District Court New South Wales Medium Neutral Citation: Chep Australia Ltd v Cavanagh; Chep Australia Ltd v Warehouse Distributions Pty Ltd [2013] NSWDC 256 Hearing dates: 12 July 2013 Decision date: 12 July 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Order Coles Group Limited give discovery to Express Direct Service of all documents bearing a date November 2011 to April 2012 inclusive, which evidence delivery of Coles Group Limited goods or of pallets by Express Direct Service to Austrans Container Service. (2) Austrans Container Service to bear its own costs of the applications but as between Coles Group Limited and Express Direct Service the costs of the applications be costs of the second cross-claim recoverable by Coles Group Limited or Express Direct Service only insofar as that party obtains a favourable order against the other for the costs of the second cross-claim. Catchwords: DISCOVERY - to supply particulars requested by another party - relevance to pleadings - relevant period - costs Cases Cited: Perpetual Trustees Victoria Limited v Dunlop & Ors [2009] VSC 331 Procter v Kalivis [2009] FCA 795 Category: Interlocutory applications Parties: 2012/216176 Chep Australia Limited ACN 117 266 323 (plaintiff) Glen Cavanagh (defendant/first cross-claimant) Express Direct Services Pty Limited ACN 069 778 847 (first cross-defendant/second cross-claimant) Vermile Pty Limited ACN 007 130 092 trading as Austrans Container Service (second cross-defendant) Coles Group Limited ACN 004 089 936 (third cross-defendant) 2012/216292 Chep Australia Limited ACN 117 266 323 (plaintiff) Warehouse Distributions Pty Limited ACN 113 717 098 (first defendant/first cross-claimant) John Arthur (second defendant/third cross-claimant) Jordan Wilmot (third defendant/second cross-claimant) Express Direct Services Pty Limited ACN 069 778 847 (first cross-defendant/fourth cross-claimant) Vermile Pty Limited ACN 007 130 092 trading as Austrans Container Service (second cross-defendant) Coles Group Limited ACN 004 089 936 (third cross-defendant) Representation: Mr J Emmett (Express Direct Services Pty Limited ACN 069 778 847) B Bilinsky & Co (Express Direct Services Pty Limited ACN 069 778 847) DLA Piper Australia (Vermile Pty Limited ACN 007 130 092 trading as Austrans Container Service) Lander & Rogers (Coles Group Limited ACN 004 089 936) File Number(s): 2012/216276; 2012/216292 Publication restriction: No ex tempore Judgment 1On 18 June 2013 this Court made orders that Coles Proprietary Limited ("Coles") give discovery to Express Direct Services Proprietary Limited ("Express Direct"): "of the following documents:- * All documents evidencing orders given by Coles to Express Direct Services to collect goods on its behalf from 1 July 2010 to 1 July 2012. * All documents evidencing the collection of goods on behalf of Coles by Express Direct Services for the period 1 July 2010 to 1 July 2012. * All documents evidencing the delivery of goods on behalf of Coles by Express Direct Services for the period 1 July 2010 to 1 July 2012." 2There was no appearance by Coles on the occasion that the orders were made. Coles seeks to set aside the orders. No parties other than Express Direct take any interest in the outcome of the application. 3Coles' absence on the date of the orders was due to the oversight of its representatives, consequent upon a change of computer system. Apart from orders concerning costs, neither party seeks to be advantaged by either the absence of Coles on the last occasion or the existence of the orders for discovery. The application before me was thus treated by Express Direct and Coles as an application for discovery. 4The same application is also made in related proceedings 216276/2012, in which identical orders for discovery by Coles were also made in the absence of Coles. The parties agree that the orders made in one proceeding should also be made in the other. 5The causes of action in these proceedings are not straightforward. In general terms Chep Australia Limited ("Chep") sued Warehouse Distribution Proprietary Limited ("Warehouse"), for charges in respect of the hire of pallets in the period November 2011 to April 2012. Warehouse cross-claimed against Express Direct, claiming it was responsible for the hire costs. Express Direct likewise cross-claimed against Coles and Austrans Container Services ("Austrans"), attributing to them the responsibility for the hiring charges. 6Austrans has sought particulars from Express Direct of the pallets involved. Express Direct says that the early discovery by Coles is necessary in order that those particulars may be supplied. Express Direct relied on the decisions in Procter v Kalivis [2009] FCA 795 and Perpetual Trustees Victoria Limited v Dunlop & Ors [2009] VSC 331. 7Express Direct says that supplying proper particulars is part of the "formulation of the pleadings" referred to in [32] of the Perpetual decision and provides a basis for an order for discovery at this stage. 8The evidence in relation to the particulars required of Express Direct was minimal. It comprised a letter to Coles from the solicitor of Express Direct dated 28 June 2013, which stated: "With regard to the Orders for Discovery, these Orders were sought simply because all relevant information which would permit the First Cross-Defendant to provide particulars to the Second Cross-Defendant are in the possession of your client, the Third Cross-Defendant. All transactions involving Express Direct Services Pty Limited (First Cross-Defendant) and Coles Group Limited (Third Cross-Defendant) were computerised. Coles would give directions to Express Direct Services Pty Limited to collect goods on its behalf and to deliver them to a particular destination, in most cases to the depot of the Second Cross-Defendant. Once your client barred our client from accessing the computer, our client was unable to provide all the particulars sought by the Second Cross-Defendant. All the documents sought are in your client's control and possession. The particulars required are: 1 The date on which the instructions were given by Coles to Express Direct Services Pty Limited. 2 The name of the supplier from whom the goods (attached to the Plaintiff's pallets) were to be collected. 3 The description of the goods. 4 The destination to which Express Direct Services Pty Limited was to deliver the goods on behalf of Coles. 5 The date upon which the delivery was made. The above particulars are essential to the conduct of the case and, in particular, to any Defence to be filed on behalf of the Second Cross-Defendant. The reason why the date range for the orders was for a period commencing on 1 July 2010 is due to the fact that the particulars provided by the Plaintiff related to unidentified transactions prior to the date from which particulars were provided by the Plaintiff and referred to in its Statement of Claim. Accordingly, the Transportation Services Period is greater than the description contained in the Statement of Claim. The reason why it was necessary to seek an Order for Discovery was to determine relevant facts in issue which have not been disclosed either in the Plaintiffs claim or the Defence of the Third Cross-Defendant. An examination of the pleadings will not provide details of the required facts mentioned above. The categories for discovery are relevant to the central issue of whether the First Cross-Defendant carried any goods (attached to the Plaintiffs pallets) on behalf of the Third Cross-Defendant and upon instructions from the Third Cross-Defendant and, more particularly, when the goods were carried, the destination to which they were carried and on whose behalf they were carried. The Defence filed on 18 April 2013 does not disclose the various suppliers nor the location of the collection and delivery points. What has, in fact, been admitted by the Defendant is in general terms only and is not sufficiently particularised to enable the First Cross-Defendant to provide particulars to the Second Cross-Defendant. It is for this reason that discovery of the Third Cross-Defendant's records are required. The Second Cross-Defendant has been unable to file a Defence because of the inability of our client to provide particulars, details of which are only in the possession of your client." 9Express Direct obtained leave to tender further correspondence from Austrans during submissions. The first item was an email dated 1 February 2013 from DLA Piper, Austrans' solicitor. It stated: "The difficulty which our client now has in pleading to your client's cross-claim is that there are no particulars or information given from which our client could possibly identify the pallets the subject of your client's cross-claim. We don't know whether the pallets the subject of these claims are the same pallets as those in relation to which we have already corresponded with you. In order to consider and plead to your client's claims we urgently require particulars as follows: 1. Date, freight/pallets were delivered to Austrans; 2. Vendor/supplier name and number; 3. Copy supplier docket from the supplier to EDS; 4. Coles order number for each consignment; 5. Pallet quantity; 6. Copy signed pallet docket relating to each delivery to our client." 10There was apparently a response to this letter by the solicitors for Express Direct although it was not in evidence. A further letter dated 25 February 2013 was sent by DLA Piper to the solicitors of Express Direct in the following terms: "First, I note that the information provided relates only to the claim made in respect of the Rove account, which is the subject of proceeding number 216276/2012. We have received nothing in relation to the Warehouse Distribution claim, which is the subject of proceeding number 216292/2012. However, of much greater concern is the fact that the spreadsheet and information on the disks provided to us is virtually the same information as was provided on 30 April 2012. As you know, our client dealt with that claim in great detail, and, despite your clients' default, arranged for the transfer of the substantial proportion of pallets involved. Despite that position, your client appears to be seeking indemnity from our client in respect of all pallets for which your client may be liable to Chep (through Rove), in circumstances where there appears to be no relationship between the pallets which are the subject of the plaintiff's claim and those for which you have provided particulars to us. The plaintiff's claim relates to pallets outstanding on the Rove account from 2 July 2011 to 24 March 2012. The particulars of pallets which you have provided to us relate to pallets allegedly transferred to our client between December 2008 and March 2009. We require your client to establish the relationship between those pallets and those which are the subject of the plaintiff's claim. As matters stand, it is difficult to see any connection." 11It is common ground that on 27 February 2013 Express Direct was ordered to respond to the request for particulars by Austrans. The form of that order and the particular request of Austrans were not identified, although the court file indicates that Express Direct was ordered to "respond" to the requests of 1 and 25 February 2013 by 6 March 2013. There is no direct evidence of whether Express Direct complied with that order. 12The following matters can be noted. First, although the claim by the plaintiff, Chep, identifies a period from November 2011 to April 2012, which is also the "relevant period" in the cross-claim by Express Direct, nevertheless the discovery orders cover the two years from July 2010 to 1 July 2012 inclusive. 13I am not persuaded that there is any justification for a greater period than that pleaded and I propose to limit any orders made to the period November 2011 to April 2012 inclusive. 14Secondly, discovery is sought in respect of documents evidencing "orders" or "collection" or "delivery" of goods. The discovery is thus not confined to the pallets the subject of the claim, but to "good supplied". Express Direct says this is necessary because the "goods" are delivered on pallets and reveal matters about the pallets. Further, Express Direct submits and it is conceded by Coles that there is no suggestion that discovery of the documents sought is in any sense oppressive. 15As it is not suggested that it is oppressive to give the discovery sought, I am minded to make an order for discovery at this stage, but only insofar as that discovery is in respect of issues relevant on the pleadings. Significantly, I am not persuaded that any of the documents sought from Coles would assist Express Direct to respond to the request of the Austrans' solicitor of 25 February 2013. 16Bearing in mind the content of the email of 1 February 2013, and the need for Express Direct to prove a causal link between the pallet hire charges of Chep and the pallets delivered to Austrans, I propose to vary the orders made on 18 June 2013, and order Coles to give discovery to Express Direct of documents bearing a date in the period November 2011 to April 2012 inclusive, which evidence delivery of pallets or Coles goods by Express Direct to Austrans. 17As to costs, I think that Austrans should bear its own costs, but that the costs of Coles and Express Direct should be borne by the unsuccessful party in the proceedings between them. 18Accordingly, the orders of the Court are: (1)Order Coles Group Limited give discovery to Express Direct Service of all documents bearing a date November 2011 to April 2012 inclusive, which evidence delivery of Coles Group Limited goods or of pallets by Express Direct Service to Austrans Container Service. (2)Austrans Container Service to bear its own costs of the applications but as between Coles Group Limited and Express Direct Service the costs of the applications be costs of the second cross-claim recoverable by Coles Group Limited or Express Direct Service only insofar as that party obtains a favourable order against the other for the costs of the second cross-claim. ********** 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. Decision last updated: 20 January 2014