BHA Computer Pty Ltd v Nijssen & Ors [1990] QSC 461

1' IN THE SUPREME COURT OF QUEENSLAND COMMERCIAL CAUSES JURISDICTION BEFORE MASTER WHITE 10 20 30 BRISBANE, 14 DECEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) No. 1354 of 1989 BETWEEN: BHA COMPUTER PTY. LTD. Plaintiff -and- GERARDUS MARIA NIJSSEN First Defendant -and- MARIA JOHANNA NIJSSEN Second Defendant -and- CHRIS WOLTHUIS Third Defendant AND: No. 193 of 1989 RE: BHA COMPUTER PTY. LTD. 10 20 30 40 40 50 60 ORDER MASTER: This matter is an application by the defendants in writ number 1354 of 1989 and the plaintiffs in action number 183 of 1989, that the plaintiffs (or defendants, as appropriate) make further and better discovery of the documents referred to in a letter from Messrs. Kenny and Loel to Messrs. Morris Fletcher and Cross, dated 4 December 1990. The balance of the summons relates to an application for further and better particulars of the amended statement of claim dated 11 August 1989 which were requested in various letters in October and Govt. Printer, Qld. 1 50 60 -- 1 of 4 -- December 1990. It should be noted that this is a matter which was set down for trial in November 1990, and on the day that it was expected to be called on for hearing no judge was available to hear the case. Certain observations were made in the media by 10 Professor Nijssen as to his disappointment at the inability of 10 this Court to provide a judge on that day. His counsel has indicated that it was proposed to seek orders for better discovery and particulars in the course of the trial. 20 30 40 50 60 The summons really would appear to be an application for particular discovery pursuant to 0. 35 r .18. However, the submissions seem to be directed towards further and better discovery in a general fashion, in relation to the matters in issue in these actions. The material upon which I have been asked to draw that conclusion are affidavits exhibiting the pleadings, but not including the affidavits of documents already filed in this action. An affidavit of Andrew Greenwood, filed by leave today on behalf of the respondents to the application, exhibits a draft further affidavit of documents which has not been executed, but which it is proposed to execute. Many of the matters which are said to be the subject of the application for further general discovery fall within the realm of particular discovery. The basis for seeking to persuade the Court that those documents are in existence, or likely to be in existence, is unsatisfactory. The matters which are raised and which are the subject of the draft affidavit, it seems unnecessary for me to deal with except to say that that affidavit demonstrates that the discovering party did not give full and proper discovery originally. Govt. Printer, Qld. 2 20 30 40 50 60 -- 2 of 4 -- l , 10 20 30 40 50 60 It is necessary for an applying party to seek to go behind the conclusiveness of the various affidavits of documents which have been filed in the past. Insufficient material has been placed before me for me to feel confident that the discovering party has in fact misconceived its functions beyond that which is necessarily apparent in the new affidavit. I am not 10 suggesting this may not be the case, but I am not satisfied on the material that this is so. Neither am I satisfied on the material that a case has been made out for particular discovery under 0.35 r.18. In those circumstances I will not order that there be 20 further and better general discovery, or particular discovery. 1 I have earlier made an order giving leave to the respondent to this application to amend its amended statement of claim so as to delete paragraph 14(c) of the amended statement of claim. I have also made an earlier order that the respondent deliver further and better particulars of paragraph 14(b) of the amended statement of claim and the formal order is that the plaintiff in action 1354 of 1989 provide further and better particulars of paragraph 14 ( b) of the amended statement of claim on or before 4 p.m. on 11 January 1991. In those circumstances, I dismiss the application for further and better discovery as set out in paragraph 1 of the summons. MASTER: I will order that the respondent file and serve an executed copy of the supplementary affidavit of documents of John Edward Hendry which appears as an exhibit to the affidavit of Andrew Peter Greenwood sworn 13 December 1990 and filed this day by leave on or before 4 p.m. on 21 December 1990. Govt. Printer, Old. 3 30 40 50 60 -- 3 of 4 -- 10 20 30 40 so MASTER: In relation to costs I will order that the respondent pay one half of the taxed costs of the applicant of and incidental to this application. Govt. Printer. Qld. 4 10 20 30 40 50 60 -- 4 of 4 --