New South Wales Supreme Court CITATION : Giles Geoffrey Woodgate v Helen Margaret Fawcett [2008] NSWSC 786 HEARING DATE(S) : 28 July 2008 JUDGMENT OF : Hammerschlag J EX TEMPORE JUDGMENT DATE : 28 July 2008 DECISION : No orders on the motion. Costs in the cause CATCHWORDS : EVIDENCE – defendant served expert report on plaintiffs – plaintiffs requested certain documents and information referred to in the expert report pursuant to s 166 of the Evidence Act 1995 (NSW) – defendants did not comply with request and plaintiffs obtained order of the Court under s 169 that defendant was to comply with the requests – defendant sent letter explaining non-compliance – plaintiffs sought order under s 169(3) that the defendant's expert report not be admitted into evidence – whether reasonable cause for non-compliance under s 169(4)(a) – whether Court had power to make order directing defendant to comply with request to identify author of a document – whether discretion to direct that the expert report not be admitted into evidence should be exercised LEGISLATION CITED : Evidence Act 1995 (NSW) Giles Geoffrey Woodgate PARTIES : M.G.B. Chadd Pty Ltd (in liquidation) ACN 062 822 897 Helen Margaret Fawcett FILE NUMBER(S) : SC 5869/2006 COUNSEL : J.T. Johnson (Plaintiffs) M. Lowenstein (Defendant) SOLICITORS : Sally Nash & Co (Plaintiffs) Leonard Legal (Defendant) - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST HAMMERSCHLAG J 28 JULY 2008 5869/2006 GILES GEOFFREY WOODGATE & ANOR -V- HELEN MARGARET FAWCETT EX TEMPORE JUDGMENT 1 HIS HONOUR: By interlocutory process dated 9 July 2008 the plaintiffs move for an order under s 169(3) of the Evidence Act 1995 (NSW) ("the Act") that the report of Robert Whitton of Lawler Partners dated April 2008 not be admitted into evidence because the defendant has not complied with an order made by the Court on 21 July 2008 under subs 169(1)(a) that it comply with a request by the plaintiffs under s 166. RELEVANT PROVISIONS OF THE ACT 2 The following provisions of the Act are relevant: "166 Definition of request In this Division: request means a request that a party ("the requesting party ") makes to another party to do one or more of the following: (a) to produce to the requesting party the whole or a part of a specified document or thing, (b) to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing, (c) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing, (d) to call as a witness a specified person in whose possession or under whose control a specified document or thing is believed to be or to have been at any time, (e) in relation to a document of the kind referred to in paragraph (b) or (c) of the definition of document in the Dictionary—to permit the requesting party, adequately and in an appropriate way, to examine and test the document and the way in which it was produced and has been kept, (f) in relation to evidence of a previous representation—to call as a witness the person who made the previous representation, (g) in relation to evidence that a person has been convicted of an offence, being evidence to which section 92 (2) applies—to call as a witness a person who gave evidence in the proceeding in which the person was so convicted. 167 Requests may be made about certain matters A party may make a reasonable request to another party for the purpose of determining a question that relates to: … (c) the authenticity, identity or admissibility of a document or thing. … 169 Failure or refusal to comply with requests (1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders: (a) an order directing the party to comply with the request, … (2) If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed. (3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under subsection (1) (a) or (b) is not complied with. (4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if: (a) the document or thing to be produced is not available to the party, or …" THE ORDERS OF THE COURT AND THE PLAINTIFFS' REQUESTS 3 On 21 July 2008 Austin J made the following orders, among others: "1. Under s.169 of the Evidence Act , I make the following orders: A. Order that the Respondent/Defendant provide information in response to para 6 of the letter from Sally Nash & Co to Leonard Legal of 20.6.08, & in relation to the documents behind tab N of Mr Whitton's report, the answer to paras 1 & 2 on p.3 of Sally Nash & Co letter. B. Order that the Respondent make all books & financial records as identified in para 3 of p.3 of the Sally Nash letter to the applicant for inspection. 2. Order that Order 1 be complied with by no later than 25.7.08." 4 Paragraph 10.2.19.v. of Mr Whitton's report is as follows: "However, I note the following: … I am instructed Herd's debtors' ledger was approximately $800,000 at the time of the Administrator's appointment." 5 The plaintiffs' first request, described in Order 1.A, was in the following terms: "In relation to paragraph 10.2.19 (v) please provide a copy of the debtors ledgers referred to in the paragraph." 6 The response from the defendant in a letter dated 25 July 2008 from Leonard Legal to the plaintiffs' solicitors was as follows: "Mr Whitton did not rely upon any debtors' ledgers in making the statement in paragraph 10.2.19(v) and therefore we are unable to produce copies of the 'debtors ledgers referred to in paragraph [10.2.19(v)]'. We note that Mr Whitton has included a copy of the instructions provided to him in Annexure A1 of his Report." 7 The answer from the defendant satisfies me that the documents are not available to them and that there was accordingly reasonable cause for failure to comply with the request for it as contemplated by s 169(4)(a). I will therefore not exercise my discretion to order that the report of Mr Whitton not be admitted into evidence on that basis. 8 Behind Tab N to Mr Whitton's report are unsigned financial statements of MGB Chadd Pty Limited for the year ended 30 June 2005 on a document bearing the name Eldridge & Associates. 9 The plaintiffs' second request was in the following terms: "1. Advise the identity of the author of the financial statements appearing behind divider 'N' to the 'expert report' of Robert Whitton; 2. Advise the identity of the person or persons on whose behalf instructions were given to the author of the financial statements on behalf of MGB Chadd Pty Limited". 10 The response to this in the letter from Leonard Legal was in the following terms: "In relation to the documents behind tab 'N', we are instructed to advise as follows: (a) The author of the financial statements appearing behind divider 'N' to the report by Mr Whitton is Eldridge & Associates; (b) Lawler Partners requested the accounts to be produced by Eldridge & Associates for the purpose of Mr Whitton's report." 11 This is not an answer to the request, nor compliance with the order which his Honour made. At best it is a non-answer; at worst it is a disingenuous response. 12 The difficulty, however, is that in my view his Honour was not empowered under s 169 to make the order which his Honour made because the second request in the letter is not a request within the meaning of s 166 of the Act. No part of that section contemplates a request to furnish the type of information which the plaintiffs sought. Nowhere does it envisage a request to identify who was the author of a particular document. 13 This is a matter properly for an interrogatory. 14 For that reason, although his Honour made the order, and the defendant has not complied with it, I would not exercise my discretion to direct that the report of Mr Whitton not be admitted into evidence on that basis. However it is appropriate in the circumstances of this case to give the plaintiffs leave to administer an interrogatory, to which the defendant is to provide a verified response. 15 The interrogatory may take the form of the request in the letter of Sally Nash & Co dated 20 June 2008. The defendant is to provide verified answers to such an interrogatory, which is to be served by no later than 5 pm on Friday, 1 August 2008. 16 The third request in the letter is for the defendant to make available all books and financial records that were made available to the author of the Eldridge & Associates financial statements for the preparation thereof. The response to that question was to my mind satisfactorily provided in the letter dated 25 July 2008 on the basis that the documents are not available to the defendant. 17 There is in evidence a letter from Eldridge & Associates dated 26 June 2008 which states a refusal to provide information to Ms Nash on the basis that fees remain unpaid. In those circumstances I decline to exercise my discretion to direct that the report not be admitted into evidence on that basis. However nothing I have said should be taken to indicate any predisposition either way as to whether ultimately the material sought to be relied upon in the report of Mr Whitton, on the current state of the material used by him to support the opinions which he has reached, is to be admitted on final hearing. That will be a matter for the trial judge at the hearing. 18 The costs of this motion will be costs in the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.