Matzat v Gove Flying Club Inc & Ors [1996] NTSC 9 (23 February 1996)
[2]
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF
AUSTRALIA
MILDREN J
CWDS
Practice and procedure - discovery - particular
discovery -
Supreme Court Rules R29.08.
HRNG
DARWIN, 22 February 1996 (hearing), 23 February 1996 (decision)
#DATE 23:2:1996
#ADD 17:2:1997
Counsel for third defendant: D Farquhar
Solicitors for third defendant: Cridlands
Counsel for
sixth defendant: J Kelly
Solicitors for sixth defendant: Philip & Mitaros
ORDER
Application allowed.
JUDGE1
MILDREN J
MILDREN
J
This is an application by the third defendant against the
sixth defendant for an order for particular discovery under
R29.08.
The plaintiff's claims are for damages for personal injuries
arising out of an aircraft accident in which he was a passenger,
and for compensation under the Fatal Accidents Act in respect of
his wife who was also a passenger in the accident. Those
actions
are brought against the first defendant as owner of the
aircraft and the employer of the pilot in charge who died in the
accident
and whose estate is sued as fourth defendant. The
plaintiff also sues the second defendant as the employer of the
pilot. It is
alleged that the crash was caused by the pilot's
negligence.
The plaintiff also sues the third defendant as the party
responsible
for the maintenance of the aircraft. It is alleged
that the third defendant failed to properly maintain the
aircraft which led to
the crash.
The plaintiff has also sued the fifth defendant who, it is
alleged, is the insurer of the second defendant and the
pilot
and the sixth defendant whom, it is alleged, is the insurer of
the first defendant. The actions against the fifth and sixth
defendants seek declarations of liability that the insurers are
obliged to indemnify the first and second defendants and the
deceased
pilot, as well as for the enforcement of an alleged
statutory charge over the insurance moneys pursuant to the
provisions of the
Law Reform (Miscellaneous Provisions) Act.
The third defendant has issued a contribution notice against
the first and second defendants. There are no contribution
proceedings
or claims of any other description between the third
defendant and the sixth defendant.
The first objection taken by the sixth
defendant is that the
third defendant has no standing to seek the relief sought
because there are no issues between the sixth defendant
and the
third defendant. I do not accept that submission.
Rule 29.08 is not as narrowly confined as R29.02. It is
clear that,
in general, the third defendant is only entitled to
be served with a copy of the list of documents provided by the
sixth defendant
to the plaintiff - see R29.06 - and to inspect
those documents - see R29.09. However, whilst R29.03(1), makes
it clear that discovery
is given only to a party by a party in
respect of whom pleadings are closed, R29.08 is not so limited.
That rule applies to all proceedings
in the court, irrespective
of whether or not there are pleadings, and specifically empowers
the court to order a party to a proceeding
to provide to any
other party an affidavit of documents and this is so even if the
party has already given discovery.
Further,
the word 'question' in the expression 'documents
relating to a question in the proceeding' is not confined
questions raised by the
pleadings between the parties: see the
definition of 'question' in R1.09 (1) which refers to 'a
question, issue or matter for determination
by the Court, ...
raised by the pleadings or otherwise at any stage of a
proceeding by the Court, by a party or by a person, not
a party,
who has a sufficient interest'.
Therefore, the mere fact that there are no pleadings as
between the defendants would
not prohibit the making of an order
under the rule, provided that the party had a sufficient
interest in the question to be decided
and to which the
documents relate. The documents for which particular discover
is sought in paragraphs 1(a) and 1(d) of the summons
clearly, in
my opinion, relate to a question in the proceeding; namely, the
plaintiff's entitlement to a declaration or to the enforcement
of a charge against the sixth defendant as the first defendant's
insurer. Does the third defendant have a sufficient interest in
that question?
The third defendant has sought contribution against the
first defendant. The first defendant has shown no interest
in
defending the proceedings. If the first and third defendants
are found to be liable to the plaintiff, the plaintiff may
enforce
the judgment against either defendant as he chooses.
The status of the first defendant is that it is in all
probability defunct.
The plaintiff's only hope of enforcing any
judgment to which he might be entitled is to pursue such
remedies as he can against the
sixth defendant direct and this
he has done.
The third defendant has asserted no right to a charge
against the sixth defendant.
Its only hope of relief against
the first defendant, in reality, is if the plaintiff succeeds
against the first and sixth defendants.
If that happens, the
plaintiff may choose to enforce at least part of the judgment
against the first defendant. In this sense,
the third defendant
has an interest in seeing that the plaintiff succeeds against
the sixth defendant. Does this give the third
defendant a
sufficient interest in the question between the plaintiff and
the sixth defendant? I think this question must be answered
in
the negative.
The third defendant cannot be heard at the trial on this
issue, nor can it call witnesses or tender documents
in relation
to that issue because it is not a party to it but a stranger to
it. If it were otherwise, it would be like the court
sanctioning a sneak attack without a declaration of war. The
sixth defendant could be faced with having to defend itself
against
the third defendant without being entitled to an order
for costs against the third defendant if the claim by the
plaintiff against
it failed.
The relief sought in paragraphs 1(a) and 1(d) of the summons
is therefore refused.
As to the relief sought in
paragraph 1(c) of the summons,
this relates to documents concerning the question of Mr Davies'
position or the position of Australasian
Aviation Claims as
agent for the sixth defendant. This is relevant only to the
sixth defendant's claim for privilege in relation
to documents
already disclosed. The sixth defendant does not have to
disclose the documents sought in part 1(c). They are not
relevant to any issue in the trial. Also, for the same reasons
as already discussed, the third defendant has no sufficient
interest in that question.
As to the rest of the relief sought in paragraph 1(c), it is
too wide. It seeks discovery of 'the
records maintained by Mr
Davies and/or Australasian Aviation Claims'. The relief thus
sought is not limited in any way. That application
must,
therefore, be refused.
As to paragraph 1(b), I consider the applicant does have a
sufficient interest in relation to some
of these documents. The
documents for which discovery is sought are documents relating
to 'the administration of any claim or potential
claim arising
out of the accident of 1 July 1989 referred to in the statement
of claim'. These documents could go to two issues.
The first
issue relates to the claim of the first defendant for indemnity
under the policy, as being pursued by the plaintiff.
The third
defendant has no interest in those documents for the reasons
already given. The second issue relates to the claim of the
plaintiff that the accident was caused by the negligence of the
first, second or third defendants or of the pilot whose estate
is
sued as the fourth defendant. The third defendant does have
a sufficient interest in those documents. The sixth defendant
says
it has already disclosed those documents and has claimed
privilege for them. That is not clear from the sixth
defendant's list of
documents. There is nothing in the sixth
defendant's list which identifies documents relating to the
investigation of the accident
by loss assessors, for example.
Order 29.04 requires a list of documents to be enumerated and
described seriatim or, in the case
of a group, sufficiently to
enable the document or group to be identified. This applies to
all documents, whether privilege is claimed
for them or not.
Without a proper list, with a full description of each document,
the third defendant cannot know whether the claim
for privilege
can be challenged - see 'Discovery and Interrogatories' Simpson,
Bailey & Evans, Butterworths 1984, at page 34.
The third defendant is entitled to a proper list; therefore
I do not think that the submission of Miss Kelly for the six
defendant
that these documents have already been disclosed is an
answer in this case to this class of documents. Although the
relief sought
in paragraph 1(b) of the summons is too wide,
rather than compel the third defendant to make another
application, I will in the exercise
of my discretion grant the
third defendant the relief to which he is entitled on the merits
because this a Category C action, it
is close to trial and the
parties should be saved from unnecessary delay and expense.
18. There will be an order that the sixth defendant
make and
serve on the third defendant an affidavit stating whether there
are any documents and, if so, what documents which are or
have
been in its possession or power and, they have been but are no
longer in its possession, when it parted with them and its
belief
as to what became of them relating to any investigation
by it, its servants or agents or the servants or agents of
Australasian Aviation
Claims relating to the liability or
possible liability of the deceased pilot, Duncan Nicholl, or the
first, second or third defendants
in negligence to the plaintiff
arising out of the accident pleaded in paragraph 18 of the
further amended statement of claim.
19.
I further order that whether or not privilege is claimed for
any such document or documents, the affidavit shall comply with
R29.04
of the Supreme Court Rules and, in the case of documents
for which privilege is claimed, it shall provide a full and
adequate description
of each document. The affidavit of the
sixth defendant shall be filed and served on the third defendant
within 21 days. I order
that there be costs in the cause.