from the defendants. At the commencement of the hearing, counsel for the first and second defendants produced a document entitled "Schedule of Matters". This document, which I understand was produced by agreement between the solicitors for the plaintiffs and the first and second defendants, settled the issues between these parties. Accordingly it was only the application by the plaintiffs against the third and fourth defendants which proceeded.

2 Because of the nature of this application it is necessary to go into some detail as to the nature of the dispute between the parties. Helpfully, counsel for the plaintiffs undertook a detailed analysis of the pleadings and the issues between the parties. Counsel for the third and fourth defendants did not dispute the analysis provided by counsel for the plaintiffs. Accordingly, I will simply repeat par 8 through to par 22 of the plaintiff's submissions. They are in the following terms:

"Plaintiffs' Six Causes of Action - Matters in issue on pleadings

8. The First Plaintiff ('Layne') and the Second Plaintiff ('SMS') carry on business providing drilling and related services to mining companies. SMS carried on its business in West and East Africa, and Australia. Layne made a successful takeover bid for SMS in 1997. Prior to the takeover, the First Defendant ('Stanley') was an executive director, employer and shareholder of SMS. Stanley was a shareholder in the Second Defendant ('Azilian'), and a director, secretary and shareholder of Sierra Bay Pty Ltd ('Sierra'). To effect the takeover Layne purchased SMS shares from Stanley for just over $7.5 million, from Azilian for just over $10 million and from Sierra for approximately $30,000. Layne also agreed to procure employment for Stanley with SMS for 3 years, and in September 1997 SMS entered a Consulting Agreement with Stanley. In late 1997 the Third Defendant ('Harper') left SMS's employment and commenced to act as a director and employee of the Fourth Defendant ('Geodrill'). In May 1998 Azilian provided loan funds to Cartwheel Advance Ltd ('Cartwheel'), which on-lent the funds to Trans Traders Ltd ('Trans Traders'), which in turn on-lent the funds to Harper and Geodrill for the purposes of setting up a business competing with SMS. Geodrill competed with SMS causing loss and damage to SMS. In September 1999, Layne and SMS terminated the Consulting Agreement with Stanley.

9. First, SMS claims damages from Stanley on the basis that he breached the Consulting Agreement. It is alleged that: Stanley planned and organised Geodrill's business to compete with SMS or a related corporation ('West African Drilling Services') in Ghana, West Africa; Stanley enticed Harper to leave SMS and to become a director and employee of Geodrill; Stanley caused or procured Azilian to provide the loan funds to Cartwheel intending that Geodrill should receive the ultimate benefit of these funds; Stanley further caused or procured Cartwheel to provide the loan funds to Trans Traders, and caused or procured Trans Traders to provide the loan funds to Harper and Geodrill or to equipment suppliers on their behalf; Stanley participated in Geodrill's business by regularly instructing Geodrill as to the conduct of its business and by performing services on behalf of Geodrill; Stanley disclosed confidential information to Harper and Geodrill relating to SMS's clients, methodology, equipment, business and operations; Stanley is in receipt of income from Geodrill, including interest on the loan funds.

10. It is alleged that these matters placed Stanley in breach of various provisions of the Consulting Agreement which required Stanley: not to plan, organise, participate in or have any interest in as owner, director, officer, partner, employee, consultant, agent, lender representative, or adviser of any business which is a competitor of SMS or any affiliated or related corporation (clause 10.1(d)); to honestly and diligently perform consulting services for SMS and at all times to use his best endeavours to promote SMS's interests (clause 6.1(d)); not to disclose SMS's confidential information and to keep such information with complete secrecy (clauses 9.1 and 9.2); not to seek to encourage an employee of SMS to leave SMS (clause 10.1(c)); not to render any services which would require him to reveal, base judgments upon, or otherwise use any confidential information (clause 10.1(e)); and not to engage in conduct which would damage SMS's ability to perform drilling services in Africa and Australia and which would be inimical to SMS's business of drilling contracting in Africa and Australia (implied term).

11. Secondly, SMS claims damages from Azilian for intentionally interfering with and inducing Stanley to breach the Consulting Agreement in that Azilian loaned funds, or provided loan facilities, to Cartwheel knowing that such funds were to be used to establish and operate Geodrill's competing business in Ghana.

12. Thirdly, SMS claims damages from Harper for intentionally interfering with and inducing Stanley to breach the Consulting Agreement in that Harper rendered services as a director and employee to Geodrill; Harper informed Stanley of, and acted upon Stanley's instructions regarding, the conduct of Geodrill's business; Harper caused Geodrill to borrow money from Trans Traders knowing that this money originally came from Azilian, as planned and organised by Stanley; Harper assisted Stanley in planning, organising and participating in Geodrill's business; and Harper assisted Stanley to conceal his participation in Geodrill's business by stating that Stanley was not participating in Geodrill's business and saying that Geodrill was financed by Harper's uncle.

13. Fourthly, SMS claims damages from Geodrill for intentionally interfering with and inducing Stanley to breach the Consulting Agreement in that Geodrill sought and acted upon instructions from Stanley as to the conduct of its business; and borrowed money from Trans Traders knowing that this money originally came from Azilian, as planned and organised by Stanley.

14. Fifthly, SMS claims damages from Stanley, Azilian and Harper on the grounds that with intent to injure SMS and Layne, they conspired, agreed to and combined in a course of action whereby one or more of them would commit unlawful acts, which were in fact committed. The acts of Stanley, Azilian and Harper mentioned above are alleged as the relevant acts which occurred in furtherance of the alleged conspiracy.

15. Sixthly, SMS claims damages for breach of the Consulting Agreement by Stanley, based on the acts of Azilian, Harper and Geodrill mentioned previously, who are alleged to have been acting as Stanley's implied agents.

Nature of Defences of Stanley and Azilian

16. The significant admissions made by Stanley and Azilian are as follows. Stanley is a former executive director, employee and shareholder of SMS, and entered the Consulting Agreement. Stanley is a director, secretary and shareholder of Sierra. While employed by SMS prior to the takeover, Stanley acquired a detailed knowledge of SMS's customers in Ghana. Layne made a successful takeover bid for SMS, and paid the amounts set out above to acquire shares in SMS. SMS entered the Consulting Agreement with Stanley, which contained the express terms pleaded. Stanley caused or procured Azilian to provide loan funds to Cartwheel. Sierra has received monies from Cartwheel in respect of loans made to Cartwheel. Azilian knew that Stanley had contractual obligations to SMS under the Consulting Agreement. Stanley and Azilian knew that the funds loaned to Cartwheel were to be used to establish and operate Geodrill's drilling business in Ghana. Layne and SMS purported to terminate the Consulting Agreement in September 1999.

17. Stanley and Azilian generally do not admit, or deny, the other allegations made by Layne and SMS. In two material respects they add to their denials. They say that Stanley was never required by SMS to perform consulting services pursuant to the Consulting Agreement; and that Stanley knew and intended that the loan funds which Stanley caused or procured Azilian to provide to Cartwheel were for Harper's ultimate benefit.

18. The only positive defences asserted by Stanley and Azilian are that at the time of the takeover SMS primarily conducted operations in seven particular African countries (including Ghana) and in Western Australia, and that Layne had determined that SMS's goodwill was comprised in the drilling operations conducted by SMS in these countries; and the Consulting Agreement contains unenforceable restrictive trade covenants which attempt to give Layne and SMS greater than adequate protection in so far as they purport to prevent Stanley operating throughout all of Africa.

Nature of Defences of Harper and Geodrill

19. The significant admissions made by Harper and Geodrill are as follows. SMS operates in six African countries (including Ghana), Indonesia and Western Australia. During Stanley's employment with SMS prior to the takeover, Stanley was SMS's most senior employee, entrusted with significant responsibilities, and Stanley developed close relations with SMS's clients and customers. From 1993 to 1998 Harper resided in Ghana and had knowledge of SMS's customers and business in Ghana. Stanley entered the Consulting Agreement with SMS, which contained the express terms pleaded. Cartwheel advanced to Trans Traders significant sums and Trans Traders has paid Cartwheel interest on these amounts. Trans Traders on-lent some or all of these sums to Geodrill. Geodrill knew that these loans were planned and organised by Stanley. From about May 1998 Harper and Geodrill knew that Stanley had made the Consulting Agreement with SMS, but erroneously believed that this Agreement prohibited Stanley advancing moneys to Harper or Geodrill. Harper has informed Stanley from time to time as to the progress of Geodrill's business. Harper has, in casual conversation, stated that Geodrill is and was financed by 'my uncle' or by 'winning Lotto'.

20. The solicitors for Harper and Geodrill have also indicated that they intend to amend their Defence to admit that Geodrill competes in Africa with a company associated with SMS.

21. Harper and Geodrill generally do not admit, or deny, the other allegations made by Layne and SMS. In the following material respects they add to their non-admissions or denials: they say that Harper was made redundant by SMS on 13 February 1998; they say that Stanley has no direct or indirect financial or other interest in Geodrill; they deny that the loans by Cartwheel to Trans Traders are a breach of the Consulting Agreement; Geodrill says that it does not know whether Stanley was the original source of the funds lent to Geodrill by Trans Traders, but says that it believes that the source of these funds was an entity connected to Stanley.

22. As with Stanley and Azilian, the only positive defence advanced by Harper and Geodrill is the argument that the Consulting Agreement contains unenforceable restrictive trade covenants."

3 By their application, the plaintiffs seek further and better discovery of documents or classes of documents listed in schedules to the chamber summons - Schedule 3 relates to the third defendant and Schedule 4 relates to the fourth defendant. In fact, the schedules are almost identical and it is convenient if I set out just Schedule 3. (During the course of submissions counsel for the plaintiffs sought to amend - or as he put it, "adjust" - the wording of pars 6, 8 and 9 of Schedules 3 and 4. The wording of the schedules as appears below includes the amendment underlined.)

1. All documents evidencing communications or agreements between the First or Second Defendant and the Third or Fourth Defendant regarding the establishment, financing, conduct or performance of the Fourth Defendant's business in the period from 1 January 1997 to the present ('the Relevant Period').

2. All documents evidencing communications regarding the transfer of funds from any of the First Defendant, Second Defendant, Sierra Bay Pty Limited, Cartwheel Advance Limited and Trans Traders Limited to the Third or Fourth Defendant, or vice versa, in the Relevant Period.

3. All documents evidencing transactions whereby funds were transferred from any of the First Defendant, Second Defendant, Sierra Bay Pty limited, Cartwheel Advance Limited and Trans Traders Limited to the Third or Fourth Defendant, or vice versa, in the Relevant Period.

4. All documents evidencing communications between the First or Second Defendant and representatives of MGI Midgley Snelling regarding the transfer of funds from any of the First Defendant, Second Defendant, Sierra Bay Pty Limited, Cartwheel Advance Limited and Trans Traders Limited to the Third or Fourth Defendant, or vice versa, in the Relevant Period.

5. All documents evidencing the funding of the Fourth Defendant by means of transactions involving Trans Traders Limited or Cartwheel Advance Limited, including all documents evidencing the planning or negotiation of such transactions and all accounts and financial statements brought into existence in the Relevant Period evidencing any of the following:

(a) moneys lent by Cartwheel Advance Limited to Trans Traders Limited;

(b) moneys lent, transferred or otherwise paid by Trans Traders Limited to the Third or Fourth Defendant; and

(c) moneys paid by Trans Traders Limited to any supplier to the Fourth Defendant of goods or services.

6. The Fourth Defendant's annual accounts, financial statements, Board minutes and Board papers for the Relevant Period to the extent that they relate to the purpose and intention of the First and Second Defendants in providing funds for the benefit of the Third and Fourth Defendants.

7. All tenders by the Fourth Defendant for drilling work in Africa, all correspondence relating to the acceptance or rejection of such tenders, and all contracts entered into by the Fourth Defendant for drilling work in Africa.

8. All documents relating to the incorporation of the Fourth Defendant to the extent that they relate to the purpose and intention of the First and Second Defendants in providing funds for the benefit of the Third and Fourth Defendants.

9. All documents, including accounts, relating to the establishment of the Fourth Defendant or its business to the extent that they relate to the purpose and intention of the First and Second Defendants in providing funds for the benefit of the Third and Fourth Defendants.

10. All documents relating to any direct or indirect transfers or payments of moneys from the Fourth Defendant to the First Defendant.

11. All documents relating to the recruitment, employment or remuneration of any person who has performed work for the Fourth Defendant and who was previously employed by the Second Plaintiff or West African Drilling Services Pty Limited at any time after 1 September 1997 including Mr Terrance Burling and Mr Stephen Robinson."

4 It is worthy of note that the 11 classes of documents referred to in Schedules 3 and 4 can in fact be broken down to a number of distinct categories. Items 1 through to 5 relate to loan transactions. If one of these items is to be discovered then it would seem to follow the rest would be discovered. Items 6 and 7 stand alone. Item 7 was the subject of a concession by counsel for the third and fourth defendants which I will deal with below. Items 8 and 9, as they have been adjusted, appear to cover the same documents. Again an order with respect to one would logically require an order with respect to the other. Item 10 appears to be the reverse of matters covered in items 1 through to 5. Once again, if discovery was ordered in relation to items 1 through to 5, it would seem to follow that discovery would be required in relation to item 10. Item 11 stands alone and goes to the question of damages.

5 It was the plaintiffs' contention that the discovery given to date was severely limited because of two misconceptions affecting the third and fourth defendants' approach to the discovery process. Counsel for the plaintiffs set out his reasoning in relation to what he described as the "first misconception and the second misconception" in par 24 through to par 32 and par 34 of his written submissions. Rather than paraphrase counsel's argument it is appropriate if I quote these paragraphs in full:

"24. First Misconception - The solicitors for Stanley and Azilian have stated that, in their view: 'There is ... no matter in question raised on the pleadings in respect of the provision of the loan funds to Cartwheel'. This is said to follow from the admission that in or about May 1998 Stanley caused or procured Azilian to provide loan funds (including two loan facilities of US$860,000 repayable on 30 June 2000 and 31 September 2001 respectively) to Cartwheel.

25. The Plaintiffs have alleged that the funds were intended for Geodrill's ultimate benefit, and Stanley and Azilian have said that the funds were intended as for Harper's ultimate benefit. However, Stanley and Azilian have not stated what they intended (as opposed to knew) Harper would do with the money when he (or Geodrill) received it as the intended ultimate beneficiary of the money.

26. While the fact of the payment of loan funds to Cartwheel has been admitted for Harper (or Geodrill's) ultimate benefit, the purpose and intention of Stanley and Azilian in making the loan has been put in issue. The Plaintiffs have alleged that the purpose of making the loan to Cartwheel was to conceal Stanley's participation in Geodrill's business; that Azilian and Harper intentionally interfered with and induced Stanley to breach the Consulting Agreement knowing that the loans were for the purpose of establishing and operating Geodrill's business; and that it was part of a conspiracy between Stanley, Azilian and Harper to commit unlawful acts. These allegations have been denied by Stanley and Azilian, in relation to their purpose and intention.

27. Thus, contrary to the view of Stanley and Azilian, there is a matter in question raised on the pleadings in respect of the provision of the loan funds to Cartwheel, namely their purpose and intention in providing such funds.

28. The narrow view of Stanley and Azilian, which restricts the discovery obligation to the mechanics of the advance of funds to Cartwheel, has meant certain categories of documents which may well be relevant to the purpose of the advances have not been discovered.

29. The solicitors for Stanley and Azilian have stated 'The advance to Cartwheel is admitted on the pleadings. Our clients have provided discovery of all the relevant bank statements of Sierra that record the making of those advances. Accordingly, if your clients maintain that they are entitled to discovery of the internal documents recording the transfer of the funds from Tazga (ie Azilian) to Sierra, please let us know on what basis that contention is made and identify any authority that supports such a proposition.' Evidently, there exist internal documents recording the transfer of relevant funds from Tazga (ie Azilian) to Sierra. These ought to be discovered as they will show the time and manner of relevant payments, from which an inference may be drawn as to the intention and purpose of Stanley and Azilian for the payments (if the purpose does not appear expressly).

30. Further, for the same reasons, bank statements showing the payment of funds from Tazga to Sierra ought to be discovered. The fact that they have not been follows from the statement by the solicitors for Stanley and Azilian that 'If your clients maintain their contention that they are entitled to discovery of documents from Sierra Bay that do not disclose the receipt of funds by [the Plaintiffs] directly or indirectly from either [Geodrill] or Cartwheel, would you please let us know on what basis that contention is made ...'.

31. Stanley and Azilian have discovered a letter from Stanley's ex-wife's solicitors, written to Stanley, referring to an affidavit which Stanley has sworn in Family Court proceedings on 24 June 1999 and quoting statements made in that affidavit by Stanley that the loans to Cartwheel were not for the purpose of Harper's business. If funds were provided by Stanley to Cartwheel for Harper's ultimate benefit but not with the purpose and intention that they should be used in Harper's business, this is relevant to the allegations which the Plaintiffs have made and which are denied by Stanley and Azilian.

32. The Plaintiffs have alleged that Midgley Snelling were engaged by Stanley for the purposes of concealing his participation in Geodrill's business. This has been denied by Stanley and Azilian. However, Midgley Snelling were clearly involved in setting up the loans with Cartwheel, as is evident from the correspondence. In addition to any other Midgley Snelling documents relating to the loan transactions, the existence of reports and invoices from Midgley Snelling to Stanley and Azilian may be inferred, in relation to work performed for the purposes of the Cartwheel loans. These invoices and reports are discoverable as the existence and contents of these documents will be relevant to establishing, or to a train of enquiry establishing, the purpose and intention of the Cartwheel loans, and the extent of Midgley Snelling's participation and advice as alleged.

...

34. Second Misconception - In responding to queries concerning the extent of discovery, the solicitors for Stanley and Azilian have consistently referred to their instructions as to whether Stanley and Azilian presently have in their possession, custody or power relevant documents. This is despite the Plaintiffs' specifically drawing to their attention that the obligation of discovery extends to discovery of documents which, in the past, were in their clients' possession, custody or power. This misconception is also sufficient to warrant further and better general discovery. Compare Pendlebury v O'Neill."

6 In answer to the plaintiffs' submissions, counsel for the third and fourth defendants also filed written submissions which, with respect, seem to me to fully explain the third and fourth defendants' position. Once again, rather than paraphrase counsel's submissions, it will assist if I quote in full what is said in par 18 through to par 20 of these submissions.

"18. The Plaintiffs raise six causes of action (Plaintiffs' submission paragraphs 8-15 (inclusive)). The Third and Fourth Defendants accept that intention is relevant to the claims for inducement to breach contract directed against the Second, Third and Fourth Defendants and the claim of conspiracy. Intention is not relevant to the claims for breach of contract against the First Defendant and the agency claim.

19. The following matters are admitted on the pleadings:-

19.1 In or about May 1998 the First Defendant caused or procured the Second Defendant to provide loan funds to Cartwheel Advance Limited (paragraph 18 First and Second Defendants' Amended Defence ('Defence 1 and 2')) paragraph 41 of the Third and Fourth Defendant's Amended Defence ('Defence 3 and 4')).

19.2 The First Defendant knew and intended that the loan funds were for the ultimate benefit of the Third Defendant (paragraph 19 of Defence 1 and 2).

19.3 The First and Second Defendants knew that the funds loaned to Cartwheel Advance Limited were to be used to establish and operate the Fourth Defendant's drilling business in Ghana (paragraph 24 of Defence 1 and 2).

19.4 Cartwheel Advance Limited made two loans to Transtraders Limited in an aggregate amount of $2.5 million. Transtraders Limited on-lent the money to the Fourth Defendant. Under the terms of the two loan agreements Transtraders Limited has made repayments in reduction of principal and has paid interest. (Paragraphs 41 and 47 of Defence 3 and 4).

19.5 The Third and Fourth Defendants knew that the First Defendant had made a consulting agreement with the Plaintiffs. The Third and Fourth Defendants believed, erroneously, that the consulting agreement prohibited the First Defendant from advancing moneys to either the Third or Fourth Defendants. (Paragraph 57 of Defence 3 and 4).

19.6 The Fourth Defendant believes that the loan funds originated from an entity connected to the First Defendant. It admits that the loans were planned and organised by the First Defendant and that the First Defendant would be paid interest on the loan amounts (para paragraph 61 Defence 3 and 4).

19.7 In causal conversation the Third Defendant has been evasive when questioned as to the source of the First Defendant's funds (para paragraph 58 Defence 3 and 4).

20. Intention in relation to the loan transaction is not a real issue between the parties on the pleadings. The Third and Fourth Defendants have not misconceived the Plaintiff's case."

7 On balance, I am satisfied that the plaintiffs' submissions on this issue should be accepted. The weakness in the plaintiffs' argument is that it is essentially directed at the action brought by the plaintiffs against the first and second defendants. But that does not, in my view, rule out the need for further discovery by the third and fourth defendants. It is clear that the intention behind the making of these loans is central to the dispute between the parties. For that reason discovery of the documents in categories 1 through to 5 and category 10 of Schedules 3 and 4 ought be provided.

8 It is perhaps worth making a point that what is required in the discovery process is that a party list all documents related to a matter in issue in the proceedings (my underlining): see The Compagnie Financiere et Commerciale Du Pacifique v The Peruvian Guano Co [1882] 11 QB 55 at 60, 62 - 64. A party is required to discover not just those documents which are directly relevant or even relevant to a matter in issue between the parties. What must be discovered are the documents which relate to a matter in issue. The latter is a far wider requirement than the former. It means that any document which might lead to a chain of enquiry must be discovered. When that test is applied to this application, it seems to me that discovery of the documents in categories 1 through to 5 and 10 is required.

9 The same can be said with respect to the documents in categories 6, 8 and 9 of the schedule. Once the paragraphs in the schedule were qualified by the amendment, they would seem to me to fall within the categories of documents related to a matter in issue between the parties.

10 So far as the documents in par 7 are concerned, counsel for the third and fourth defendants conceded in his written submissions that the plaintiffs were entitled to discovery of documents which identified the persons with whom the fourth defendant has contracted, the location of the drilling performed, the amount of the drilling performed and the dates the drilling was performed. He otherwise submitted that no further documents were discoverable. Counsel for the plaintiffs, on the other hand, contended that what was required was much wider discovery. For instance, it is highly probable that the fourth defendant maintained a drilling log - a document which recorded how much drilling was undertaken on a particular day, how often samples were taken, the type of rock encountered and so on. Counsel for the plaintiffs submitted that such a document - which he referred to as a source document - should be discovered. Counsel for the third and fourth defendants disagreed. He submitted that such a document was not necessary to enable the plaintiffs to calculate their damages.

11 In my view the source documents would, in a case like this, be discoverable. However, for present purposes I would be prepared to order only that the third and fourth defendants provide the limited discovery they propose. If once discovery is provided the plaintiffs require access to the source documents, then they can relist this application under the liberty to apply provision which I will include in the orders. However, for present purposes, I am of the view that it would be too onerous to require the third and fourth defendants to provide discovery of all source documents.

12 That then leaves documents in item 11. By a document dated 21 March 2000, the first and second plaintiffs answered a request by the third and fourth defendants for further and better particulars of the statement of claim. The request sought particulars of par 53 of the statement of claim. That paragraph pleads that the second plaintiff has suffered and continues to suffer loss and damage as a result of the first defendant's breaches of the consulting agreement. In providing particulars, the plaintiffs said that their damages comprised in part:

"19(d) The costs of hiring and training new staff to replace those who have moved to the employment of the First Defendant are estimated to have been $75,000."

13 Assuming for present purposes that the damages referred to fit within what is claimed by par 53 of the amended statement of claim, details of those persons recruited by the fourth defendant who were previously employed by the second plaintiff or West African Drilling Services Pty Ltd is clearly relevant. However, it is difficult to see why the remuneration of such individuals would be relevant. Accordingly, I would be prepared to make an order in terms of item 11 of the schedule with the words "or remuneration" in the first line deleted.

14 I will hear the parties as to the precise form of orders and as to costs.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LAYNE CHRISTENSEN COMPANY & ANOR -v- STANLEY & ORS [2002] WASC 249 (S)

Practice and procedure - Clarification of earlier reasons

1 MASTER SANDERSON: On 31 October 2002 I published reasons dealing with the plaintiffs' application for further and better discovery against the defendants. I noted that at the commencement of the hearing counsel for the first and second defendants produced a document which effectively settled the application as between his clients and the plaintiffs. I also noted that thereafter the first and second defendants had no interest in this application.

2 In the judgment I quoted verbatim the written submissions made by counsel for the plaintiff. These submissions refer to some limited extent to the first and second defendants. When I handed down judgment counsel for the first and second defendants, who had been provided with an early copy of the reasons, expressed concern that a number of the plaintiffs' submissions referred to the first and second defendant and were not refuted. Counsel asked that I publish supplementary reasons indicating that the first and second defendants did not accept the submissions made by the plaintiffs insofar as they concerned the first and second defendants. Counsel was concerned that his client's position may be prejudiced in some later proceedings.

3 To avoid any uncertainty I agreed to do as asked by counsel. I therefore make the point that nothing in my earlier reasons suggests that the first and second defendants accept any of the plaintiffs' submissions in relation to them.