NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2008] NSWSC 472 | Case summary

Within 21 days, the plaintiff . . . serve answer[s] to those interrogatories in accordance with UCPR 22.3." Background 2 The proceedings were commenced on 29 October 2003 against the first and second defendants. The plaintiff claimed damages for breach of duty of care and nuisance. 3 The plaintiff was the occupier of a large farm near Moree called "Telleraga Station". The plaintiff alleged that it had suffered loss and damage as the result of herbicide spray drift that adversely affected its cotton and sorghum crops, first discovered in December 2000. The cotton crop had been planted between 21 September 2000 and 6 October 2000 and the sorghum crop had been planted between 6 November 2000 and 11 November 2000. The cotton crop was picked in early April 2001 and the sorghum crop was harvested in late April or early May 2001. On 4 April 2001, the plaintiff entered into a contract for the sale of its property, which was completed on 30 June 2001. 4 The first and second defendants were the occupiers of a large farm called "Boonaldoon" that is adjacent to the plaintiff's property. Those defendants engaged Gwydir Air Charter Pty Ltd ("Gwydir") to conduct aerial spraying of herbicide on "Boonaldoon" from 23 November 2000 to 27 November 2000. Gwydir was in administration when the present proceedings were commenced and subsequently went into liquidation and was deregistered. Gwydir has never been a party to the proceedings. 5 The plaintiff and the first and second defendants gave mutual discovery in 2004. The plaintiff was required to discover documents in 23 categories consisting of 11 categories nominated by the second defendant and 12 additional categories nominated by the first defendant. There was some negotiation about the categories, and this is reflected in correspondence passing between them. The categories cover, or relate to, the following issues in the proceedings: 5.1 The method and cost of growing the plaintiff's cotton and sorghum crops in the 2000/2001 season.

11 A court must "have reasonable grounds for being fairly certain that there were other relevant documents which ought to have been disclosed": see Nettlefold (supra) at 714; Beecham Group Ltd v Bristol-Myers Co [1979] VR 273 at 276; Preston v Star City Pty Ltd [2007] NSWSC 293 per Hoeben J at [21]. 12 According to the third defendant, the adequacy of the plaintiff's discovery had been an outstanding issue between them since the third defendant was joined to the proceedings in about June 2007. Apparently in an attempt to resolve the issue, the plaintiff and the third defendant undertook a process whereby the documents that had been discovered by the plaintiff were to be provided to the third defendant's expert agronomist Mr Ghirardello for review. If he found any deficiencies, the third defendant was to outline a request for further and better discovery to the plaintiff. In the events that occurred, such a request was made by letter dated 10 January 2008. With the benefit of Mr Ghirardello's advice, that request set out the nature of the incompleteness alleged, the better record or supporting or related record contended for and the relevance of each of the documents requested. 13 The letter of 10 January 2008 extends to 36 pages. It is dense with detail. The burden of Mr Ghirardello's opinion is that relevant documents, particularly in relation to the issue of causation, are suggested or implied to exist by the documents that have been discovered. Documents said to fall into this category, for example, are tax invoices, purchase orders and spray orders for spraying that had been conducted on the plaintiff's property. 14 The plaintiff points to a letter from the solicitor for the third defendant to the solicitor for the plaintiff dated 13 June 2007 that contains 51 categories of documents for discovery. In formulating these categories, according to the plaintiff, the third defendant paid no regard to the 23 existing categories in which the plaintiff had already given discovery, which were thorough and extended to coverage of aspects of the plaintiff's claim, including the issues of causation and damage, in relation to which it had relevant material. The letter of 13 June 2007, again according to the plaintiff, was clearly written before the third defendant had inspected the plaintiff's discovered documents because that inspection occurred sometime after 27 August 2007. It would appear also to have been written before the third defendant had a copy of the existing categories of documents with the plaintiff's verified list because the solicitor for the third defendant was provided with a copy of those documents under cover of a letter from the plaintiff's solicitor dated 6 July 2007. 15 As a result of the substantial overlap between the claims against the third defendant and the claims against the first and second defendants, there are corresponding substantial overlaps between the 23 categories in which the plaintiff has already provided discovery and the proposed further 51 categories suggested by the third defendant. There are also differences in expression, so that on occasions the same document is referred to differently. The 13 June 2007 letter was followed by correspondence in which the solicitor for the plaintiff referred to the discovery that had already been given in an attempt to avoid the plaintiff being required to carry out another discovery process from the beginning, and with the third defendant insisting that discovery be given in its nominated categories. The plaintiff has emphasised that at no stage has the third defendant attempted to formulate its categories by reference to the original categories in which the plaintiff provided discovery. 16 The first issue is whether or not the plaintiff has discovered all the documents that it should already have discovered. According to the plaintiff, this issue does not require any change to the categories in which the plaintiff is required to give discovery. The third defendant is essentially seeking an order requiring the plaintiff to do what it is already obliged to do. The plaintiff is subject to a continuing obligation in respect of discovery. Any discoverable document that comes into its possession is required to be discovered. In response to the third defendant's claims, the plaintiff denies having any other documents in its possession in the categories in which it has already given discovery according to its verified list. The plaintiff's argument is simply that there is no point in ordering it to give the discovery it has already been ordered to give and which it is obliged to continue to give. In any event, according to the plaintiff, it has no more documents to discover. 17 The affidavit verifying discovery is conclusive unless it can be shown by recourse to the documents discovered or from the content of the affidavit verifying discovery or from the pleadings or "from any other source that constituted an admission of the existence of a discoverable document" that the discovery has been insufficient: see Proctor and Gamble Australia Pty Ltd v Medical Research Pty Ltd [2001] NSWSC 183 at [64]. A party wishing the court to order further discovery must establish some basis for the court to conclude that the discovering party has more documents in its possession that it has not discovered. 18 The plaintiff submitted that the evidence upon which the third defendant relies fails to satisfy this test. It is not enough for the third defendant simply to say that it wants more documents to be discovered and that it might have expected more documents to be discovered. The third defendant must establish some basis for the court to find that the plaintiff has such documents in its possession. According to the plaintiff's submission, the documents described in the letter of 10 January 2008 all fall within the existing 23 categories in which the plaintiff has given discovery. 19 The second issue is whether or not the plaintiff should be required to discover documents in categories that are wider than the categories in which it has already given discovery. The plaintiff contends that an order that it discover more widely would be oppressive and contrary to the overriding purpose of the just, quick and cheap resolution of the real issues in dispute between the parties to the proceedings. The plaintiff contends that if the third defendant wished to expand upon the categories in which the plaintiff has already given discovery it should have done so by reference to those existing categories and that no orders for further discovery should be made until it does so. 20 Moreover, the plaintiff submits that of the 51 categories proposed by the third defendant, only four are clearly additional to the existing categories. Three of those relate to insurance that the plaintiff might have had and the other relates to leases or share farming agreements in respect of the property between 1 July 1999 and 30 June 2005. The plaintiff submits that these categories could not contain any relevant documents because the issues of whether or not the plaintiff had insurance or had entered into leases or share farming agreements are not issues that arise in the proceedings. 21 Finally the plaintiff argues that if it were required to give further discovery in the 51 categories identified by the third defendant, it would take the total number of categories to 74 with the significant prospect of overlap in content and confusion flowing from variations in expression. The plaintiff would, in effect, be required to repeat the process of discovery completely, rather than being required to search for documents in defined, but expanded, categories. It is now some years since the plaintiff sold its farming business and the ability of the plaintiff to provide discovery in the way now suggested by the third defendant may render it or its directors and officers liable to criticism or worse if the process were subsequently shown to have been completed inadequately. The order sought by the third defendant would be oppressive for this reason as well. Conclusion 22 In my opinion the third defendant's motion for further and better discovery should be dismissed. Competent solicitors have at all times represented the first and second defendants. No doubt when attention was given by them to the issue as far back as 2004, the categories in which the plaintiff was to be required to give discovery were closely considered and formulated by reference to the issues then thought likely to arise in the proceedings. Since that time, including the joinder of the third defendant in 2006, those issues have not changed. 23 I accept immediately that minds may differ on questions such as the breadth and depth of the categories within which a particular party may be required to give discovery and the adequacy of that party's compliance with its obligation to do so. In the same way there must be a practical recognition of any party's right to be given and to benefit from its own professional legal advice and representation when, as in the case of the third defendant, it is joined as a party to relatively complicated legal proceedings. That is not to say, however, that the addition of a party to proceedings, which becomes thereby liable to confront a series of factual and legal issues that are not substantially dissimilar to those already alive in the proceedings, ought to expose another party, in this case the plaintiff, to an obligation with which it would appear properly and adequately, and to the satisfaction of the then existing defendants in a similar interest, already to have complied. 24 I note in this last respect that although it has not filed a separate application, the first defendant has filed submissions in support of the third defendant's application for further discovery by the plaintiff. Those submissions emphasise, as the submissions of the third defendant emphasised, that the opinions of Mr Ghirardello, that he requires further documents in order to complete his expert report, are critical. It seems to me to be not insignificant to observe, as the plaintiff has emphasised, that Mr Ghirardello would appear as early as 18 December 2000, following "preliminary investigations into . . . liability", to have been able to form the view and to express the opinion that "Gwydir Air are responsible for drift damage on to Telleraga". He went on to express the opinion that in his view, "the matter of liability (relating to the source of injury) could have been resolved at a minimum expense had [certain things occurred]". He had also expressed the opinion that "[o]ther possible source of chemical to cause injury has now largely been discounted, based on the new information recently received along with crop injury [quaere 'pattern'']": see Exhibit "DW20" to the affidavit of David Ward sworn 4 November 2005. 25 I consider that it would now be oppressive to require the plaintiff to give discovery in additional categories as requested by the third defendant. I am further not satisfied that the plaintiff has failed to comply with its obligation to give discovery in the original categories, or that it is in breach of its continuing obligation to do so. Interrogatories 26 The Court may order a party to answer interrogatories at any stage of the proceedings provided that the Court is satisfied that the order is necessary at the time it is made. The requirement of necessity has consistently been interpreted as meaning "necessary in the interests of a fair trial": see, for example, Boyle v Downs [1979] 1 NSWLR 192, 204-5; Percy v General Motors-Holdens Pty Ltd [1975] 1 NSWLR 289; Pelechowski v Registrar Court of Appeal [1999] HCA 19; (1999) 198 CLR 435; Chong v Nguyen [2005] NSWSC 588; Director-General, Dept of Community Services v D [2006] NSWSC 827 at [46]-[50]. 27 On 31 August 2007 the third defendant requested particulars of the plaintiff's statement of claim and the plaintiff answered that request on 12 October 2007. However, the plaintiff declined to answer particulars numbered 77-86 upon the basis that: "These [were] not proper request for particulars. It is beyond the scope of particulars to conduct an inquiry into issues generally, including liability." 28 The proposed interrogatories are based upon the particulars requested but not answered. The third defendant says that the answers will advance its defence on the question of causation and to that extent are necessary in the interests of a fair trial. No more detailed submission than that is made. Conclusion 29 The proposed interrogatories are set out in annexure "O" to the affidavit of Conor Anthony Reidy sworn 7 February 2008. I have had regard to them in detail in the light of the issues in these proceedings. In my opinion they do not on their face relate to any issue that presently arises. For example, the installation and servicing of weather stations on the plaintiff's property would appear to be wholly irrelevant. Similarly, contracts entered into by the plaintiff with third parties in respect of the spraying of chemicals is presently not a matter brought forth by or related to any current issue in the case. The issue of pest and disease outbreaks on the plaintiff's land is an attempt to obtain information by fishing. 30 In considering the interests of a fair trial it is not without significance that the plaintiff will almost certainly be required to call evidence from witnesses to prove its case within whose knowledge much, if not all, of the information that is the subject of the proposed interrogatories will be found. The ability of the third defendant to secure a fair trial may well have been established by a demonstration of the existence of relevant and critical information in the minds of individuals who might not be expected to be called in the plaintiff's case or whose co-operation with the third defendant as a witness in its own case could not be guaranteed or expected. The third defendant has not pointed to such a situation arising in the present case or to any similar circumstance that tends to suggest that it will be denied a fair trial because any of the information that is the subject of the proposed interrogatories is not within its own knowledge or might not otherwise emerge or be available at the hearing. 31 In my opinion the third defendant's motion for the administration of the proposed interrogatories should be dismissed. Orders 32 In these circumstances I make the following orders: 1. The third defendant's amended notice of motion dated 15 February 2008 is dismissed.

NM Rural Enterprises Pty Ltd v Rimanui Farms Limited

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