Supreme Court of New South Wales On 11 April 2011, the defendant, who now resides in New South Wales, commenced proceedings in the Dust Diseases Tribunal ( the DDT ) against the plaintiff, a New Zealand company, claiming that the plaintiff had negligently manufactured and supplied asbestos building products which had released asbestos dust and fibre which he had inhaled while working with his father from about 1968 to 1974 in New Zealand ( the DDT Statement of Claim ). The defendant purported to serve the DDT Statement of Claim on the plaintiff at its registered office in New Zealand. By summons filed in this Court on 21 November 2011, the plaintiff seeks an order setting aside service of the DDT Statement of Claim or an order staying the proceedings on the basis that the DDT is a clearly inappropriate forum for the determination of the defendant's claim.-The orders I make are: (1) Set aside service of the defendant's statement of claim filed in the Dust Diseases Tribunal, proceedings No. DDT 96 of 2011 ( the DDT Statement of Claim ). (2) Declare that the Dust Diseases Tribunal has no power to hear or decide proceedings No. DDT 96 of 2011. (3) Declare that the Dust Diseases Tribunal is not a clearly inappropriate forum for the determination of the defendant's claim for damages against the plaintiff for damages for dust-related injuries as set out in the DDT Statement of Claim. (4) Order that, unless an application for a different order is made within seven days, each party is to pay their own costs of these proceedings. (5) Direct that, unless an application for a different form of direction is made within seven days, the defendant is to include a copy of these reasons, for the attention of the Registrar, together with any originating process in this Court in which substantially the same allegations are made as in the DDT Statement of Claim.

Studorp Ltd v Lance John Robinson [2012] NSWSC 148 (1 March 2012)

Last Updated: 6 March 2012

Supreme Court New South Wales

Case Title:	Studorp Ltd v Lance John Robinson
Medium Neutral Citation:	[2012] NSWSC 148
Hearing Date(s):	24 February 2012
Decision Date:	01 March 2012
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Set aside service of the defendant's statement of claim filed in the Dust Diseases Tribunal, proceedings No. DDT 96 of 2011 (the DDT Statement of Claim). (2) Declare that the Dust Diseases Tribunal has no power to hear or decide proceedings No. DDT 96 of 2011. (3) Declare that the Dust Diseases Tribunal is not a clearly inappropriate forum for the determination of the defendant's claim for damages against the plaintiff for damages for dust-related injuries as set out in the DDT Statement of Claim. (4) Order that, unless an application for a different order is made within seven days, each party is to pay their own costs of these proceedings. (5) Direct that, unless an application for a different form of direction is made within seven days, the defendant is to include a copy of these reasons, for the attention of the Registrar, together with any originating process in this Court in which substantially the same allegations are made as in the DDT Statement of Claim.
Catchwords:	PRACTICE AND PROCEDURE - whether process of the Dust Diseases Tribunal can be served outside of Australia - procedure for serving process of the Dust Diseases Tribunal outside of Australia - transfer of proceedings - distinction between the right to serve outside jurisdiction and the jurisdiction to transfer proceedings to another court PRIVATE INTERNATIONAL LAW - stay of proceedings - choice of law - whether the Dust Diseases Tribunal is an inappropriate forum - factors in favour of, and against the Dust Diseases Tribunal being an inappropriate forum
Legislation Cited:	Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulation 2007 Interpretation Act 1987 Jurisdiction of Courts (Cross-vesting) Act 1987 Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005
Cases Cited:	BHP Billiton v Schultz [2004] HCA 61; 221 CLR 400 Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 James Hardie & Coy Pty Limited v Barry [2000] NSWCA 353; 50 NSWLR 357 James Hardie Industries v Grigor (1998) 45 NSWLR 20 Puttick v Tenon Limited [2008] HCA 54; 238 CLR 265 Regie Nationale des Usines Renault SA v Zhang[2002] HCA 10; 210 CLR 491 Stavar v Caltex Refineries (NSW) Pty Limited [2008] NSWDDT 22 Voth v Manildra Flour Mills [1990] HCA 55; 171 CLR 538
Texts Cited:
Category:	Principal judgment
Parties:	Studorp Ltd - Plaintiff Lance John Robinson - Defendant
Representation
- Counsel:	G M Watson SC with J C Sheller - Plaintiff P C B Semmler QC with S Tzouganatos - Defendants
- Solicitors:	DLA Piper - Plaintiff Turner Freeman - Defendant
File number(s):	2011/00372072
Publication Restriction:

JUDGMENT

1. On 11 April 2011, the defendant, who now resides in New South Wales, commenced proceedings in the Dust Diseases Tribunal ( the DDT ) against the plaintiff, a New Zealand company, claiming that the plaintiff had negligently manufactured and supplied asbestos building products which had released asbestos dust and fibre which he had inhaled while working with his father from about 1968 to 1974 in New Zealand ( the DDT Statement of Claim ).

2. The defendant purported to serve the DDT Statement of Claim on the plaintiff at its registered office in New Zealand.

3. By summons filed in this Court on 21 November 2011, the plaintiff seeks an order setting aside service of the DDT Statement of Claim or an order staying the proceedings on the basis that the DDT is a clearly inappropriate forum for the determination of the defendant's claim.

Relevant statutory provisions

4. The statutory provisions relied upon by the parties, or which are otherwise germane, are set out below.

5. Rule 1.5 of the UCPR provides:

" 1.5 Application of these rules

(1) Subject to subrule (2), these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule.

(2) In respect of each court referred to in Column 1 of Schedule 1, civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of each provision of these rules referred to in Column 4 of that Schedule in respect of those proceedings.

(3) The exclusion of civil proceedings from any such provision is subject to such conditions, limitations or exceptions as are specified in Column 4 of Schedule 1 in relation to that provision."

6. In respect of the DDT, Schedule 1 relevantly provides:

Column 1	Column 2	Column 3	Column 4
Dust Diseases Tribunal	All civil proceedings	Part 9	Part 15, Division 3 Part 21 Part 22

7. Part 11 of the UCPR provides for service of documents outside Australia. It relevantly provides:

" Part 11 Service of documents outside Australia and service of external process

Division 1 General

11.1 Application of Part

(1) This Part applies to proceedings in the Supreme Court.

(2) For the purposes of this Part, a reference to Australia includes a reference to the external Territories.

11.2 Cases for service of originating process

(1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6.

(2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention.

11.3 Notice to the defendant served outside Australia

(1) If originating process is intended to be served on a defendant outside Australia, a notice to that effect must be included in the originating process.

...

11.6 Mode of service

A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.

11.7 Setting aside originating process served outside Australia

(1) The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia.

(2) Without limiting subrule (1), the Supreme Court may make an order under this rule:

(a) on the ground that the service of the originating process is not authorised by these rules, or

(b) on the ground that the court is an inappropriate forum for the trial of the proceedings."

8. Schedule 6 relevantly provides that originating process may be served outside Australia in certain circumstances which include:

"(e) if the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in New South Wales caused by a tortious act or omission wherever occurring..."

9. The Dust Diseases Tribunal Act 1989 ( the DDT Act ) relevantly provides for the jurisdiction and functions of the DDT as follows:

" 10 Jurisdiction and functions of the Tribunal

(1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12.

(2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act.

...

(4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.

11 Claims for damages for dust diseases etc to be brought under this Act

(1) If:

(a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and

(b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and

(c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death,

proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal ."

[Emphasis added]

10. "Decision" is defined by s 3 of the DDT Act including "judgment, order and ruling".

11. Section 25(3) of the DDT Act provides:

"(3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties."

12. Section 12 of the DDT Act provides that where proceedings of the kind referred to in s 11(1) are brought or are pending in the Supreme Court, the Registrar of that Court must transfer the proceedings to the DDT.

13. Section 32H of the DDT Act confers a regulation-making power on the Governor with respect to a list of topics, none of which refers to service of originating process outside the jurisdiction.

14. Clause 19 of the Dust Diseases Tribunal Regulation 2007 ( DDT Regulation ) relevantly provides:

" 19 Effect of claim being subject to claims resolution process

(1) While a claim is subject to the claims resolution process:

(a) the parties to the claim must comply with the provisions of this Part, and

(b) proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal, and

(c) the claim is not subject to the provisions of rules of court, or any direction or order of the Tribunal under a provision of the Act, any other Act or rules of court, as to any steps to be taken in proceedings on the claim or for the referral of the claim for alternative dispute resolution, such as mediation.

(2) This clause does not affect the application of the practice and procedures of the Tribunal with respect to:

(a) the service of the statement of claim on the defendant, including the service of the statement of claim outside Australia , or..."

[Emphasis added.]

15. Clause 21 of the DDT Regulation relevantly provides:

" 21 Service of documents

(1) Rules 10.5-10.19, 10.21 and 10.22 of the Uniform Civil Procedure Rules 2005 apply to and in respect of the service of documents for the purposes of this Part in the same way as they apply to and in respect of the service of documents for the purposes of proceedings in the Tribunal.

(2) In the case of a defendant who is outside Australia, any document to be served for the purposes of this Part may be served on the defendant:

(a) in the same manner as that in which the relevant statement of claim was served on the defendant , or

(b) in such other manner as the parties may agree."

[Emphasis added.]

Whether service was authorised and properly effected and whether New South Wales is an inappropriate forum: the parties' arguments

16. The plaintiff submitted that although Part 11 is not referred to in Schedule 1 of the UCPR, it applies only to proceedings in the Supreme Court. Accordingly UCPR 1.5 is not sufficient to authorise effective service of the originating process in the DDT outside the jurisdiction if the plaintiff does not submit to the DDT's jurisdiction.

17. Furthermore, the plaintiff submitted that s 10(4) of the DDT Act was insufficient to confer the Supreme Court's power in Part 11 of the UCPR on the DDT. It contended that the power to "make decisions", conferred on the DDT in s 10(4) does not extend to confer an entitlement on a party to serve the DDT's originating process outside Australia, and thereby invoke the DDT's jurisdiction.

18. It also submitted that the conferral on the DDT of exclusive jurisdiction in respect of claims for damages for dust-related conditions did not prevent this Court from setting aside service of the DDT Statement of Claim.

19. The plaintiff submitted that the notice requirements in UCPR 11.3(1) for service outside Australia had not been complied with.

20. The plaintiff contended that this Court should make an order under UCPR 11.7, either on the ground that service was not effected pursuant to the UCPR or because New South Wales was an inappropriate forum.

21. It contended that the DDT was an inappropriate forum by reason of the following:

(1) New Zealand law is the governing law of the tort because all the exposures to asbestos dust for which the defendant alleges the plaintiff was responsible occurred in New Zealand;

(2) the defendant's solicitor, who conducts litigation in seven different jurisdictions including New Zealand, has a professional address in Queensland;

(3) although the defendant, his father and his general practitioner live in New South Wales, they all live close to the Queensland border and therefore they are significantly closer to Brisbane than to Sydney;

(4) the defendant's treating clinicians live in Queensland;

(5) the plaintiff and its records are in New Zealand;

(6) the plaintiff's liability witnesses, if any, are likely to reside in New Zealand and are also likely to be elderly;

(7) there is no basis to assume that the DDT has expertise over that of its counterparts in Queensland or New Zealand; and

(8) it is immaterial that two out of three of the plaintiff's current directors live in the Sydney metropolitan area since the acts and omissions alleged against the plaintiff occurred from about 1968 to about 1974.

22. The plaintiff relied on Voth v Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538 (Voth) in which the High Court held that the fact that Missouri was the place of the tort, its law was the governing law by which the substantive issues in the case were to be determined, and it was also where Mr Voth (against whom the allegations were made) lived outweighed the fact that Manildra Four Mills, the plaintiff, was a company that was registered and operated in New South Wales.

23. The plaintiff submitted that the factors that connect the defendant to New South Wales were incidental and of less weight than the factors that connect the proceedings with New Zealand.

24. The plaintiff relied on the unchallenged expert report of Mr Hodder SC as to matters of New Zealand law. Mr Hodder gave evidence that courts in New Zealand regard themselves as applying New Zealand common law, which is historically derived from the common law of England. Because of the modern statutory bar in New Zealand on common law claims for damages for personal injury, principles of negligence have in that country have developed in recent years mostly in the context of negligence claims against councils which have inspected defective buildings. He opined that while Australian cases are cited in New Zealand courts, it is the common law of England which is still the major influence on the common law of New Zealand. The justice and reasonableness of imposing a duty tend to be of greater significance in determining the existence and scope of a duty of care than foreseeability, which has greater significance in Australia. Mr Hodder also opined on the differences in matters such as breach, causation and damages between Australian law and New Zealand law.

25. The plaintiff submitted that although the question whether a duty of care was owed might not be in issue per se in these proceedings, the scope and extent of any duty and the standard of care will be important. Accordingly the differences between the Australian and New Zealand common law of negligence may be significant. The plaintiff relied on the following passage from James Hardie Industries v Grigor (1998) 45 NSWLR 20 (Grigor) at 37, per Spigelman CJ:

"Once it is determined that the place of the tort is New Zealand this identifies immediately a significant source of prejudice by reason of the need to prove the law of New Zealand as a matter of fact, by means of expert evidence. At this stage it is not possible to say whether or not there will be a conflict of evidence on this matter. However, on the materials before the Court at present, it does

not appear that New Zealand law is sufficiently certain to determine how readily the applicable law will be able to be identified."

26. The plaintiff relied on the passage from the plurality's reasons in Voth at 566 and placed emphasis on the first part of the following sentence:

"[t]he substantive law of the forum is a very significant factor in the exercise of the court's discretion, but the court should not focus upon that factor to the exclusion of all others."

27. The plaintiff accepted that the DDT would, under the following circumstances, have jurisdiction to hear and determine the defendant's claim. It said that it would be necessary, in circumstances such as the present where the plaintiff does not submit to the jurisdiction of the DDT, for the defendant to commence proceedings in this Court and then have issues of service out of the jurisdiction resolved by this Court before the Registrar transferred the proceedings to the DDT, as the Registrar is obliged to do under s 12(1) of the DDT Act.

28. The defendant submitted that the fact that there is no mention of Part 11 in the fourth column of Schedule 1 of the UCPR shows that there was no intention to deprive the DDT of jurisdiction with respect to service of its originating processes out of the jurisdiction. Furthermore it contended that the intention of s 10(4) was to confer all the procedural and substantive jurisdiction of the Supreme Court on the DDT, subject to exceptions such as the appellate jurisdiction.

29. The defendant argued that the combined effect of s 10 and s 11 of the DDT Act is to confer exclusive jurisdiction on the DDT to permit service of originating processes claiming damages for asbestos-related diseases. He submitted that to permit the procedure set out above (namely, commencement in this Court to attract the powers in Part 11 of the UCPR and then have the matter transferred to the DDT) would subvert the express terms of s 11, and in particular the prohibition that proceedings for damages in respect of dust-related conditions:

"may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal ."

[Emphasis added.]

30. The defendant also called in aid DDT Regulations 19 and 20 and contended that there was a clear implication that the DDT had power to authorise service outside the jurisdiction. The defendant did, however, concede that his argument in this respect turned on my construction of s 10(4).

31. The defendant sought to distinguish the right of a party to serve originating process outside Australia from the jurisdiction to make decisions under theJurisdiction of Courts (Cross-vesting) Act 1987 to remove a proceeding from a State Court or Tribunal and transfer them to another jurisdiction within Australia, which were held to be outside the jurisdiction of the DDT: James Hardie & Coy Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at [56] and [68], per Mason P, with whom Spigelman CJ and Priestley JA relevantly agreed. He submitted that service of process outside the jurisdiction was an integral part of the decision-making process of a court or tribunal and that the jurisdiction to transfer proceedings to another court was of an entirely different order.

32. The defendant argued that the originating process had been served in compliance with Part 11 of the UCPR since it had been served in accordance with New Zealand Law, by service at the plaintiff's registered office. It said that although he had mistakenly attached a notice to the DDT Statement of Claim that purported to be a notice under the Service and Execution of Process Act 1992 (Cth) this was a mere procedural irregularity which ought be disregarded since it was obvious from the face of the document that the originating process was intended to be served on the plaintiff in New Zealand. Furthermore there could be no suggestion that the plaintiff had been prejudiced because it had commenced these proceedings in this Court to set aside the service. He submitted that if I were otherwise satisfied that service was effective, I ought to treat the error as an irregularity under s 63(2) of the Civil Procedure Act 2005.

33. The defendant argued that the plaintiff had not established that the DDT is an inappropriate forum for the trial of the proceedings within the meaning of UCPR 11.7(2)(b).

34. The defendant contended that the following factors were relevant:

(1) although the plaintiff is a New Zealand company, its parent and related companies (ABN 60 Pty Limited, formerly James Hardie Industries Limited and Amaca Pty Limited, formerly James Hardie & Co Pty Limited) are registered in New South Wales;

(2) one of the plaintiff's three directors resides in Chicago, but the other two live in New South Wales, in metropolitan sydney;

(3) a critical witness on liability, his father, lives in New South Wales and all witnesses on damages (the defendant, his wife and his clinicians) live in Northern New South Wales or Queensland;

(4) the defendant's physical condition is compromised by chronic chest pain, shortness of breath and fatigue as a result of asbestos-related pleural disease. He is unable to drive for any period of time. His symptoms have emerged only in New South Wales and Queensland;

(5) the defendant suffered damage in New South Wales;

(6) the DDT travels to Brisbane on circuit; and

(7) the DDT requires parties before it to engage in mediation.

35. The defendant also submitted that s 25(3) of the DDT Act was of particular juridical advantage to him since it saved considerable time and expense. He submitted that this provision has been found to be procedural (by Mason P in Grigor at 43, with whom Beazley JA agreed) and therefore the defendant will get the benefit of the provision in the DDT even if the governing law is that of New Zealand.

36. The defendant submitted that test to be applied is whether the DDT is a clearly inappropriate forum and not whether there is some comparatively appropriate forum: Voth at 559, per Mason CJ, Deane, Dawson and Gaudron JJ. The test focuses on the advantages and disadvantages for the continuation of the proceedings in the DDT rather than on the need to make a comparative judgment. However the availability of relief in the foreign forum is a relevant factor in deciding whether this court is a clearly inappropriate forum: Voth at 558, per Mason CJ, Deane, Dawson and Gaudron JJ.

37. The defendant also relied on Puttick v Tenon Limited [2008] HCA 54; (2008) 238 CLR 265 (Puttick) and submitted that even if the applicable law is the law of New Zealand, it does not follow that the DDT is an inappropriate forum. French CJ, Gummow, Hayne and Kiefel JJ said, at [31]:

"If the tort which Mrs Puttick alleges Tenon committed against her late husband was shown not to be a foreign tort, Tenon's claim to a stay of proceedings would have been greatly weakened. But it by no means follows that showing that the tort which is alleged is, or may be, governed by a law other than the law of the forum demonstrates that the chosen forum is clearly inappropriate to try the action. The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction. Moreover, considerations of geographical proximity and essential similarities between legal systems, as well as the legislative provisions now made for the determination of some trans-Tasman litigation, all point against treating the identification of New Zealand law as the lex causae as a sufficient basis on which to conclude that an Australian court is a clearly inappropriate forum to try a dispute. "

38. The plaintiff submitted in reply that I should not act on the basis that it had been determined that s 25(3) of the DDT was procedural since it was obiter inGrigor and had been doubted by Callinan J, as appears from the following passage in BHP Billiton v Schultz [2004] HCA 61; (2004) 221 CLR 400 at 491:

"Sections 23, 25, 25A and 25B [of the DDT Act] do more than relax the rules of evidence. They alter, or at least would allow the Tribunal to depart from theaudi alteram partem rule. Their effect is to enable the Tribunal to use against a party evidence and findings which it has had no opportunity of testing or controverting. However they may be expressed, provisions capable of producing that outcome, of denying natural justice, do not have the appearance of being merely procedural ." [Emphasis added.]

39. The plaintiff also relied on a decision of O'Meally P in the DDT, Stavar v Caltex Refineries (NSW) Pty Limited [2008] NSWDDT 22. The circumstances of that case occurred wholly within the State of Queensland. O'Meally P proceeded, on the basis of the passage from BHP Billiton set out above, that s 25(3) was substantive. O'Meally P also considered s 25B of the DDT Act and summarised the divergence of judicial opinion in the following terms:

"It has frequently been held in the Tribunal that all asbestos exposure during an acceptable latency period makes a material contribution to mesothelioma. That has been the subject of determination by judges of the Tribunal under s 25B of the Act. In James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 21 NSWCCR 150, Spigelman CJ at 157 [16] expressed the view that s 25B is substantive in nature. The same view was expressed at [123] by Priestly JA. Mason P, on the other hand, thought at [78] it was procedural. In Schultz (supra), Callinan J, in the passage already quoted, expressed the view that s 25B was substantive. It might be said that these views are obiter , but they appear in considered appellate judgments. Unless and until a contrary view is expressed, I feel constrained to hold that s 25B is substantive in nature and the plaintiff may not rely upon findings in earlier proceedings that mesothelioma is an indivisible injury to which all asbestos exposure makes a material contribution."

40. The plaintiff also submitted in reply that the mandatory mediation in the DDT was a neutral factor since he was instructed that his client would participate in mediation at any time convenient to the defendant.

41. The plaintiff also submitted in reply that I should ignore the fact that the DDT goes on circuit to Queensland since this amounted to an "extraordinary aspect" of its powers (see Grigor at 43C per Mason P).

Whether the plaintiff was served within the rules

42. I prefer the plaintiff's construction of Rule 1.5, Schedule 1 and Part 11 of the UCPR. The fact that the rule-making body saw fit to provide expressly that Part 11 applies to proceedings in the Supreme Court is sufficient, in my view, to displace any inference that the absence of reference to Part 11 in Column 4 of Schedule 1 means that it applies to the DDT.

43. I do not consider that s 10(4) of the DDT Act has the effect for which the defendant contends. To provide, as Parliament has done, that the DDT has the "same power to make decisions as the Supreme Court would" is not to confer all the jurisdiction and powers of the Supreme Court, together with the rights of parties who file originating process in this Court, but merely the power to make "decisions". Although "decision" includes "judgment, order and ruling", each of these matters relates to an exercise of judicial power, rather a privilege of a party to serve originating process in a particular way and thereby invoke exterritorial jurisdiction. UCPR 11.2, in effect, confers a right on a party to invoke the Court's jurisdiction by serving originating process outside the jurisdiction if the matter concerns certain subject matters which have a connection with the jurisdiction. For these reasons I do not consider s 10(4) authorises the DDT to exercise jurisdiction in circumstance where its originating process has been served outside Australia, in circumstances where the named defendant does not appear.

44. Nor do I consider that the DDT Regulations, which on their face, appear to contemplate that a statement of claim can be served outside the jurisdiction, can take the matter any further. In so far as they purport to authorise such service on a party who objects to such jurisdiction, they may be beyond the regulation-making power in s 32H of the DDT Act and, if so, would be read down to preserve their validity in accordance with s 32 of the Interpretation Act 1987 so as to authorise service on a party who subsequently appears in the DDT and can therefore be taken to have voluntarily submitted to the jurisdiction of the DDT. They are not, of themselves, sufficient to override the statutory provisions referred to above.

45. As the submissions of the parties highlight, there is some tension between the following three provisions: prohibition against a party bringing proceedings for damages for a dust-related condition in s 11 of the DDT Act; the express contemplation that such might occur in s 12 of the DDT Act; and UCPR, Part 11, which I have construed as applying only to proceedings in this Court.

46. Legislation is to be read as a whole. It is to be presumed that "Parliament intended its legislation to operate rationally, efficiently and justly, together":Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 724, per Kirby P.

47. I consider that the prohibition contained in s 11 ought to be read as qualified by UCPR Part 11. In other words, a party may commence proceedings in this Court for damages for a dust-related condition in order to obtain the right to serve the originating process outside Australia and have this Court's jurisdiction invoked if the defendant in that process is not prepared to submit to the jurisdiction of the DDT.

48. The Registrar's obligation under s 12(1) of the DDT Act to transfer any proceedings of that nature commenced in this Court must, in my view, be qualified by this Court's exclusive jurisdiction to give effect to service of the originating process outside Australia.

49. Section 12(1) of the DDT Act should, in my view, be read as if it expressly provided that the obligation to transfer such proceedings to the DDT is subject to the determination by this Court of any questions of service of originating process outside the jurisdiction. The exclusive jurisdiction of the DDT is not compromised or trenched in any way by the interpretation I have given these provisions.

50. It follows from what I have said above that the defendant would have been entitled to serve originating process on the plaintiff in New Zealand within the UCPR by complying with New Zealand law as to service, had it been filed in this Court rather than the DDT.

51. Accordingly, the DDT Statement of Claim was not served in accordance with the rules.

52. Had it been an originating process of this Court, then I consider that it was properly served. The defendant's claim fell within Schedule 6(e) and service was effected pursuant to New Zealand law. This is because damage for the purposes of Schedule 6(e) is not confined to immediate physical injury or loss suffered when the cause of action first accrued. A claimant who suffers damage within New South Wales by, for example, incurring medical expenses consequent on physical injury comes within Schedule 6(e).

53. The notice appended to the DDT Statement of Claim did not comply with the UCPR. However, had this been the only instance of procedural irregularity, I would have been disposed to treat it as such pursuant to s 63 of the Civil Procedure Act 2005 and to find that the rules had been complied with.

Is the DDT an inappropriate forum?

54. Even if the defendant had commenced proceedings in this Court, served the originating process in accordance with UCPR 11.2 and made any application for leave to proceed under UCPR 11.4, the plaintiff could still have moved to set aside the originating process on the ground that this Court is an inappropriate forum for the trial of the proceedings: UCPR 11.7(2)(b). The plaintiff accepted that if I find that the service of the DDT originating process in New Zealand was invalid and insufficient to invoke the jurisdiction of the DDT, it would nonetheless be appropriate for me to determine whether the DDT was an inappropriate forum since I have heard evidence and detailed submissions on the question. Furthermore, should the defendant decide to adopt the course set out above, there will already be a determination of that issue.

55. I accept the defendant's submissions that it is likely that he and his father will both be crucial witnesses on liability. Important witnesses on damages, including his wife and clinicians, live in, or near, New South Wales.

56. Although the defendant did not in terms concede that the proper law of the tort was the law of New Zealand, his counsel was unable to identify any other possibility. He accepted that the test was not where the damage accrued, but rather, where the wrong had occurred. He could point to no alleged wrongdoing by the plaintiff which did not occur in New Zealand. It is well established that it is the acts of the plaintiff and not their consequences that must be the focus of attention in determining the proper law of the tort: Voth at 567.

57. I consider that the law of New Zealand is the substantive law that must be applied: Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10;(2002) 210 CLR 491; cf Puttick where the exposure occurred in Malaysia, Belgium and New Zealand and therefore it was not possible to identify thelex loci delicti with any certainty. This means that New Zealand law must be proved as a matter of fact if the proceedings are to be heard and determined in the DDT. As the passage set out above in Puttick establishes, this is not a determinative factor against the local tribunal, although, as the High Court said in Voth , it is a significant one.

58. It appears from the passage from Stavar set out above that there is a real prospect that s 23, s 25, s 25A and s 25B of the DDT Act will be found to be substantive and therefore inapplicable to the defendant's claim against the plaintiff in the DDT, since they do not form part of the law of New Zealand, which is the governing law of the tort. In light of the current state of the law, I cannot assume that the defendants will have the benefit of these provisions in the DDT.

59. I turn therefore to consider the factors relevant to the determination of whether the DDT is an inappropriate forum. In favour of the proposition are:

(1) the governing law is the law of New Zealand which accordingly will have to be proved as a matter of fact in the DDT;

(2) the plaintiff's witnesses on liability are likely to be elderly and located in New Zealand;

(3) the plaintiff's documents are in New Zealand; and

(4) there is a real prospect that the evidentiary provisions available in local proceedings in the DDT will be regarded as substantive and therefore would not be available in the proceeding if it were heard in the DDT. The usual modus operandi of the DDT would be accordingly not apply if these proceedings were heard there.

60. On the other hand the following considerations tend point to against the DDT being an inappropriate forum:

(1) the defendant, his father, his wife, his general practitioner and treating clinicians live in or near New South Wales;

(2) although there are distinctions between the law of negligence as it has developed in New South Wales and in New Zealand law, these distinctions are likely to be reasonably subtle having regard to their both being derived from the common law of England. They are unlikely to produce significantly more complexity than the differences in the law of torts in various States of Australia, which are occasioned by different statutory regimes, against the background of the common law; and

(3) although the plaintiff is a New Zealand company, its parent company and associated company are registered in New South Wales.

61. On balance I do not consider the governing law of the tort to be sufficient to outweigh the three factors listed above as tending to point against the DDT being an inappropriate forum.

62. Leaving aside the question of service which has been dealt with separately above, I am not satisfied that the DDT is an inappropriate forum, much less a clearly appropriate one.

63. The orders which I consider dispose of the present contest between the parties are:

(1) Set aside service of the defendant's statement of claim filed in the Dust Diseases Tribunal, proceedings No. DDT 96 of 2011 ( the DDT Statement of Claim ).

(2) Declare that the Dust Diseases Tribunal has no power to hear or decide proceedings No. DDT 96 of 2011.

(3) Declare that the Dust Diseases Tribunal is not a clearly inappropriate forum for the determination of the defendant's claim for damages against the plaintiff for damages for dust-related injuries as set out in the DDT Statement of Claim.

(4) Each party is to pay their own costs of these proceedings.

(5) Direct that the defendant is to include a copy of these reasons, for the attention of the Registrar, together with any originating process in this Court in which substantially the same allegations are made as in the DDT Statement of Claim.

64. At the conclusion of the hearing I foreshadowed that I would give the parties an opportunity to be heard on any order that concerns the course that the defendant might take in light of these reasons. Accordingly, I shall defer making the direction in paragraph 5 above to permit the parties to address me on the form of that direction.

65. The draft order set out in paragraph 4 above has been proposed without the benefit of hearing from the parties. Accordingly that order will only be made if no application is made for a different order, or if, after hearing from the parties, I am nonetheless satisfied that it is an appropriate one.

66. The orders I make are:

(1) Set aside service of the defendant's statement of claim filed in the Dust Diseases Tribunal, proceedings No. DDT 96 of 2011 ( the DDT Statement of Claim ).

(2) Declare that the Dust Diseases Tribunal has no power to hear or decide proceedings No. DDT 96 of 2011.

(3) Declare that the Dust Diseases Tribunal is not a clearly inappropriate forum for the determination of the defendant's claim for damages against the plaintiff for damages for dust-related injuries as set out in the DDT Statement of Claim.

(4) Order that, unless an application for a different order is made within seven days, each party is to pay their own costs of these proceedings.

(5) Direct that, unless an application for a different form of direction is made within seven days, the defendant is to include a copy of these reasons, for the attention of the Registrar, together with any originating process in this Court in which substantially the same allegations are made as in the DDT Statement of Claim.

**********

Supreme Court of New South Wales There are two further interlocutory motions before this court for determination. By notice of motion filed 2 September 2011, the second defendant seeks firstly, an order pursuant to Rule 21.2 of the Uniform Civil Procedure Rules 2005 ("UCPR") that the plaintiff provide discovery of the documents within the classes identified in the Schedule; and secondly, an order that the time for the second defendant to serve his evidence be extended to thirty (30) days after the plaintiff has provided discovery. If further discovery is granted, the plaintiff does not oppose the extension of 30 days for the second defendant to serve his evidence. By amended notice of motion filed 10 November 2011, the plaintiff seeks firstly, an order pursuant to UCPR 21.1 that the plaintiff have leave within seven days of the date of this order to file and serve interrogatories in the form attached to the letter dated 8 September 2011 from the plaintiff's solicitors to the second defendant's solicitors; secondly, that by 4.00 pm on 13 October 2011 (now past) the second defendant file and serve on the plaintiff answers to the interrogatories served pursuant to order one; and thirdly, pursuant to UCPR 33.8 the plaintiff be permitted to inspect and take a photocopy of the email dated 6 October 2009 from Foo Wong to Steven Agosta (the email) referred to in paragraph 13 of the affidavit of Steven Peter Agosta sworn 20 October 2011. There are three topics to be covered in this judgment, interrogatories, whether the email is the subject of legal professional privilege, and finally, whether there should be further discovery. I shall deal with these topics in order.-The orders I make are: (1) The second defendant's notice of motion filed 2 September 2011 is dismissed. (2) Mr Ho is to answer interrogatories 28 and 29 within 14 days. (3) Access to the plaintiff to the email dated 6 October 2009 from Foo Wong to Steven Agosta is refused. (4) Costs are reserved. **********

La Doria Spa v Global Resourcing Pty Limited [2012] NSWSC 144 (1 March 2012)

Last Updated: 5 March 2012

Supreme Court New South Wales

Case Title:	La Doria Spa v Global Resourcing Pty Limited
Medium Neutral Citation:	[2012] NSWSC 144
Hearing Date(s):	15 February 2012
Decision Date:	01 March 2012
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	(1) The second defendant's notice of motion filed 2 September 2011 is dismissed. (2) Mr Ho is to answer interrogatories 28 and 29 within 14 days. (3) Access to the plaintiff to the email dated 6 October 2009 from Foo Wong to Steven Agosta is refused. (4) Costs are reserved.
Catchwords:	PRACTICE AND PROCEDURE - interrogatories - whether email is privileged - whether further discovery required
Legislation Cited:	Evidence Act 1995 Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Commonwealth) Uniform Civil Procedure Rules 2005
Cases Cited:	Beechman Group Ltd v Bristol-Myers Co [1979] VR 273 Boyle v Downs [1979] 1 NSWLR 192 British Assn of Glass Bottle Manufacturers Ltd v Nettleford [1912] AC 709 Chong v Nguyen [2005] NSWSC 588 Griebart v Morris [1920] 1 KB 659 Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 Pratt Holdings Pty Ltd v Commissioner of Taxation[2004] FCAFC 122; (2004) 207 ALR 217 Pratten v Pratten [2005] QCA 213 Preston v Star city Pty Ltd [2007] NSWSC 293 Schutt v Queenan & Anor [2000] NSWCA 341 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[2002] HCA 49; (2002) 213 CLR 543 Yamazaki v Mustaca [1999] NSWSC 1083
Texts Cited:
Category:	Procedural and other rulings
Parties:	La Doria Spa (Plaintiff) Global Resourcing Pty Limited ACN 069 228 879 (First Defendant) (no longer an active Defendant) Lawrence Ho (Second Defendant)
Representation
- Counsel:	R Francois (Plaintiff) C Freeman with Y Guo (Second Defendant)
- Solicitors:	Clayton Utz (Plaintiff) Leonard Legal (Second Defendant)
File number(s):	2009/293592
Publication Restriction:

JUDGMENT

1. HER HONOUR: There are two further interlocutory motions before this court for determination. By notice of motion filed 2 September 2011, the second defendant seeks firstly, an order pursuant to Rule 21.2 of the Uniform Civil Procedure Rules 2005 ("UCPR") that the plaintiff provide discovery of the documents within the classes identified in the Schedule; and secondly, an order that the time for the second defendant to serve his evidence be extended to thirty (30) days after the plaintiff has provided discovery. If further discovery is granted, the plaintiff does not oppose the extension of 30 days for the second defendant to serve his evidence.

2. By amended notice of motion filed 10 November 2011, the plaintiff seeks firstly, an order pursuant to UCPR 21.1 that the plaintiff have leave within seven days of the date of this order to file and serve interrogatories in the form attached to the letter dated 8 September 2011 from the plaintiff's solicitors to the second defendant's solicitors; secondly, that by 4.00 pm on 13 October 2011 (now past) the second defendant file and serve on the plaintiff answers to the interrogatories served pursuant to order one; and thirdly, pursuant to UCPR 33.8 the plaintiff be permitted to inspect and take a photocopy of the email dated 6 October 2009 from Foo Wong to Steven Agosta (the email) referred to in paragraph 13 of the affidavit of Steven Peter Agosta sworn 20 October 2011.

3. There are three topics to be covered in this judgment, interrogatories, whether the email is the subject of legal professional privilege, and finally, whether there should be further discovery. I shall deal with these topics in order.

4. The plaintiff is La Doria Spa ("La Doria"). The first defendant is Global Resourcing Pty Ltd (In Liquidation) ("Global Resourcing"). In July 2011, Global Resourcing was placed into liquidation. The plaintiff has not sought leave to proceed against the first defendant. The second defendant is Lawrence Ho ("Mr Ho").

5. In January 2009 La Doria commenced these proceedings against Global Resourcing by statement of claim in Victoria seeking to recover €1,333,408.60 for goods sold and delivered. In March 2009 the Supreme Court of Victoria transferred these proceedings to this court.

6. On 30 July 201 0, Barr AJ granted leave to La Doria to file an amended statement of claim joining Mr Ho as the second defendant. Mr Ho was employed by Global Resourcing as its contract trading business consultant. He was not a director of Global Resourcing. Parts of the pleadings have been summarised by Bar AJ. I gratefully acknowledge that I have reproduced some parts of his Honours judgment.

7. The plaintiff is La Doria Spa, a company incorporated in Italy and listed on the Italian Stock Exchange. La Doria is in the business of manufacturing and supplying canned foods, such as peas, tomatoes, baked beans and spaghetti. La Doria's goods are sold to buyers in many countries around the world, including for Woolworths and Coles supermarkets in Australia. Global Resourcing Pty Ltd is incorporated in Australia and at all material times carried on business in New South Wales.

8. La Doria claimed that pursuant to a number of contracts it sold and delivered to Global Resourcing quantities of goods in 2007 and 2008 but that it had not been paid or fully paid for them.

9. Quantities of goods contracted for, rates and calculated totals have been particularised. La Doria asserted that each of the contracts was formed by the exchange of a series of email messages. The precise meaning of those messages is to some extent obscure and needs explanation and evidence will be adduced of the meaning of terminology used by the parties during the course of that correspondence.

10. The six contracts may be summarised as follows:

(1) Pea Agreement: made about May 2008 for canned peas;

(2) The first budget agreement: made about September 2007 for canned beans and pasta;

(3) The second budget agreement: made about August or September 2007 for canned tomatoes;

(4) The first home brand agreement: made about March 2007 for canned tomatoes, beans and pasta;

(5) The second home brand agreement: made about February 2008 for canned beans and pasta;

(6) The third home brand agreement: made about September 2007 for canned tomatoes.

11. In Global Resourcing's original defence (filed 2/9/09), it asserted that the unit rates put forward by La Doria did not apply. Instead, other rates applied. Those rates were not universally lower than the ones relied on by La Doria, but were mostly lower and the total amount that they produced as owing for each of the contracts was lower. The unit rates were orally agreed upon by telephone between one Cesare Concilio on behalf of La Doria and Lawrence Ho on behalf of Global Resourcing. As Barr AJ stated, an unattractive defence emerged, it being that any proposal and acceptance of unit rates in the exchanges of emails was of no effect because the parties were already bound to apply such rates as Mr Concilio and Mr Ho had agreed. La Doria has maintained its claim of breaches of the written contracts (by chain of emails) against Global Resourcing (in liquidation) but has not sought leave to proceed against it.

12. The way in which the first home brand agreement is dealt with will exemplify them all. As provided in the Further Amended Statement of Claim ("FASC") filed 21 June 2011

First Home Brand Agreement

20. By an agreement made in or about 2007 between the plaintiff and the first defendant, and in accordance with the Agreed Structure, the plaintiff agreed to sell and the first defendant agreed to buy canned beans and pasta ("First home Brand Goods") for delivery to the first defendant or at the first defendant's direction ("First Home Brand Agreement').

Particulars

(a) The First Home Brand Agreement is partly written and partly to be implied.

(b) in so far as it is written, the First Home Brand Agreement is comprised of and/or evidenced by the following documents:

(i) an email chain ending 26 March 2007 between the plaintiff and first defendant, an email chain ending 13 April 2007 between the plaintiff and first defendant and the chain of emails between the plaintiff and the first defendant ending on the dates referred to in the rows numbers 94 to 258 in Schedule A to this Statement of Claim; ("First Home Brand Emails);

(ii) order confirmation numbered 3208 and 3209 ("First home Brand Orders");

(iii) the invoices referred to in the rows numbered 94 to 258 in Schedule A to this Statement of Claim, each of which stated a date for payment 45 or 60 days from the date of the invoice ("First Home Brand Invoices"); and

(iv) the non-negotiable bills of lading referred to in the rows numbered 94 to 258 in Schedule A to this Statement of Claim ("First Home Brand Bills of Lading").

(c) In so far as it is to be implied, the First Home Brand Agreement is to be implied:

(i) from a course of dealings between the plaintiff and the first defendant whereby the plaintiff issued invoices to the first defendant payable either 45 or 60 days from the date of such invoices;

(ii) as it is necessary for the reasonable or effective operation of the agreement in the circumstances of the case; and/or

(iii) as it is reasonable and equitable, necessary to give business efficacy to the agreement, it is obvious, capable of clear expression and does not contradict any express term of the agreement.

21. There were terms of the First Home Brand Agreement that:

(a) the plaintiff would deliver to the first defendant (in the manner prescribed by the First Home Brand Agreement):

(i) 114,800 trays of canned beans with each tray containing twelve 425 ml cans at a price of E2.30 per tray; and

(ii) 108,000 trays of canned spaghetti with each tray containing twelve 425 ml cans at a price of E2.90 per tray;

(First Home Brand Orders and First Home Brand Invoices)

(b) The first defendant would pay the plaintiff for each shipment of First Home Brand Goods in the sum appearing on the corresponding invoice, by the time for payment appearing on such invoice, such time being a reasonable time after the date of the invoice (First Home Brand Invoices and particular (c) subjoined to paragraph 20 above);

(c) The plaintiff would deliver the First Home Brand Goods to the defendant on a "F.O.B." basis namely, free on board, meaning that the plaintiff would satisfy its obligation to deliver the First Home Brand Goods to the first defendant by delivering them to a carrier nominated by the first defendant at the Port of Naples or the Port of Salerno (First Home Brand Orders, First Home Brand Emails and First Home Brand Bills of Lading); and

(d) Commission was payable to FTC by the plaintiff in respect of the goods referred to in paragraphs 21 (a)(i) to (ii) (First Home Brand Emails).

22. In pursuance of the First Home Brand Agreement between November 2007 and July 2008, the plaintiff duly delivered the First Home Brand Goods the subject of the First Home Brand Invoices to the Port of Naples and the Port of Salerno to the carriers nominated by the first defendant together with the First Home Brand Invoices.

23. In the premises, the first defendant became liable to pay the plaintiff for the price of the First Home Brand Goods the subject of the First Home Brand Agreement being E1,443,212.30

24. The first defendant has refused, failed or neglected to pay this amount in full to the plaintiff and is indebted to the plaintiff in the sum of E210,292.45 in respect of the first Home Brand Invoices which is due and payable.

13. The FASC then details the claims against Mr Ho as follows:

First Home Brand Representations

66. Further between September 2007 and 2 September 2009 the first defendant and Ho represented to the plaintiff that the first defendant would pay the prices set out in paragraph 21(a) above for the First Home Brand Goods as invoiced from time to time (i.e. the First Home Brand Invoices) (" First Home Brand Representations ").

Particulars

(a) The plaintiff will rely upon the conduct of the defendants, namely the fact that the first defendant and Ho received from the plaintiff the First Home Brand Orders, the First Home Brand Invoices and the First Home Brand Bills of Lading which were consistent with the First Home Brand Representations and did not assert that those matters were incorrect.

(b) The plaintiff will rely upon matters referred to in paragraph 22 above and the fact that until the defence in this proceeding dated 2 September 2009 neither the defendant nor Ho contended that the proper price was anything other than that appearing in the First Home Brand Orders, the First Home Brand Invoices and the First Home Brand Bills of Lading.

(c) In the circumstances it was reasonable to expect that the first defendant and Ho would disclose to the plaintiff that the first defendant did not intend to pay the price appearing in the First Home Brand Orders and the First Home Brand Invoices.

(d) Such silence or omission to disclose to the plaintiff by the first defendant and Ho was misleading and deceptive and / or likely to mislead or deceive.

67. Acting in reliance on the truth and accuracy of the First Budget Representations, the Second Budget Representations, the Second Home Brand Representations (as defined in paragraph 75 below), the Third Home Brand Representations (as defined in paragraph 84 below) and the First Home Brand Representations and induced thereby, the plaintiff entered into and performed, and continued to perform the First Home Brand Agreement.

68. To the knowledge of Ho the First Home Brand Representations were untrue, false, misleading and deceptive and/or likely to mislead or deceive in that, unknown to the plaintiff, the first defendant did not intend to pay the First Home Brand Invoices and in particular in or about March to May 2006 Concilio and Ho had a telephone conversation the substance of which was:

(a) that the price which the first defendant would pay to the plaintiff for goods the subject of the First Home Brand Agreement would be:

(i) E1.955 instead of E2.30; and

(ii) E2.50 instead of E2.90.

(b) that such amounts referred to in 68(a) above would not be paid to the plaintiff by the first defendant unless and until the plaintiff submitted invoices to the first defendant for those amounts.

Particulars

See paragraphs 25(b) and 26 of the Defence and 34 to 39 of the Leonard Legal Letter.

69. In so far as the First Home Brand Representations were with respect to future matters, the first defendant and Ho did not have reasonable grounds for making those representations.

70. In the premises the making of the First Home Brand Representations constituted conduct by the first defendant in trade and commerce in breach of s 52 of the TPA (" Global TPA First Home Brand Breaches ").

71. Further, in the premises and by reason of the matters set out in paragraphs 66 and 68 and the particulars subjoined thereto, Ho:

(a) aided, abetted, counselled and procured; and

(b) was directly or indirectly knowingly concerned in and party to the Global TPA First Home Brand breaches within the meaning of s 75B of the TPA (" Ho's TPA First Home Brand Breaches ").

72. Further, in the premises the making of the First Home Brand Representations constituted conduct by the first defendant and Ho in trade and commerce in breach of s 42 of the FTA (" FTA First Home Brand Breaches ").

73. Further, the First Home Brand Representations were made by Ho:

(a) knowing that the representations were false;

(b) without believing that the representations were true; and/or

(c) recklessly careless as to whether the representations were true.

( " Ho's First Home Brand Deceit " )

74. By reason of the:

(a) Global TPA First Home Brand Breaches;

(b) Ho's First Home Brand TPA Breaches;

(c) FTA First Home Brand Breaches; and

(d) Ho's First Home Brand Deceit;

(i) the plaintiff has suffered loss and damage;

and

(ii) the first defendant has made profits.

14. The reference in the particulars under para 68 to the Leonard Legal Letter is to the letter supplying particulars to which I have referred. TPA means theTrade Practices Act 1974 (Cth) and FTA means the Fair Trading Act 1987.

15. The case against Mr Ho concludes as follows:

Breach of fiduciary duties

93. By reason of the conduct of Concilio referred to in [paragraph] ... 68 ... Concilio acted in breach of Concilio's Fiduciary Duties in that he;

(a) failed to exercise his powers and discharge his duties in good faith and in the best interests of the plaintiff;

(b) failed to exercise his powers and discharge his duties for proper purposes;

(c) failed to act honestly at all times in the exercise of any power and the discharge of any duties;

(d) failed to exercise his powers and discharge his duties with the degree of care and diligence that a reasonable person in a like position and with like responsibilities would exercise in the circumstances; and

(e) improperly used the position as an employee of the plaintiff to cause detriment to the plaintiff.

Concilio's Breaches of Duty

94. Concilio was not authorised by the plaintiff to engage in the conduct alleged in [paragraph] ... 68 ... and the plaintiff was unaware of the occurrence of that conduct.

95. At all times Ho and thereby the first defendant were aware;

(a) of Concilio's breaches of duty; and

(b) that La Doria was not aware of Concilio's breaches of duty.

Particulars

(a) The plaintiff refers to and repeats paragraphs 5, 10, 15, 20, 25, 30, 39, 41, 48, 50, 57, 59, 66, 68, 75, 77, 84 and 86 above and the particulars of those paragraphs.

(b) The particulars in (a) are the best particulars the plaintiff is at present able to provide.

(c) The plaintiff reserves the right to provide and rely on further particulars of any further matters which arise at trial.

96. Further, in the premises the first defendant;

(a) benefited from,

and Ho and the first defendant:

(b) aided, abetted, counselled or procured;

(c) induced;

(d) knowingly participated in; or

(e) were knowingly concerned in,

Concilio's Breaches of Duty.

Particulars

(a) The plaintiff refers to and repeats paragraphs 5, 10, 15, 20, 25, 30, 39, 41, 48, 50, 57, 59, 66, 68, 75, 77, 84 and 86 above and the particulars of those paragraphs.

(b) The particulars in (a) are the best particulars the plaintiff is at present able to provide.

(c) The plaintiff reserves the right to provide and rely on further particulars of any further matters which arise at trial.

97. In the premises Ho and the first defendant;

(a) received and hold on constructive trust for the plaintiff any benefit derived from Concilio's breaches of duty; and

(b) are liable to compensate the plaintiff for any loss and damage suffered by it as a consequence of Concilio's breaches of duty.

16. In Mr Ho's defence filed 22 June 2011, he denies the representations. He says that he did not receive or read the orders, invoices or bills of lading. Mr Ho also denies that he made the representations.

Interrogatories

17. The first point that counsel for Mr Ho made is that La Doria cannot succeed on both the contract claims and the misrepresentation claims, as they are claims in the alternative. If La Doria succeeded on the contact claim (ie, it entered into the agreements at the prices it alleges), then it could not establish the misrepresentations and vice versa. Global Resourcing is in liquidation and the contract claims are not defended by it. Mr Ho does not plead to the contract claims.

18. Counsel for Mr Ho referred to a portion of the transcript before Barr AJ on 28 July 2010 .

"FRANCOIS: Your Honour, may I just orally open then, which is this, the case concerns a claim by an Italian company who entered into agreements with an Australian company for the export and in Australia the import of canned goods of various kinds. So the Italian company sells the goods to the Australian company which imports them and sells them on to places like Woolworths.

The Italian company says it had contracts with the Australian company, that were written, and certain prices were agreed for the products that were supplied. That's the claim as pleaded.

The defence says, as far as we understand it. While you might have written agreements, there was an earlier oral conversation between the defendant's employee and the plaintiff's employee where they agreed on different prices and those prices were to prevail in the face of the later negotiations.

The proposed amendments seek to deal with that allegation. So the proposed amendments seek to deal with an allegation that an otherwise written agreement is superseded and somehow overwritten by an earlier agreement reached between two people who negotiated the written agreement. Should that prove to be correct and my client cannot recover the written agreed price but must pay the lower earlier agreed price, my client wishes to plead claims that it did not know about that and that it was misled by the conduct of its employee and of the defendant and its employee ." [emphasis added]

19. Leave was granted to join Mr Ho as second defendant. Leave was also granted to file an ASC rasing both the contract claims and in the alternate misrepresentation claims against Mr Ho. Barr AJ did not consider that both claims could not be pleaded in the ASC. While it is likely that at trial La Doria can only succeed on either the contractual claims or the misrepresentation claim it is possible that the court may find some of the contracts were written and other were made orally by Mr Ho and Mr Concilio that may give rise to the false and misleading claim. Hence, I do not agree with Mr Ho's submission that only one claim can be maintained.

20. Counsel for Mr Ho stated in open court that Mr Ho would not give evidence at trial except so far is necessary to support assumptions and/or facts relied upon by his expert, Mr Ross. If further evidence is to be relied upon by either party, Mr Ho will review his position. Mr Ho had been referred to in earlier Victorian proceedings as Lauren Ho. Counsel for Mr Ho also stated in open court that Lauren Ho and Lawrence Ho are one and the same person. In the light of this statement, the interrogatories that address this identity issue of Mr Ho are no longer necessary.

21. Counsel for La Doria submitted that because of the stance taken by Mr Ho, (not to give evidence) in order for La Doria to prove its case, the answers to these interrogatories are necessary.

The law

22. Rule 22.1(4) of the Uniform Civil Procedure Rules reads:

"In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made."

23. The accepted test of necessity is what is reasonably necessary for the disposing fairly of the matter or necessary in the interests of a fair trial: Boyle v Downs [1979] 1 NSWLR 192 at 205, Yamazaki v Mustaca [1999] NSWSC 1083. The answers which are sought are material in the sense that they may enable the plaintiff either to maintain its own case or to destroy the case put against it: Griebart v Morris [1920] 1 KB 659 at 664 and Schutt v Queenan & Anor [2000] NSWCA 341 at [12].

24. In Chong v Nguyen [2005] NSWSC 588, Rothman J said at [16]:

"The word 'necessary' when used in relation to a requirement on the exercise of a power granted to a court should generally and does here mean 'reasonably required or legally ancillary' to the achievement of the goal, in this case, of a fair trial. I refer to the joint judgment of Gaudron, Gummow and Callinan JJ inPelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 which, while determining whether there was a valid basis for contempt proceedings, examined the power of the District Court to issue injunctive relief. They said:

'The term "necessary" in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker [1849] EngR 223; (1849) 3 Ex 242, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Division 4 of Part 3 of the District Court Act. In this setting, the term "necessary" does not have the meaning of "essential"; rather it is to be "subjected to the touchstone of reasonableness" ( State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 477 at 452).'"

25. Interrogatories 1 to 27 ask questions of Mr Ho in relation to various emails passing between him and his counterpart in La Doria, Cesare Concilio and emails passing between some other employees of La Doria and Global Resourcing. They ask Mr Ho what oral conversations there were and whether certain emails were brought to his attention. They also ask Mr Ho's about his knowledge as to the content of emails sent between employees of La Doria to other employees in Global Resourcing.

26. La Doria submitted that the answers to these interrogatories are necessary because, firstly, La Doria relies on Mr Ho's statements as recorded in that letter regarding his conversation with Mr Concilio as admissions to prove the allegations in paragraphs 41, 50, 59, 68, 77 and 86 of the FASC; secondly, subpoenas for the production of documents containing the instructions providing the basis for that letter have so far been unproductive; and thirdly, there is currently no other evidence available to prove those allegations. Mr Ho's knowledge and participation in the matters, that are the subject of the emails, bear upon his denial of the representations being made. Counsel for Mr Ho submitted that the questions that are asked in relation to these emails are not necessary as the plaintiff's solicitor can obtain evidence and answers to these questions from Mr Concilio and other employees of La Doria.

27. So far as Mr Concilio is concerned, Barr AJ in his judgment dated 30 July 2010, recorded at [6] that Ms Francois, for La Doria, informed the Court that while Mr Concilio had been an employee of La Doria that was no longer the position and Mr Concilio, who resides in Italy, cannot be located. That was the situation as at July 2010. No evidence was provided by La Doria as to what steps, if any, have been taken since then to locate the crucial witness, Mr Concilio. It may be that he is unwilling to provide evidence as there is a claim pleaded against him in the further amended statement of claim but there is no evidence to this effect. There are other employees who have authorised the emails emanating from La Doria so enquiries can be made of them in relation to the matters that involve them. It is my view that without some evidence to show the steps to locate Mr Concilio since July 2010 and his unwillingness to give evidence, I cannot say that these interrogatories are necessary at this time.

28. That leaves interrogatories 28, 29, 30, 31, 32, and 34 to 40.

29. Interrogatories 28 to 30 ask:

28 Were you in any or all of 2006, 2007 and 2008 (stating which) responsible for managing the first defendant's trading relationship with the plaintiff and familiar with the plaintiff's business dealings insofar as they concerned the plaintiff?

29 If "no" to 28, when did you first:

(a) become responsible for managing the defendant's trading relationship with the plaintiff on behalf of the first defendant; and

(b) acquire knowledge of its business dealings with the plaintiff?

30 Were you in 2007 and 2008 kept informed of orders of product from the plaintiff?

30. As it is Mr Ho's current position that he will not give evidence at trial, it is my view that these interrogatories (28 and 29) asking him when he was responsible for managing Global Resourcing's trading relationship with Le Doria are necessary. Interrogatory 30 is too vague and is therefore not necessary.

31. Interrogatories 31 and 32 ask Mr Ho to confirm what was said by his counsel in court in Victoria and also whether paragraph 4 of his affidavit was true and correct. In the affidavit Mr Ho would have sworn the contents of the affidavit are true and correct. There is a transcript of what Mr Harrison of counsel said in court is available. It is my view that it is not necessary to go behind the transcript and the oath of Mr Ho. Hence, Mr Ho is not required to answer these interrogatories.

32. On 15 April 2010, Mr Ho entered into a retainer with Leonard Legal in respect of these proceedings. Counsel for Mr Ho submitted that interrogatories 34, 35, 36, 37, 38, 39 and 40 specifically seek answers to confidential communications that were given after these proceedings had commenced and for Mr Ho to answer them would require him to waive his claim for legal professional privilege. Counsel for La Doria submitted that legal professional privilege does not cover instructions given by Mr Ho to answer La Doria's further and better particulars, or alternatively, that Global Resourcing waived privilege by disclosing the substance of the privileged communications in its defence dated 2 September 2009. The answers to particulars were given before Mr Ho was joined as a party to these proceedings; but if Mr Ho did give these instructions it would have been on behalf of Global Resourcing after legal proceedings has been commenced. The liquidator (letter dated 19/10/11) (Ex B) states that it wishes to maintain its claim for privilege and does not waive its claim for privilege in relation to the proposed interrogatories.

33. Interrogatories 34 to 40 read:

34. Prior to or on about 9 October 2009, did you provide the information or any of it (specifying which information) set out in paragraphs 1 to 6, 12 to 17, 23 to 28, 34 to 39, 45 to 50 and 56 to 61 of the LL Letter ("Relevant paragraphs"):

(a) to Steven Agosta or any other person at Leonard Legal (identifying the person); or

(b) someone else (identifying the person), for the purpose of communicating it to Leonard Legal?

35. If 'yes" to 34(a), do the Relevant Paragraphs accurately reflect the information you provided?

36. Did you receive a draft of the LL Letter and if so from whom?

37. Did you approve the contents of the Relevant Paragraphs before the LL Letter was sent and if so to whom did you convey the approval?

38. When did you first:

(a) read; and

(b) receive,

a copy of the LL letter?

39. Are the matter set out in the Relevant Paragraphs true and correct?

40. If "no" to 39, in what respects is any matter set out in the Relevant Paragraphs not true or correct?

Confidential communications

34. Sections 118, 119 and 131A of the Evidence Act 1995 read:

"118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

35. The term "client" is defined in s 117(1)(b) of the Evidence Act to include an employee or agent of the client, which includes both Mr Ho and Mr Foo Wong.

36. Section 131A provides:

131A Application of Part to preliminary proceedings of courts

(1) If:

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and

(b) the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:

...

(d) interrogatories,

..."

37. UCPR 1.9(3) and the definition of "privileged document" in the Dictionary to the UCPR apply the Evidence Act to the determination of interlocutory disputes concerning privilege.

38. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 ( at 552 ) the High Court held:

"It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communication between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings."

39. In Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 207 ALR 217, Stone J indicated that the High Court's exposition of the rationale for legal professional privilege in Daniels was consistent with the appellants' submission that there is a single rationale in Australia for legal professional privilege. Stone J found that the rationale applies both to litigation privilege and legal advice privilege, although Her Honour did not accept that adopting a single rationale should lead to a refusal to distinguish between the categories.

40. The plaintiff's counsel also referred to Pratten v Pratten [2005] QCA 213 at [27] to [31] and [79]. In Pratten , Ms Smith gave evidence that she told her solicitor to notify that the disputed chattels were there [at her property]. At [30] and [31] Jerrard JA discussed the application of the well known principles in relation to Ms Smith's evidence. His Honour stated:

[30] Ms Smith's evidence of having given those instructions to Mr Roderick was given by her both in evidence in chief and in cross-examination. She clearly did so to establish that she had done all she could to offer a return of the claimed property, and to imply that if the solicitor had not written as instructed, then that was not her fault but his. She implied the same about the apparent failure of the solicitor to act on her asserted instructions about her counterclaim, which only appeared in her pleadings. In those circumstances, there was an inconsistency between, on the one hand, her conduct in the witness box, and, on the other hand, maintaining confidentiality as to what she told her solicitor, which inconsistency affected a waiver of any legal professional privilege existing to protect disclosure by the solicitor of what she told him to do. In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, the joint majority judgment of the High Court records at CLR 13 that:

"and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication ... "; and

"Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."

Their Honours went on at CLR 15:

Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.

[31] Here the issue is the instruction Ms Smith gave to the solicitor, not the advice the solicitor gave. She asserted specific instructions were given, and Mr Conrick was not seeking to learn what advice the solicitor gave her; only whether the instructions were given as claimed. Assuming legal professional privilege originally existed with respect to the issue of whether she had given the instructions, she waived it in the sense described in Mann v Carnell by her own inconsistent conduct in asserting that she had. Considerations of fairness required that that matter, important to her credit generally and in her defence to the claim in detinue, be tested by cross-examination of the solicitor. Mr Pratten's subpoena was too wide and was set aside, but Mr Roderick was legitimately called as a witness and could give admissible evidence.

And at [79] Muir JA stated:

[79] The primary judge rejected the submission and refused to permit the solicitor to be called to give evidence. His Honour erred. The giving of instructions by a client to the client's solicitor to act in a particular way or to communicate a matter to the other side of litigation would not normally be regarded as attracting legal professional privilege. It is not a communication for the purposes of giving or receiving legal advice. But even if such a communication were privileged, it is difficult to see why the respondent, having asserted that a particular instruction had been given, had not waived any privilege which may have existed in the fact of the instruction. Generally, similar considerations apply to the documents which the respondent alleged she had given her solicitor.

41. From a perusal of the answers to the further and better particulars by Global Resourcing and assuming that Mr Ho was involved in answering at least some of them, legal advice was given by the solicitor acting for Global Resourcing. If Mr Ho provided information it was provided on Global Resourcing's behalf not his. These communications are confidential. I understand that La Doria now alleges that as a result of the pleading by Global Resourcing in its defence, it now alleges that Mr Ho was involved in making misrepresentations to La Doria. La Doria is attempting to obtain evidence of Mr Ho's alleged misrepresentations by seeking to go behind legal professional privilege.

42. Mr Ho is now a separate defendant to Global Resourcing . It was Global Resourcing who alleged that Mr Ho and Mr Concilio entered into other agreements. Mr Ho has denied that he did so in his defence. Global Resourcing has amended its defence and has withdrawn these allegations. It is my view that for Mr Ho to answer these interrogatories would require Global Resourcing to waive its claim for legal professional privilege. It should not be required to do so.

43. The result is that Mr Ho is required to answer interrogatories 28 and 29.

44. Counsel for La Doria at [36] to [44] of her submissions in reply (emailed the night prior to this hearing) made submissions against the solicitors acting for Mr Ho. Due to their seriousness of these submissions and late notice they were by agreement of the parties not dealt with at this hearing.

Access to documents

45. On 16 September 2011, the plaintiff filed a subpoena (Ex C) addressed to the liquidator of Global Resourcing seeking the following:

"Any document comprising, evidencing or recording a statement by or instructions from Lawrence Ho, whether oral or in writing, proving the basis for paragraphs 1 to 6, 12 to 17, 23 to 28, 34 to 39, 45 to 50 and 56 to 61 of the letter dated 9 October 2009 from Leonard Legal to Clayton Utz."

46. Documents have been produced by the liquidator. La Doria seeks access to an email from Foo Wong an employee of Global Resourcing to its solicitor Steve Agosta dated 1 October 2009. The liquidator of Global Resourcing maintains the claim for privilege but did not seek to argue this issue. However, the liquidator neither consents nor opposes the orders of the court. In my view, La Doria is trying a different path to obtain information that is the subject of legal professional privilege. Access to these documents is not refused.

Further discovery

47. Under Part 21 of the Uniform Civil Procedure Rules 2005 the Court has power to order a party to give discovery. UCPR 21.2(4) reads:

"(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue."

48. Hence, UCPR 21.2(4) limits an order for discovery to those documents that are "relevant to a fact in issue."

49. In Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341, Menzies J referred to the broader proposition that document which fall within the "train of enquiry" ought to be discovered. Menzies J (at 345) stated:

"I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues - not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to, a train of inquiry which would, either advance a party's own case or damage that of his adversary."

50. The broader proposition that documents which fall within the "train of enquiry" ought to be discovered.

51. Also in Mulley v Manifold , it was stated that the general rule is that an affidavit of discovery is conclusive evidence of discovery required to be given. There are exceptions that have been recognised to this general rule. In Mulley v Manifold , Menzies J at 343 referred to British Association of Glass Bottle Manufacturers Ltd v Nettleford [1912] AC 709 stated:

"... it was established that insufficiency [of the affidavit of discovery] might appear not only from the documents that also from any other source that constituted an admission of the existence of a discoverable document."

52. A court must have "reasonable grounds for being fairly certain that there were other relevant documents which ought to have been disclosed": seeNettleford at 714; Beechman Group Ltd v Bristol-Myers Co [1979] VR 273 at 276 and Preston v Star city Pty Ltd [2007] NSWSC 293 per Hoeben J at [12].

53. The reason that Mr Ho seeks further discovery is because his expert, Mr Andrew Ross a qualified chartered accountant, has been asked to provide an expert's report on damage and has deposed that he needs these further documents to prepare his report.

54. So far as the claim for damages is concerned, Mr Alberto Festa, who is the director of Administration and Finance of La Doria, has given precise evidence as to what he would have done if he had became aware that prices had been agreed with Global Resourcing for the goods which were other than those contained in La Doria's invoices. He would not have tolerated it. He would have sold the goods to Global Resourcing's customers directly if they had not already been shipped. It is his view La Doria would have had very good prospects of selling those goods directly to those customers for the prices, which had been agreed with Global Resourcing, or higher prices.

55. So far as any goods he could not sell directly to Global Resourcing's customers, Mr Festa says La Doria could have sold those goods for similar prices to other customers in the United Kingdom, Italy, Northern Europe, Japan or elsewhere. Mr Festa says that in the case of such goods, based on his experience, La Doria would have sold the goods for prices within 10 percent (above or below) the prices for those goods.

56. The documents referred to in categories 1, 3, 5 and 7 of the Schedule are no longer sought. In each category where documents are still sought the words "refer or relate to" were deleted. La Doria submitted that Mr Ho has not advanced reasonable grounds for believing that the documents in any category in the Schedule exist.

57. On 8 August 2011, La Doria provided a spreadsheet said to be "analysing revenue for 2007 and 2008." On 9 September 2011, La Doria provided a further spreadsheet. La Doria says that it has already given discovery in that it analyses its revenue for each product so as to show the price at which it sold the product to each customer, the number of units sold and the total value; and breaks down its sales of each product by the country of the customer, being Australia, New Zealand, Germany, South Africa, South Korea and Denmark.

58. Mr Ross (Aff 6/9/11 at [17] and [18]) stated that (a) he could not reconcile spreadsheets to financial statements; (b) he did not know what currency is used but it was reasonable to assume it was Euros; (c) the spreadsheet did not include all relevant products; (d) the size of the product could not be identified; (e) the data is one value per product per customer per years and therefore it cannot identify the range of prices per product; (f) there were difference prices to different customers; (g) there was no identification of shipping, insurance etc, so he did not know what prices included and (h) there were no terms of trade identified. Andrew Wescott, solicitors for La Doria, replied that the spreadsheets provided include detailed sales information for 2007 and 2008 for "each product sold to the first defendant and other customers" or "of the products the subject of this proceeding by reference to customer and country of the customer."

59. Mr Ross (Aff 11/11/11 at [ 9 ]) further stated that he needed documentation, which identified sales to each customer for each year with separate details for each product including details for each size of product. He required:

• Total volume sold
• Total amount invoiced for product costs
• Total amount invoiced and/or incurred for each category of incidental costs (insurance, shipping etc)
• Range of prices at which the product was invoiced
• Amounts disputed or not paid

60. The categories of documents sought in category 2 the Schedule are those documents that evidence the sale by La Doria of similar goods "for similar prices to other customers in the United Kingdom, Italy, Northern Europe, Japan or elsewhere" during the relevant period the relevant period being from 1 January 2007 to 31 December 2009.

61. La Doria submitted that an order for discovery of the documents in the Schedule would be oppressive and disproportionate because Mr Ho in his notice of motion defines the "Relevant Period" as 1 January 2007 to 31 December 2009 and "Similar Goods" is defined as the goods referred to in La Doria's FASC, including but not limited to canned peas, canned beans, canned pasta and canned tomatoes. La Doria has sales of € 406.6M in 2007, € 448.3M in 2008 and € 445.9M in 2009 and most if not all of the sales were of similar goods.

62. Category 4 of the Schedule seeks documents that evidence the costs La Doria would have incurred to find and transact with n ew customers during the relevant period. But Mr Festa's claim is based on a hypothetical, namely what he would have done if he had known of the different price agreements but the fact is that he did not know of them. The evidence sought does not exist.

63. Category 6 of the Schedule seeks documents that evidence sales by La Doria of similar goods to other customers, including but not limited to the prices and terms of trade, during the relevant period. This is similar to category 2 but seems to be wider in that it includes worldwide sales.

64. Category 8 of the Schedule seeks documents that refer or relate to or evidence La Doria's total sale (by product) and its customer base during the relevant period.

65. La Doria submitted that Global Resourcing has its total sales by product and customer for 2007 and 2008 for the products and that this category of documents is not relevant to any matter in issue. La Doria further submitted that an order for discovery of the documents in category 8 would be oppressive and disproportionate.

66. Category 9 of the Schedule seeks documents that refer or relate to or evidence La Doria's competitive position in its markets (by product) during the relevant period.

67. La Doria submitted that there is no evidence that it has any relevant documents in this category and that this category of documents is not relevant to any matter in issue.

68. Category 11 of the Schedule seeks documents that refer or relate to or evidence La Doria's debt collection history in relation to all customers generally for the period of three years prior to the date of the alleged misrepresentations, as well as any specific alternative customers that the plaintiff says it would have sold the relevant products to.

69. Its annual reports (already provided) contain details of its provisions for doubtful debts in the relevant years. La Doria says that there is no evidence that it has a "canned goods division" in respect of which it makes discrete provisions for doubtful debts or write-offs. Mr Ho seeks documents relating to "instances and occasions where the plaintiff had had price disputes in its canned goods division as well as how those disputes were resolved". La Doria says this category of documents is not relevant to any matter in issue.

70. It is my view that the categories of documents sought go beyond the issues in dispute. Further, for La Doria to provide these documents, when the company has a yearly turnover from canned goods and pasta of over € 400M is oppressive.

71. An order for further discovery is refused.

Mediation

72. I understand that there was an earlier mediation when there was only one defendant, Global Resourcing. Global Resourcing is in liquidation and is no longer an active defendant. M r Ho is now the only defendant in these proceedings. He has not had the opportunity to mediate the dispute. In view of the escalating costs being expended in these interlocutory skirmishes and the future legal costs that will be incurred at the future trial, it is my view that it would be worthwhile for the parties to go to mediation. The parties were to seek instructions concerning mediation and advise this court of their attitude when this judgment is delivered.

The orders I make are:

(1) The second defendant's notice of motion filed 2 September 2011 is dismissed.

(2) Mr Ho is to answer interrogatories 28 and 29 within 14 days.

(3) Access to the plaintiff to the email dated 6 October 2009 from Foo Wong to Steven Agosta is refused.

(4) Costs are reserved.

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