Griffin v. Interchem Pty Ltd [2013] VCC 176 (5 March 2013)

Last Updated: 14 October 2015

IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted

AT MELBOURNE

COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-12-02574

GLEN GRIFFIN	Plaintiff
v.
INTERCHEM PTY LTD	Defendant

---

JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2013
DATE OF JUDGMENT:	4 March 2013 (revised 5 March 2013)
CASE MAY BE CITED AS:	Griffin v. Interchem Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 176

REASONS FOR JUDGMENT

---

Catchwords: Practice and procedure – Late application by plaintiff to vacate the trial date – Application based upon alleged inadequate discovery – No basis to vacate trial date established.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. D’Abaco	Caldwell Solicitors
For the Defendant	Mr D. Collins QC	Brian Ward & Partners

HIS HONOUR:

1. This proceeding is fixed for trial on 6 March 2013. The plaintiff by summons filed 26 February 2013, seeks the adjournment of the trial date on the basis that there are outstanding interlocutory issues, specifically, that further discovery by the defendant is necessary and the parties have not completed mediation.
2. The proceeding was fixed for trial on 6 March 2013 by order of His Honour Judge Lacava made 14 September 2012. Judge Lacava made that order following the submission of minutes of consent orders by the parties on 19 July 2012. The draft orders did not specify a trial date but anticipated that all interlocutory steps, including discovery and mediation and the issue of subpoenas, would have been completed by the end of November 2012.
3. The plaintiff was an employee of the defendant. His employment was terminated in about March 2012 on the basis of what was alleged to be serious misconduct. The plaintiff claims that the termination was not justified and itself constituted a repudiation of the employment agreement.
4. In the statement of claim, the plaintiff claims sums totalling $749,137.25. These include payments consequential upon termination of employment, together with payments which were simply a consequence of the employment agreement. The defendant counterclaims for what it alleges constituted an overpayment of superannuation entitlements.
5. In a letter dated 8 November 2012, the plaintiff’s solicitors sought discovery of further documents from the defendant. These documents related to the financial transactions which gave rise to the plaintiff’s entitlement to what was described in his employment contract as his base salary, which was effectively calculated as a commission.
6. The plaintiff’s claims in the statement of claim refer to specific sums claimed. Although the statement of claim anticipated that further particulars would be provided following discovery, the basis of the claims was set out in the pleading. Further particular of these claims have subsequently been provided.
7. One such claim was for outstanding base salary payments which were said to be, “a consequence of wrongful calculations by Interchem”. The sum of $95,000 was claimed in the statement of claim, The further and better particulars given by the plaintiff indicate that this sum relates to the wrongful deductions of, “the costs incurred by [the defendant] in transferring chemical products after they had landed in Australia”. The further particulars suggested that more precise particulars would be provided after discovery.
8. This claim has been used, however, to justify a submission that the defendant should be required to provide discovery of all documents relating to every transaction involved during the relevant period of the plaintiff’s employment with the defendant. It is clear that such documents would not be necessary in order to determine the claim as pleaded by the plaintiff and further particularised by him, which are limited to transfer costs.
9. Defendant’s counsel, Mr Collins SC, submitted that the plaintiff was seeking to conduct an audit of all relevant transactions during the course of his period of employment. Discovery cannot be used for that purpose. The defendant has provided discovery in three tranches. The latest tranche includes a substantial body of documents, some six boxes, and the inadequacy of previous discovery was sought to be established by plaintiff’s counsel by reference to those further documents. There may well be other documents relevant to the transactions which have been omitted from the bundles discovered.
10. In my view, however, this cannot be the test for the adequacy of the discovery made by the defendant. Such discovery must first be judged by reference to the dispute raised on the pleadings and then by reference to the affidavits of documents provided by the defendant.
11. This exercise was not undertaken by the plaintiff. Further, although a request for further discovery was made in November 2012, in my view this request was too far ranging and must be considered either a fishing expedition or an attempt to require the defendant to undertake work which would be unnecessary for the proper determination of the dispute.
12. The request for further discovery was not pressed before being resuscitated in recent weeks. Despite the proceeding being set down for trial on 6 March 2013, it was not until shortly prior to the issue of the plaintiff’s summons that the plaintiff pursued its request. The breadth of the categories of the request in the summons is indicative of how the application misconceives the issues in dispute as defined by the pleadings.
13. The further basis for the adjournment of the trial was that no mediation had been conducted. The mediation was, by order of Judge Lacava, to have been completed by the end of October 2012. No real explanation has been given for the failure to comply with this order, or indeed most of the other orders made by Judge Lacava, which were the orders sought by the consent of the parties.
14. The defendant wishes to proceed with the trial on 6 March 2013. It has been working towards the trial date and the preparation of the matter for trial. One specific matter the defendant overlooked was the need to amend its defence and counterclaim in accordance with amendments which were notified to the plaintiff on 20 July 2012. The suggestion was made by plaintiff’s counsel Mr D’Abaco that no indication was given by the defendant that it intended to pursue these amendments.
15. The amendments relate to further details of the allegation of serious misconduct by reference to an alleged conversation between the plaintiff and a Singaporean resident, Mr Allan Koo.
16. It is apparent that the defendant has intended to pursue the amendments to the defence and counterclaim; by seeking subpoenaed documents from the Department of Immigration relating to the plaintiff’s travel to Singapore in February and March 2012 (the period during which it is alleged the plaintiff spoke to Mr Koo), the request in January 2013 for the plaintiff’s consent to the amendment (which was not responded to), the delivery of a Notice to Admit in relation to the plaintiff’s travel in February 2012 and a request in relation to the taking of Mr Koo’s evidence by video link which was notified to the plaintiff’s solicitors on 20 February 2013.
17. In my view, there is sufficient basis to grant the amendments sought and in circumstances where it cannot be said the plaintiff would be taken by surprise. I consider that it would be appropriate for Mr Koo to give evidence via video link from Singapore. Nothing was advanced in argument before me by Mr D’Abaco which would demonstrate that the plaintiff would suffer any prejudice by the giving of evidence by Mr Koo in this form. Video evidence has been taken in all types of cases including in criminal trials for many years, without serious suggestion that the evidence is of lesser value than the evidence given from the witness box.
18. In civil cases, the Court is bound to consider questions of costs and expense and it is clearly more desirable when witnesses would otherwise need to travel overseas to give evidence that the use of modern technology should be employed and encouraged.
19. The parties estimated, prior to orders being made by Judge Lacava, that all issues of liability and quantum could be determined in 3-4 sitting days. There may be good reasons why issues of liability and quantum might be split in this case, or more accurately stated, whether the issue of the justification of the termination of the plaintiff’s employment on the basis of his gross misconduct or whether this action itself constituted a termination of his employment contract, should be determined as a preliminary issues.
20. There are a number of subsidiary issues, for example, the question of underpayment of the plaintiff’s entitlements during his employment and the defendant’s counterclaim for overpayment of superannuation. These are matters which depend in part upon an interpretation of the employment contract but which would otherwise be matters of calculation.
21. I consider that the matter having reached this point with the application being made to vacate the trial date so close to trial, that every attempt should be made by the parties to ensure that the trial date is not wasted, particularly as if the matter does not proceed on 6 March, the next available trial date would be in September 2013.
22. I propose to make the following orders:
    1. Plaintiff’s application by summons filed 26 February 2013 is dismissed.
       2. Subject to the orders of the Trial Judge, the trial will proceed on such issues of liability and quantum as the Trial Judge directs.
       3. By 4pm on 5 March 2013, the parties shall exchange a document setting out the issues which each party considers the trial commencing on 6 March 2013 should deal with, specifically:
          1. the issue of whether the plaintiff’s employment was properly terminated on the basis of serious misconduct or itself constituted a repudiation of the employment contract;
          2. in relation to each of the monetary claims by the plaintiff and the counterclaim by the defendant, by what means the issues of liability and quantum might be determined;
          100. the calculation of quantum following the determination of the Court in respect of the issue of whether or not the termination of the plaintiff’s employment was in accordance with the employment contract.
       4. Leave to the defendant to amend its defence and counterclaim in accordance with the draft pleading delivered on 20 July 2012.
       5. The evidence of Mr Allan Koo, if called at the hearing commencing 6 March 2013, shall be by video link and all necessary orders including any abridgments of time, shall be made by the Commercial List Duty Judge “on the papers” upon submission of a draft order by the defendant’s solicitors.
       6. The costs of the plaintiff’s summons filed 26 February 2013 and of the hearings before the Court on 1 and 4 March 2013 are reserved.
    7. Reserve liberty to apply.

- - -

Certificate

I certify that these 5 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 4 March 2013 and revised on 5 March 2013.

Dated: 5 March 2013

Philippa Gilkes

Associate to His Honour Judge Anderson