JUDGMENT No. Oth FS. CATCHWORDS DISCOVERY -- related foreign litigation involving a company controlled by the appellant - documents in the power of a person. STAY OF PROCEEDINGS - pending compliance with orders for discovery. Re B and B (1978) 3WLR 624 Palmdale Insurance Ltd (in liquidatyon) v. L Grollo Pty Ltd & Ors (1987) VR 113 u Y: ii or y. Westpac Banking Corporation & Ors QG136/92 QG 88/93 e : Bns! 3 ovember 1994 16 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA ) ENS TRI EGISTRY ) 9. OG13. 2 GENERAL DIVISION ) No, OG88 of 1993 BETWEEN: TSUTOMU YAMAJI First Appli AND: O. 137 L Second Applicant AND: WESTPAC BANKING CORPORATION irst Res t AND: CAYSAND NO. 138 PTY Second Respondent AND: ISAMU_YUTANI Third Respondent MINUTES OF ORDERS JUDGE MAKING ORDER: Kiefel J DATE OF ORDER: 2 November 1994 WHERE MADE: Brisbane THE COURT ORDERS THAT: 1. The proceedings, as against the first respondent, be stayed pending compliance with the order of Drummond J made on 1 July 1994 in these respects: (a) That the apphcant shall file and serve a supplementary sworn list of documents listing all the documents in the applicant's possession or (b) (c) power in relation to the issues in this action within 14 days from the date hereof. That list must list the documents shown in schedule 2 to the unsworn supplementary list of documents, and where it is to be said that the documents are not in the possession or power but previously have been, the list must disclose when they were last in the applicant's possession or power. In the event that it is asserted that the documents have been lost the list, which will be verified by affidavit, must explain in detail in which circumstances the documents were last in the applicant's possession or power, and how it is that the conclusion that they are lost or mislaid is to be drawn. Inspection of documents listed as within the possession or power of the applicants will then be completed within 21 days from the date of receipt by the first respondent of that list. Grant liberty to apply for good reason. The applicants pay the first respondent's cost of and incidental to this application on an indemnity basis and that the first respondent have leave to tax those costs immediately. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN T FEDE COURT OF AUSTRALIA ) U D DISTRICT REGISTRY ) No. 0G136 of 1992 GENERAL DIVISION ) No. OG88 of 1993 BETWEEN: TSUTOMU YAMAJI t icant AND: CAYS QO. 137 LTD eC icant AND: WESTPAC BANKING CORPORATION First Respondent AND: CAYSAND NO. 138 PTY LTD AND: ISAMU_YUTAN CORAM: _sKiefel J PLACE: Brisbane DATE: 2 November 1994 REASONS FOR JUDG At the directions hearmg on 1 July 1994 Drummond J directed that the applicants file and serve a supplementary sworn list of documents hsting all the documents in the applicant's possession or power in relation to the issues in this action, and relating to the action in Osaka District Court, Japan, by Friday, 29 July 1994. That list was to correspond to that scheduled to the first respondent's solicitor's letter of 1 July 1994. There was no dispute as to the relevance of those documents then or now. The action in Osaka is brought by two companies, Theol Company Ltd and Karitsu Company Ltd v Mr Yatani, the third respondent. It is an agreement between those companies, Mr Yamagi and Mr Yatami, as to the latter's contribution to the purchase of land at Amaroo Beach, which is relevant to these proceedings, including the question as to the first respondent's alleged knowledge that Yatani was to be the party to the loan agreement and not the applicant. There was no suggestion then that the applicants, or more particularly, Mr Yamagi, were unable to discover the documents or produce them for the purposes of the inspection which followed in the directions made. Oblique suggestions were made during the hearing earlier today, and on the earlier adjourned date, that this might not be so. At present, having regard to the affidavit which I grant leave to read this afternoon, there appear to be assertions that the documents are lost, if they in fact be the documents which were provided to former solicitors in Brisbane. About this I have some doubt, and in any event, it is nowhere said in any of the material that either the applicant's present solicitors or the applicant himself, has in fact required a copy of the documents from his company's solicitors in Japan or that any steps have been taken to obtain a copy by him from the Osaka District Court file. Documents in the power of a person, even if held by another, are discoverable. Whether the documents now listed m schedule 2 to the unsworn supplementary list of documents are in the first applicant's power, 1s a question of fact - see Re B and B (1978) 3 WLR 624 and Palmdale Insurance Ltd (in Liquidation) v L. Grollo and Company Pty Ltd and Ors (1987) VR 113. So where a person such as the first applicant controls a company or he can in practical terms be seen to be the company, he may be liable to discover and produce documents held by the company, but in respect of which he is able to obtain a copy. Paragraph 4 of the supplementary list asserts that the documents are on the court file. Inquiries have been made of the apphcant's former solicitors in Queensland and concludes that, to the best of the applicant's knowledge, the documents are lost or misplaced. The affidavit most recently filed in court by the applicant's solicitor takes the matter little further, as I have said. The facts, as disclosed on the material, tell against a conclusion that 1t is beyond the power of the Applicant to obtain a copy of them and strongly suggests that there has sumply been no meaningful effort to obtain a copy of the documents, if not from the Osaka file, at least from the solicitor's for the two companies in Japan: the companies Mr Yamaji controls. The fact of that control is itself alleged by Mr Yamayi in these proceedings. The earlier letter from his solicitors of 22 September does not suggest Otherwise, but simply ask the first respondent to itself obtain a copy "as we have advised our client to obtain". That approach appears to be one which has been followed ever since by the Brisbane solicitors. That is to say the correspondence suggests to me a level of disinterest by them in this sense, that they have left to their client to produce whatever documents he 1s able to find, without ensuring that the documents meet the requirements of the order of Drummond J I have earher referred to. Whilst following letters from the applicant's solicitors contain explanations ranging from that which suggests that they only have what their client or his Japanese lawyers have sent or that "strenuous" efforts have been made to locate the documents, nowhere is it explained despite repeated requests to do so, why copies have not been obtained from sources in Japan. It 1s on the evidence, I consider, still most likely that the Japanese lawyers having control of the action im Japan for the two companies, retain copies of the documents placed on the Osaka file. In any event, it does not seem to me to be onerous to require, in the circumstances, that the first applicant obtain a copy, even if it 1s from the court file. The order of his Honour has not been complied with. The supplementary list, in any event, unsworn 1s in its contents I consider inconclusive as to the sufficiency of discovery. No satisfactory or acceptable explanation as to non- comphance has been forthcoming, even having regard to the last affidavit filed. 0 E T: 1. The proceedings, as against the first respondent, be stayed pending compliance with the order of Drummond J made on 1 July 1994 in these respects: (a) That the applicant shall file and serve a supplementary sworn list of documents listing ali the documents in the applicant's possession or power in relation to the issues in this action within 14 days from the date hereof. (b) That hist must list the documents shown in schedule 2 to the unsworn supplementary hist of documents, and where it is to be said that the documents are not in the possession or power but previously have been, the list must disclose when they were last in the applicant's possession or power. In the event that it is asserted that the documents have been lost the list, which will be verified by affidavit, must explain in detail in which circumstances the documents were last in the applicant's possession or power, and how it is that the conclusion that they are lost or mislaid is to be drawn. (c) Inspection of documents listed as within the possession or power of the applicants will then be completed within 21 days from the date of receipt by the first respondent of that list. 2. Grant liberty to apply for good reason. 3. The applicants pay the first respondent's cost of and incidental to this application on an indemnity basis and that the first respondent have leave to tax those costs immediately. I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel. Date: — Neo oem, (qc MM ran Associate: Counsel for the Applicant: Solicitors for the Applicant: Counsel for the first respondents: Solicitors for the first respondents: Date of Hearing: Place of Hearing; Date of Judgment: Mr J D Linklater Lynch & Company Mr J K Bond Feez Ruthning 27 October 1994 and 2 November 1994 Brisbane 2 November 1994