Supreme Court New South Wales Medium Neutral Citation: Imaging Partners Online Limited -v- Imaging Independently Pty Limited [2014] NSWSC 831 Hearing dates: 30 May 2014 & 13 June 2014 Decision date: 20 June 2014 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: Defendant is to discover any documents describing or constituting the methodology of, source of information for, or results of the re-reporting of cases by the defendant originally reported by the plaintiff during the period of the Head Contract Catchwords: PROCEDURE - application for discovery - no issue of principle- relevance to a fact in issue - reg 21.2 of the Uniform Civil Procedure Rules 2005 (NSW)- s 56 of the Civil Procedure Act 2005 (NSW) Category: Procedural and other rulings Parties: Imaging Partners Online Limited - Plaintiff Imaging Independently Pty Limited - Defendant Representation: Counsel: W.G. Muddle SC - Plaintiff N. O'Brien QC - 30 May 2014 - Defendant S. Gray - 13 June 2014 - Defendant Solicitors: W. Advisers - Plaintiff Gadens Lawyers - Defendant File Number(s): 2013/229871 Judgment 1HIS HONOUR: By Notice of Motion filed on 26 May 2014, the plaintiff sought discovery from the defendant of documents identified in a fairly extensive set of categories. When the Motion came on for hearing, both parties were represented by respected senior counsel. After an exchange between bench and bar discussions took place between the parties with a view to them agreeing on the ambit of necessary discovery with a view to avoiding or at least minimising intervention by the Court. 2This process ultimately took some days, but, save in respect of one category, it resulted in agreement between the parties on the ambit of discovery in respect of which an order will be made accordingly. It is only on the disputed category that the Court is required to rule. 3UCPR Part 21 concerns Discovery and inspection of documents. UCPR Part 21 Rule 21.1(2) provides: For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence. 4UCPR Part 21, Rule 21.2(1) provides that the Court may order a party to give discovery of documents within a class or classes specified in the order. 5UCPR Part 21, Rule 21.2(4) provides: An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue. 6In addition, s 56(1)-(2) of the Civil Procedure Act 2005 (NSW) are relevant because they provide that: (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. 7As appears below, the category concerned contains two subcategories, only one of which is in dispute. 8For the reasons which follow, I consider that the subcategory in dispute calls for documents not relevant to a fact in issue. I am presently not satisfied that an order for discovery of them will conduce to the just, quick, and cheap resolution of the proceedings. 9This conclusion should not be taken to mean that the plaintiff may not have a legitimate forensic purpose in seeking to obtain those documents. 10Both parties provide radiology services. A Victorian state organisation called Eastern Health, which apparently administers hospitals in that State, contracted with the defendant to provide radiology services ("the head contract") and it in turn, subcontracted with the plaintiff to provide after hours radiology services ("the sub-contract"). 11The head contract provided for an extension if Eastern Health, acting reasonably was satisfied with the services provided under it. The sub-contract provided that it would be extended if the head contract was. 12At or about the time of the contemplated extension, the defendant and Eastern Health entered into a new head contract, but no new sub-contract was made, because, so says the defendant, Eastern Health was unhappy with the component of services provided under the head contract by way of the plaintiff's performance of the sub-contract, an assessment with which the defendant says it agreed. This alleged below par performance was, it is said, manifested amongst others, by both the plaintiff and the defendant re-reporting an unacceptably high number of cases originally erroneously diagnosed by the plaintiff. 13The plaintiff's case has two prongs. 14The first prong is an assertion that Eastern Health, acting reasonably, was in fact satisfied with the performance under the head contract, with the consequence that the head contract was in fact extended, and with the further consequence that so was the sub-contract. 15The second prong is an assertion by the plaintiff that if, contrary to its primary thesis, Eastern Health was not so satisfied, it (Eastern Health) was in that state of mind because the defendant wrongly failed to disabuse Eastern Health of its misapprehensions as to the plaintiff's performance, that failure being a breach by the defendant of obligations (including obligations of good faith) implied by the sub-contract and the circumstances of the parties' relationship. 16Inherent in the second prong is the assertion that the plaintiff's performance was adequate. No element of it concerns the defendant's performance. Self-evidently, Eastern Health was satisfied with the defendant's performance, and it is not part of the plaintiff's case to impeach that performance. After all, Eastern Health later further contracted with the defendant. 17The full category is: "Any documents describing or constituting the methodology of, source of information for, or results of the re-reporting of cases by the defendant (whether originally reported by the plaintiff or the defendant) during the period of the Head Contract". 18As framed, this requires discovery by the defendant not only of documents which disclose its re-reporting of the plaintiff's cases (which are plainly relevant to a fact in issue, namely the adequacy of its performance) but the re-reporting of its own, presumably based on the notion that the number of cases erroneously originally reported by the defendant was at least as high as that of the plaintiff. 19The documents in the subcategory concerning the defendant's re-reporting of the plaintiff's cases are relevant to the adequacy of the plaintiff's performance which is a fact in issue, and the parties are agreed that these must be discovered. 20However, this is not the case with respect to documents concerning the defendant's re-reporting of its own cases. 21If Eastern Health was satisfied, the matter ends there because it is not suggested by the defendant that if this was the case its satisfaction was not reasonable or not in good faith. The defendant's performance is irrelevant to this. 22If Eastern Health was not satisfied, it is contended that this was because of a wrong perception of the plaintiff's performance, not of the defendant's. The level of the defendant's performance is not a fact in issue. Also, whether the plaintiff's performance was indeed unsatisfactory is to be determined with respect to its services not those of the defendant. 23It follows that the defendant is to discover only: "Any documents describing or constituting the methodology of, source of information for, or results of the re-reporting of cases by the defendant originally reported by the plaintiff during the period of the Head Contract". 24I observe that a component of another category sought by the plaintiff is the same as the category I have found the defendant is not obliged to discover. The parties approached the matter that a ruling on one would determine the other. 25I make the Short Minutes of Order which I have initialled, dated today's date and place with the papers. ********** 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: 23 June 2014