Belela Pty Ltd v Menzies Excavation Pty Ltd [2004] QSC 478 [2005] 2 Qd R 230

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2004] QSC 478 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION McMURDO J No BS6410 of 2004 BELELA PTY LTD (ACN 003 469 074) Applicant and MENZIES EXCAVATION PTY LTD (ACN 050 049 664) and I D MILLER First Respondent Second Respondent BRISBANE ..DATE 08/12/2004 ORDER -- 1 of 5 -- 08122004 T22/BLS4 M/T 3/2004 (McMurdo J) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application filed on behalf of Menzies Excavation Propriety Limited seeking a number of orders. The parties, however, have agreed on all but one matter and that is a question of the cost of the provision of copies of disclosed documents. I shall return to that matter in a moment but I shall first record that counsel for Belela Propriety Limited conceded at the outset of the hearing that it was appropriate that his client be ordered to provide an affidavit in relation to its disclosure and accordingly, an order in the terms that he indicated will be made. The order will be as follows: that by 15 December 2004, Belela Propriety Limited will cause an affidavit to be filed and served on its behalf which verifies a list of documents as all of the documents to be disclosed by it and which duly makes any appropriate claim for privilege by listing the documents for which privilege is claimed. I return then to the matter of the costs of the provision of disclosed documents. There is something of an impasse between the parties because the documents disclosed by Belela Propriety Limited have been the subject of a request for copies by Mr Menzies, the director of Menzies Excavation, who has been given leave to appear on its behalf, and the solicitor for Belela, in accordance with long standing practice, has required Menzies Excavation to provide the cost of copying the documents at 50 cents a page. -- 2 of 5 -- 08122004 T22/BLS4 M/T 3/2004 (McMurdo J) 3 ORDER 1 10 20 30 40 50 60 Mr Menzies submits that his company is entitled to copies without any payment. He submits that there is no rule under which the solicitor for Belela can require such a payment before having to make copies. In my conclusion, Mr Menzies' submission is correct. It is necessary to make some brief reference to the relevant rules. Rule 214 provides for disclosure by delivery of a list of documents and of copies. Sub rule 1 provides that a party performs the duty of disclosure by doing two things. The first, described within paragraph (a) is: "The delivery of a list of documents." The second, described within paragraph (b) is: "Where requested by the other party, the delivery of copies of the documents mentioned in the list of documents other than documents in relation to which privilege from disclosure is claimed." So on the face of rule 214, where there is a request for copies of documents referred to in a list, as has occurred here, it is part of the obligation to make disclosure for the disclosing party to have to deliver copies, and by implication, to produce those copies at its own expense. Rule 216 provides for an alternative method of disclosure which is by the production of the documents for inspection and, at the same time, notification to the other party of the place and time at which the documents may be inspected. In -- 3 of 5 -- 08122004 T22/BLS4 M/T 3/2004 (McMurdo J) 4 ORDER 1 10 20 30 40 50 60 such a case, rule 217 provides that the documents must be produced for inspection but further, that the party producing the documents must: "Provide facilities (including mechanical and computerised facilities) for the inspection and copying of the documents." Again, that seems to clearly suggest that the party producing the documents must, at least, facilitate their copying by the party to whom they are produced, and free of charge. No doubt, the practice under which the solicitor for Belela is operating is a long standing one which predates the present order and it usually occasions no difficulty in the conduct of litigation. Nevertheless, strictly speaking, Mr Menzies' point is one which should be upheld and I therefore indicate that the copies which he seeks of disclosed documents must be provided to him without his company paying, at the time, some fee for the expense of copying. As I have made it clear to him, however, in the course of his submissions, it is a different matter which could arise at the end of this litigation in the event that his company is unsuccessful and is ordered to pay the costs of the proceedings. It is a different consideration then as to how -- 4 of 5 -- 08122004 T23/DR26 M/T 3/2004 (McMurdo J) 5 ORDER 1 10 20 30 40 50 60 much of Belela's costs of copying would be recoverable by it as part of its costs of the proceedings. With that indication in relation to copying, there is no need for any order in relation to inspection and, as I have indicated, the parties have otherwise agreed on the outcome of the application for which the appropriate order is that which I have made for the filing of an affidavit within seven days. As to today's costs, Mr Menzies has strongly addressed me in terms which are to the effect that I should reserve the costs. That is the appropriate course, in my view, and the costs of each party on this application shall be reserved. ... ----- -- 5 of 5 --