Barnewall v Tamborine Mountain RSL Services Club Inc [1994] QSC 2

State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J No 78 of 93 REGINALD ROBERT BARNEWALL and TAMBORINE MOUNTAIN RSL SERVICES CLUB INC BRISBANE . . DATE 1 4 I 0 1 I 9 4 JUDGMENT Plaintiff Defendant 1 4th Floor. The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 7 -- 1~9194 D.1 Turn 1 LAN (Ryan J) HIS HONOUR: I dismiss the application and order the applicant to pay the respondent's costs to be taxed. I publish my reasons. 10 20 30 40 50 60 JUDGMENT 2 -- 2 of 7 -- IN THE SUPREME COURT OF QUEENSLAND Writ No. 78 of 1993 Brisbane Before Mr Justice Ryan [Barnewall v Tambourine Mountain RSL] BETWEEN: REGINALD ROBERT BARNEWALL Plaintiff AND: TAMBORINE MOUNTAIN RSL SERVICES CLUB INC Defendant REASONS FOR JUDGMENT- RYAN J. Judgment delivered 14/01/1994 Counsel: Solicitors: Hearing Date: Mr C McConaghy for Applicant Mr P Hackett for Respondent Sly & Weigall Cannan & Peterson forApplicant Bickfords TA for Walsh & Partners forRespondent 9 December 1993 -- 3 of 7 -- IN THE SUPREME COURT OF QUEENSLAND Writ No. 78 of 1993 Brisbane Before Mr Justice Ryan [Barnewall v Tambourine Mountain RSL] BETWEEN: REGINALD ROBERT BARNEWALL Plaintiff AND: TAMBORINE MOUNTAIN RSL SERVICES CLUB INC Defendant REASONS FOR JUDGMENT - RYAN J. Judgment delivered 14/01/1994 The plaintiff seeks an order that the defendant make within seven days a further and better affidavit stating what documents are or have been in the possession or power of the defendants relating to the appointment of Mr. Kongstead-Jensen as membership secretary of the Club for the years 1990 and 1991, including all documentation relevant to his membership of the club and relating to the matters in question in the action. On 10 August 1993 a copy of the affidavit of documents of the secretary of the defendant was received by the solicitors for -- 4 of 7 -- 2 the plaintiff. A further affidavit of documents of the defendant dated 20 August 1993 was received on 24 August 1993. Inspection was completed on 1 November 1993. The action is one by which the plaintiff seeks inter alia declarations that he was a member of the club up to and including 24 June 1992, that the decision to remove his name from the list of ordinary members of the Club is void, and that he was entitled to have his name placed on the defendant's register of members as an ordinary member of the defendant since 24 June 1992. Alternatively he seeks a declaration that he is and has at all times since 31 December 1990 been an ordinary member of the defendant. He alleges a number of breaches by the defendant of its constitution by failing to notify him of the holding of the 1991 Annual General Meeting, to notify that his 1991 annual subscription was due and payable within 28 days of the 1991. Annual General Meeting, and to notify him in writing of his default in paying his 1991 Annual subscription, and by wrongfully rejecting payment of his 1991, 1992 and 1993 annual general subscriptions. It is alleged that it was the usual practice of the Management Committee of the Club to allow payment of an ordinary member's annual subscription to be paid to the Bar Manager of the Club, and that on 15 August 1991 he paid the 1991 subscription to the Bar Manager who accepted it. It is claimed that since 16 August 1991 he has been prevented from exercising the rights and privileges of membership of the club and of the defendant, and that by reason of the breaches he has suffered loss and damage. -- 5 of 7 -- 3 The defence alleges inter alia that the plaintiff failed to pay his subscription to the Club for 1991 in accordance with the Constitution following which the Secretary notified him in writing in accordance with cl.8(e) of the Constitution. The plaintiff failed to pay the subscription within one calendar month of the date of the notice, and by force of cl.8(e) of the Constitution, he ceased to be a member of the Club. Mr Kongstead-Jensen has deposed that in 1987 he was appointed to the position of "membership secretary" of the Club. He states that he sent a notice by post in respect of the 1991 subscriptions to the plaintiff, and there was no response to the notice. On 1 November 1993, the plaintiff's solicitors wrote to the defendant's solicitors, stating that no documentation had been discovered relating to the appointment of Mr Kongstead-Jensen as "membership secretary" of the Club. It was claimed that this was relevant to the question whether or not the secretary notified the plaintiff of default in payment of the annual subscription. In a later letter, it was claimed that any question as to whether or not Mr Kongstead-Jensen was the secretary of the Club or a person duly empowered by carry out the functions of the secretary of the Club was clearly relevant. It is clear from the pleadings that the defendant alleges that the Secretary notified the plaintiff in writing of his failure to pay his subscription to the Club for 1991. It does not allege that the notification was sent by anyone other than the Secretary. There is no allegation by the plaintiff that he was notified of any matter which the Constitution required that -- 6 of 7 -- 4 he be notified by the Secretary by some other person. Any document which, it is reasonable to suppose, contains information which may enable the party applying for discovery either to advance his own case, or to damage that of his adversary, if it is a document which may fairly lead him to a train of inquiry which may have either of these two consequences, must be disclosed. Compagnie Financiere du Pacifigue v Peruvian Guano Co . ( 1 8 8 2 ) 11 QBD 55 at p . 6 3 . In the instant case, discovery of the documents sought assuming their existence, could have neither of these consequences. It would not advance the plaintiff's case, which is that he received no notification. It would not damage the defendant's case if it was shown that Mr Kongstead-Jensen was appointed membership secretary, since the defendant claims that notification was sent by the secretary. The evidence of Mr Kongstead-Jensen is relevant to the question whether it was he or the secretary who sent the notification, but his appointment as membership secretary is not on the pleadings a relevant issue. The documents therefore do not relate to a matter in question in the case, and hence are not discoverable. I dismiss the application, and order the applicant to pay the respondent's costs to be taxed. -- 7 of 7 --