Adelaide Football Club Ltd & Anor v Nationwide News Pty Ltd & Anor
[2004] SADC 135
•7 October 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal: Appeal Against a Master's Decision)
ADELAIDE FOOTBALL CLUB LTD & ANOR v NATIONWIDE NEWS PTY LTD & ANOR
Decision of His Honour Judge David
7 October 2004
ADMINISTRATIVE LAW
Appeal against a masters decision allowing non-party discovery - whether discretion section of Rule 58A (inter-party discovery) applies to Rule 60 (non-party discovery) - held that no discretion exists to allow non-party discovery unless material directly relevant - appeal allowed.
District Court Rules 58A and 60, referred to.
Channel Seven Adelaide P/L v Lane & Hurley [2004] SASC 177; Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co. No. 8 [2002] SASC 20, considered.
ADELAIDE FOOTBALL CLUB LTD & ANOR v NATIONWIDE NEWS PTY LTD & ANOR
[2004] SADC 135
This is an Appeal from a Decision of Master Kelly allowing the respondents’ application for non-party discovery by the Stamford Grand Hotel of the “Guest Register for the 8th Floor of the Hotel (of which Room 811 forms a part) for the 4th and 5th January 2003”. The application to Master Kelly was made pursuant to Rule 60 of the Rules of Court. The argument before both Master Kelly and myself involved the question as to whether the criteria for non‑party discovery in Rule 60 is narrower than that which is required by Rule 58A which deals with inter-parties discovery. Before turning to that question I set out briefly some matters of background.
The appellants (plaintiffs) are suing the respondents (defendant) in defamation. The respondents in their defence claim fair comment on a matter of public interest. Without going into detail the pleadings indicate that the article of the respondents about which the appellants complain is alleged to have said that the second appellant was untruthful when he denied that a high profile footballer employed by the first appellant was involved in certain behaviour which occurred on the 8th Floor in Room 811 of the Stamford Grand Hotel on the 5th January 2003. The article complained about was published on the 5th February 2003. The respondents sought production of the Guest Register for the 8th Floor of the Hotel, with particular reference to Room 810, for the 4th and 5th January 2003. The application by the respondents for non-party discovery was not opposed by the proprietor of the Stamford Grand Hotel. Master Kelly held that it would be in the interest of justice to order non-party discovery of the relevant page or pages of the Hotel Register to provide the defendants with the names of the persons in Room 810 who could be potential witnesses. It is now argued on appeal as it was before the learned Master that Rule 60 does not allow the exercise of a discretion in the same way that Rule 58A does in relation to inter-parties discovery and therefore there was no power to make the order which the Master did. It is argued by the respondent that the learned Master was correct in finding that the discretion set out in Rule 58A must apply to Rule 60 for the sake of consistency and that he correctly exercised that discretion in allowing non-party discovery as sought.
The relevant parts of Rule 60 are as follows:
“[R 60.02] Powers of the Court
60.02 On the hearing of the summons or application, where:
(a) the applicant and the person against whom an order is sought both appear to the Court to be likely parties to subsequent proceedings; or
(b) the applicant is a party to proceedings and seeks an order against a person who is not a party to the proceedings; and
(c) the person against whom the order is sought appears likely to have or have had in his possession, custody or power, any document relevant to the proceedings or proposed proceedings,
the Court may order that person:
(i)to disclose whether those documents are in his possession, custody, or power;
(ii)to produce to the applicant such of those documents as are in his possession, custody or power; and
(iii)to make an affidavit stating whether any specified documents are or at any time have been in his possession, custody or power and, if not, when he parted with them, and what has become of them;
(iv)upon production of documents to do any other thing which could be ordered under Rules 58 and 59 if that person was a party to the action.”
In Channel Seven Adelaide P/L v Lane & Hurley [2004] SASC 177 the Court held that the words “any document relevant to the proceedings or proposed proceedings” should not differ from the test set out in Rules 58A.03 and 58A.04 which deal with inter-party discoveries. The relevant part of that Rule is as follows:-
“[R 58A.03] [Documents to be discovered]
58A.03 The parties must discover in their lists of documents, but discover only, the documents which are or have been in their possession, custody or power which are directly relevant to any issue arising on the pleadings.
[R 58A.04] [Order for further discovery]
58A.04 (1) Parties are not to include in their lists of documents any documents which are only indirectly relevant to any issue arising on the pleadings unless it is ordered by the Court where it is in the interests of justice to do so.
(2) Where an order under (1) is made after a list of documents has been filed a supplementary list of documents is to be filed within 14 days of the order.”
The Court followed the decision of His Honour Justice Bleby in Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co. No. 8 [2002] SASC 20. His Honour in that case said that the test now applicable to discovery between parties should be applied to non-party discovery. To do otherwise would be encouraging confusion and uncertainty. In other words it is clearly settled that for there to be non-party discovery the material sought to be discovered must at least be directly relevant. There is no dispute that the material in this case is not directly relevant. The purpose for which it is sought is to enable the respondent to find out the names of prospective witnesses who may help the Court as to what happened on the particular day which is the subject of the action.
It is argued however that although the material sought is not directly relevant and would not pass the initial test of Rule 60 nevertheless the Master was correct in applying the discretion which exists in Rule 58A to Rule 60. The Master held that to do otherwise would create inconsistency between the two Rules and have the same result that Justice Bleby was concerned about namely confusion and inconsistency. He therefore held that there is a discretion to allow discovery even though the material is not directly relevant and he exercised that discretion on the basis that it was very important to the obtaining of statements for the purposes of the respondent presenting its case.
In my view the Master had no power to order discovery of the material sought as it was not directly relevant. In my view there is a difference between consistency in the use of the relevance test being maintained for both forms of discovery as distinct from transporting a part of Rule 58A and making it applicable to Rule 60. The two cases cited only deal with the question of the appropriate test of relevance they do not deal with the question of whether the discretion in Rule 58A should be applied to Rule 60. In my view it is for the legislature to amend Rule 60 to add the discretion which exists in Rule 58A. In the absence of that there is no basis for the exercise of the discretion under Rule 60. I therefore allow the appeal.
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