Bayliss v Cassidy, Harper, Sturgess & State of Queensland
[1997] QSC 240
•19 December 1997
IN THE SUPREME COURT
OF QUEENSLAND
No. 4786 of 1988
[Bayliss v Cassidy, Harper, Sturgess & State of Queensland]
BETWEEN:
PETER JOHN BAYLISS
Plaintiff
AND:
ROBERT BERNARD CASSIDY
First Defendant
AND:
NEVILLE JOHN HARPER
Second Defendant
AND:
DESMOND GORDON STURGESS
Third Defendant
AND:
STATE OF QUEENSLAND
Fourth Defendant
JUDGMENT - HELMAN J.
Judgment delivered 19 December 1997
There are two applications before me: one by the defendants for an order that the plaintiff make further and better answers to a number of interrogatories delivered for his examination and other orders, and the other application by the plaintiff for two orders relating to discovery of documents, the details of which I shall give later. It was not disputed that Order 35 of the Rules of the Supreme Court, as it was before 1 May 1994, applied to the applications.
The plaintiff began the action on 22 December 1988 against the first defendant and, upon amendment of the writ of summons on 9 August 1989, the second, third and fourth defendants were joined. At all material times the first defendant was a police officer, the second defendant the Minister for Justice and Attorney-General, and the third defendant the Director of Prosecutions. The action arose out of the plaintiff's arrest on 20 May 1985 on a charge of conspiring unlawfully to use force to procure the miscarriage of women. The charge was dismissed on 4 July 1985 in the Holland Park Magistrates Court when the complainant offered no evidence. The plaintiff claims damages for false imprisonment, malicious process, malicious prosecution, and trespass to goods.
The current version of the statement of claim is a further amended statement of claim delivered on 24 September 1993:
"1.(a) At all material times, the plaintiff has been a duly qualified and registered medical practitioner, practising out of premises at 687 Logan Road, Greenslopes and at 8 Ridge Street, Greenslopes, Brisbane;
(b)At all material times, the first defendant was a Detective Sergeant First Class of the Queensland Police Force stationed at the Criminal Investigation Branch at Woolloongabba, Brisbane. In taking the steps set out below, he acted in the performance, or purported performance, of his duties as a member of the Police Force;
(c)The fourth defendant is sued pursuant to Section 9 of the Crown Proceedings Act 1980;
(d)By reason of the provision of Section 69B of the Police Act 1937-1984, the fourth defendant is liable for damages, excluding punitive damages, in respect of any tort committed by the first defendant in the performance of his duties as a member of the Police Force;
(e)At all material times the third defendant was the Director of Prosecutions, appointed under the Director of Prosecutions Act 1984, and acted in that capacity in respect of the matters pleaded herein;
(f)At all material times, the second defendant was the Minister for Justice and Attorney-General for the State of Queensland and acted in that capacity in respect of the matters pleaded herein;
(g)At all material times, the first defendant acted, in respect of the matters pleaded herein, either:-
(i)Upon his own motion; or
(ii)Upon the instructions or on behalf of the third defendant; or
(iii)Upon the instructions and on behalf of the second defendant; or
(iv)Upon the joint instructions of the second and third defendants.
1A.(a) The conduct and the state of mind of the second defendant alleged by paragraphs 2A, 4A, 4AA and 8 hereof were the conduct and the state of mind of the fourth defendant;
Particulars
At the time of the alleged conduct, the second defendant:
(i)was a Minister of the Crown of the State of Queensland;
(ii)was a member of the Executive Council of the State of Queensland;
(iii)was the Minister for Justice and Attorney-General of the State of Queensland;
(iv)engaged in the alleged conduct in those capacities.
(b)alternatively to (a), the fourth defendant is vicariously liable for the conduct of the second defendant alleged by paragraphs 2A, 4A, 4AA and 8 hereof.
Particulars
At the time of the alleged conduct, the second defendant was an officer in the employ of the State of Queensland engaged in the alleged conduct in that capacity.
1B.(a) The conduct and the state of mind of the third defendant, alleged by paragraphs 2A, 4A, 6A and 8 hereof were the conduct and the state of mind of the fourth defendant;
Particulars
At the time of the alleged conduct, the third defendant was the Director of Prosecutions of the State of Queensland and engaged in the alleged conduct in that capacity.
(b)alternatively to (a), the fourth defendant is vicariously liable for the conduct of the third defendant alleged by paragraphs 2A, 4A, 6A and 8 hereof.
Particulars
At the time of the alleged conduct, the third defendant was an officer in the employ of the State of Queensland engaged in the alleged conduct in that capacity.
2.At or about 10.30 a.m. on 20 May 1985 at 687 Logan Road the first defendant in the course of his duties arrested the plaintiff on the following charge:-
‘That between 30 April 1983 and 21 May 1985 at Brisbane in the State of Queensland he conspired with persons unknown unlawfully to use force with intent to procure the miscarriage of women.’
2A.That arrest was caused or effected maliciously and without reasonable and probable cause, by the first, second and third defendants.
3.On 20 May 1985, following the arrest, the plaintiff was taken into custody by the first defendant and imprisoned at Woolloongabba Police Station and Holland Park Magistrates Court until about 2.30 p.m.
4.At or about 2.30 pm on 20 May 1985, and following that arrest and imprisonment, the first defendant instituted the prosecution of the plaintiff by bringing him before the Magistrates Court at Holland Park, constituted by Mr Dettori S.M., and charging him upon the charge set forth in paragraph 2 hereof.
4AA.The institution of the prosecution of the plaintiff was caused or effected maliciously and without reasonable and probable cause by the first and second defendants.
4A.Thereafter, the first, second and third defendants maliciously and without reasonable cause continued to prosecute the above charge against the plaintiff. They caused the court to remand the plaintiff to 4 July 1985.
5.Over the objection of the first defendant, the court released the plaintiff on his own undertaking to come before the Magistrates Court, Holland Park at such time as was necessary for the hearing of the committal proceedings in respect of the charge which had been preferred against him.
5A.The above arrest, imprisonment and prosecution were unlawful, in that the first defendant did not believe, on reasonable grounds, that the offence charged had been committed.
6.On or about 4 July 1985 the charge was resolved in the plaintiff's favour when it was dismissed by Mr Muir S.M. at the Magistrates Court, Holland Park as the prosecution offered no evidence.
6A.After the institution of the prosecution of the plaintiff by the first defendant as pleaded in paragraph 4 hereof, the third defendant took over the conduct of the proceedings against the plaintiff, and prosecuted him maliciously and without reasonable and probable cause.
6B.Further: the first defendant obtained search warrants dated 14 May 1985, pursuant to Section 679 of the Criminal Code, purporting to authorise searches of the premises of the plaintiff at 687 Logan Road and at 8 Ridge Street.
6C.Pursuant to those warrants, the first defendant caused to be seized patient records, surgical instruments and equipment on 20 May 1985, from both 687 Logan Road and 8 Ridge Street.
6D.The plaintiff was entitled to possession of those records, surgical instruments and equipment.
6E.The first defendant obtained the warrant maliciously, and without reasonable and probable cause.
6F.The first defendant failed to take the things seized forthwith before a justice.
6G.On 25 June 1985, the Full Court of Queensland held that the warrant was unlawful in so far as it related to the seizure of the documents, and ordered their return.
7.By reason of the matters aforesaid, the plaintiff was wrongfully imprisoned and deprived of his liberty, and he was greatly injured in his credit, character, personal and professional reputation. He suffered significant and considerable mental pain and anguish, as an eminent medical practitioner in the area of fertility control, and he has been put to considerable trouble, inconvenience, anxiety and expense. He has thereby suffered loss and damage, excluding loss of income. The plaintiff has suffered special damages, full particulars of which will be supplied prior to trial.
8.The plaintiff, in addition to the matters previously alleged herein, further claims exemplary damages by reason of the malicious conduct of the first, second and third defendants as set out herein.
Particulars
(a)The first, second and third defendants well knew that the plaintiff had first a satisfactory explanation of his medical practise, including the fact that at all times he had carried out only lawful terminations of pregnancy;
(b)The first, second and third defendants failed to investigate and seek professional advice as to the nature of the medical procedures carried out by the plaintiff;
(c)By reason of the matters aforesaid, doing such things (or, alternatively, omitting to do necessary things) so as to bring the system of criminal justice within the State of Queensland into odium and contempt;
(d)Conducting a raid upon the plaintiff's clinic during business hours in the presence of patients and amid publicity which the first, second and third defendants by themselves, their servants or agents arranged;
(e)Wrongfully taking patient records in an indiscriminate manner and without regard to their relevance to the alleged offence;
(f)Failing to bring the seized goods forthwith before a justice.
AND the plaintiff claims:-
(i)Damages for false imprisonment, malicious process, malicious prosecution and trespass to goods;
(ii)Exemplary damages;
(iii)Costs."
The version of the defence accepted by all parties as a basis for argument on the hearing of these applications was a further amended defence of the first defendant and amended defence of the remaining defendants, delivered on 16 March 1995 (It has been amended since, but not in a way material to the applications.):
"1. The defendants admit the allegations contained in paragraphs 1(a), 1(c), 6, 6B and 6G of the Statement of Claim.
2. In respect of the allegations contained in paragraphs 1(b), 1(d) and 1(g) of the Statement of Claim the defendants
(a)admit that at all material times the first defendant was a Detective Sergeant First Class of the Queensland Police Force stationed at the Criminal Investigation Branch at Woolloongabba, Brisbane and was acting in the performance of his duties as a member of the Police Force;
(b)admit the provisions contained in s. 69B of the Police Act 1937-1988;
(c)otherwise deny the allegations in paragraph 1(b), 1(d) and 1(g) of the Statement of Claim.
3. In respect of the allegations contained in paragraphs 1(e) and 1B of the Statement of Claim the defendants:
(a)admit that at all material times from 17 December 1984, the third defendant was the Director of Prosecutions, appointed under the Director of Prosecutions Act 1984 and was acting in that capacity;
(b)otherwise deny the allegations in paragraphs 1(e) and 1B of the Statement of Claim.
4. In respect of the allegations contained in paragraphs 1(f) and 1A of the Statement of Claim the defendants:
(a)admit that at all material times from 19 August 1983, the second defendant was the Minister for Justice and Attorney-General and as such a Minister for the Crown of the Fourth Defendant and was acting in that capacity;
(b)admit that at all material times from 19 August 1983, the second defendant was a member of the Executive Council of the fourth defendant;
(c)otherwise deny the allegations in paragraph 1(f) and 1A of the Statement of Claim.
5. In respect of the allegations contained in paragraph 2 of the Statement of Claim the defendants:-
(a)admit that at or about 11.15 a.m. on 20th May, 1985 the first defendant effected the arrest of the plaintiff on the charge:-
‘That between 30th April 1981 and 21st May, 1985 at Brisbane in the State of Queensland he conspired with persons unknown unlawfully to use force with intent to procure the miscarriage of women.’
(b)say that, before the said arrest, the First Defendant with reasonable cause suspected that the crime hereinbefore referred to had been committed and with reasonable cause he suspected that the plaintiff had committed the said crime; and
(c)say that, in the premises, the said arrest of the plaintiff by the First Defendant was lawful, proper and justifiable;
(d)otherwise deny the facts alleged therein.
6. In respect of the allegations contained in paragraph 3 of the Statement of Claim the Defendants:-
(a)admit that on the 20th May 1985, following the arrest, the plaintiff was taken into custody by the First Defendant;
(b)otherwise deny the allegations contained therein.
7. In respect of the allegations contained in paragraph 4 of the Statement of Claim the defendants:-
(a)admit that at or about 2.15 p.m. on 20th May, 1985 following the arrest of the plaintiff, the plaintiff appeared before the Magistrates Court at Holland Park constituted by Mr Dettori S.M. and was remanded to appear before the said Court on the Fourth day of July 1985;
(b)otherwise deny the allegations of fact contained therein.
8. In respect of the allegations contained in paragraph 5 of the Statement of Claim the defendants:
(a)admit the said Court remanded the plaintiff on his own undertaking to appear at the said Court on the Fourth day of July 1985 for mention;
(b)otherwise deny the allegations of fact alleged in paragraph 5 of the Statement of Claim.
9. In respect of the allegations contained in paragraph 6A of the Statement of Claim the defendants:-
(a)admit that following the arrest of the plaintiff referred to in paragraph 5(a) herein the third defendant took over the conduct of the proceedings against the plaintiff;
(b)otherwise deny the facts alleged therein.
10. The defendants deny the allegations contained in paragraphs 2A, 4AA, 4A, 5A, 6C, 6D, 6E, 6F, 7 and 8 of the Statement of Claim.
11. Pursuant to the provisions of s. 25 of the Director of Prosecutions Act 1984 these proceedings are not maintainable against the defendants.
12. Save as aforesaid the defendants deny each and every allegation contained in the Statement of Claim."
The defendants sought orders that the plaintiff make further and better answers to interrogatories which were listed in a schedule to their summons. The interrogatories were delivered for the plaintiff’s examination on 16 March 1995 and answered by his affidavit affirmed on 28 October 1995. In addition, the defendants applied for an order that answers to four interrogatories (nos. 74(d), 77(b), 77(c), and 77(d)) be taken off the Court file on the ground that they contained scandalous matter, but that application was abandoned at the hearing. The defendants also applied for an order, in the alternative to one requiring the plaintiff to make further and better answers to twelve interrogatories in their schedule (nos. 78 to 89 inclusive), that the plaintiff provide further and better particulars of his further amended statement of claim.
The defendants delivered a very large number of interrogatories, covering 246 pages in all. The answers covered 203 pages. No objection based on the number of the interrogatories was taken. In argument on the application the interrogatories were divided into twenty-three categories. There was, however, some overlapping in that some of the interrogatories appeared in more than one category.
I shall now deal with each of the categories.
In the first four categories were interrogatories to which no objection was taken but the defendants asserted that the answers given were inadequate.
The plaintiff answered the interrogatories in the first and second categories by saying in various ways that he had no knowledge of the matter about which he had been asked or did not recall it. The answers did not show that enquiries had been made, and did not purport to be answered from knowledge, information and belief. The only interrogatory in the first category was no. 1(i), and the interrogatories in the second category were nos. 1(g), 1(h), 1(j), 1(k), 1(l), 4(a), 5(a), 8(a)(vi), 8(c)(i), 10(e), 10(f), 10(g), 11(a), 11(b), 11(c), 11(d), 11(e), 11(f), 11(g), 11(h), 11(i), 11(j), 11(k), 11(l), 11(m), 11(n), 11(o), 11(p), 12(a), 13(a), 13(b), 13(c)(i), 13(d), 13(e), 13(f)(i), 14(a), 14(b), 15(b), 16(a), 16(c), 17(b), 17(c), 17(e), 17(h), 17(j), 17(k), 18(a), 19(a), 19(e), 19(h), 19(i), 19(l), 20(b)(iii)A, 22(a), 22(b)(i), 22(b)(ii), 22(b)(iii), 22(b)(iv), 22(b)(v), 22(b)(vi), 22(b)(vii), 22(b)(viii), 22(b)(ix), 22(b)(x), 22(b)(xi), 22(b)(xii), 22(b)(xiii), 22(b)(xiv), 22(b)(xv), 22(b)(xvi), 22(b)(xvii), 22(b)(xviii), 24(g), 24(n), 24(o), 26(a), 26(f)(ii), 27(a), 28(a), 28(b), 28(e), 28(g), 28(i), 28(k), 28(m), 28(o), 31(e), 31(f), 33(a), 33(b), 35(c), 35(f), 35(g), 35(l), 35(p), 35(t), 35(bb)(i)A, 35(bb)(i)B, 35(bb)(iii)A, 35(bb)(iii)B, 35(bb)(v)A, 35(bb)(v)B, 35(bb)(vii)A, 35(bb)(vii)B, 35(bb)(ix)A, 35(bb)(ix)B, 36(c), 36(f), 36(g), 36(l), 36(p), 36(t), 36(z)(i)A, 36(z)(i)B, 36(z)(iii)A, 36(z)(iii)B, 36(z)(v)A, 36(z)(v)B, 36(z)(vii)A, 36(z)(vii)B, 36(z)(ix)A, 36(z)(ix)B, 37(c), 37(e), 37(f), 37(k), 37(o), 37(s), 37(y)(i)A, 37(y)(i)B, 37(y)(iii)A, 37(y)(iii)B, 37(y)(v)A, 37(y)(v)B, 37(y)(vii)A, 37(y)(vii)B, 37(y)(ix)A, 37(y)(ix)B, 38(c), 38(e), 38(f), 38(k), 38(o), 38(s), 38(aa)(i)A, 38(aa)(i)B, 38(aa)(iii)A, 38(aa)(iii)B, 38(aa)(v)A, 38(aa)(v)B, 38(aa)(vii)A, 38(aa)(vii)B, 38(aa)(ix)A, 38(aa)(ix)B, 39(c), 39(f), 39(g), 39(l), 39(p), 39(t), 39(bb)(i)A, 39(bb)(i)B, 39(bb)(iii)A, 39(bb)(iii)B, 39(bb)(v)A, 39(bb)(v)B, 39(bb)(vii)A, 39(bb)(vii)B, 39(bb)(ix)A, 39(bb)(ix)B, 40(c), 40(f), 40(g), 40(l), 40(p), 40(r), 41(a), 41(c), 41(d), 41(i), 41(m), 41(o), 41(p), 42(a), 42(d), 42(e), 42(j), 42(n), 42(p), 42(q), 43(c), 43(e), 43(f), 43(k), 43(o), 43(q), 44(c), 44(e),44(f), 44(k), 44(o), 44(q), 44(r), 44(s), 44(aa)(i)A, 44(aa)(i)B, 44(aa)(iii)A, 44(aa)(iii)B, 44(aa)(v)A, 44(aa)(v)B, 44(aa)(vii)A, 44(aa)(vii)B, 44(aa)(ix)A, 44(aa)(ix)B, 45(c), 45(f), 45(g), 45(l), 45(p), 46(a), 46(c), 46(d), 46(i), 46(m), 47(d), 47(e), 47(j), 47(n), 48(e), 48(g), 48(h), 48(m), 48(q), 49(f), 49(h), 49(i), 49(n), 49(r), 49(v), 49(bb)(i)A, 49(bb)(i)B, 49(bb)(iii)A, 49(bb)(iii)B, 49(bb)(v)A, 49(bb)(v)B, 49(bb)(vii)A, 49(bb)(vii)B, 49(bb)(ix)A, 49(bb)(ix)B, 50(c), 50(e), 50(f), 50(k), 50(o), 50(s), 50(bb), 50(cc), 50(dd)(i)A, 50(dd)(i)B, 50(dd)(iii)A, 50(dd)(iii)B, 50(dd)(v)A, 50(dd)(v)B, 50(dd)(vii)A, 50(dd)(vii)B, 50(dd)(ix)A, 50(dd)(ix)B, 51(d), 51(f), 51(g), 51(l), 51(p), 51(r), 52(c), 52(e), 52(f), 52(k), 52(o), 52(q), 53(a), 53(d), 64(e), 67(a), 67(b), 67(c), 67(d), 68(b), 68(c), 69, 71(c), 73(a), 76(a), and 76(b).
A party interrogated must answer to the best of his knowledge, information and belief unless he objects to answer: Lyell v. Kennedy (no. 2) (1883) 9 App.Cas. 81 at p.85; Adams v. Dickeson [1974] V.R. 77 at p.83; and Sharpe v. Smail (1975) 5 A.L.R. 377. As Gibbs J. said in the last-mentioned case:
“It is not enough to say that he has no knowledge, because he is bound also to answer according to information acquired from servants or agents who have gained it in that capacity, and, where appropriate, his answer must show that he has made all proper inquiries and that having made them he has no information enabling him to answer further: cf Bank of Russian Trade Ltd v. British Screen Productions Ltd [1930] 2 K.B. 90; Ormond v. Gunnersen [1920] V.L.R. 402.” (p.379)
A party interrogated is obliged to make all reasonable enquiries not only from those who are his servant or agents at the time of the interrogation but also from those who were his servants or agents at the material time: National Trustees, & c., Co. of Australasia Ltd v. Christian [1933] A.L.R. 111; Derham v. AMEV Life Insurance Co Ltd (1978) 20 A.C.T.R. 23; Stanfield Properties v. National Westminster Bank [1983] 1 W.L.R. 568; Spedley Securities Ltd (in liq.) & Anor v. Bank of New Zealand & Ors (no. 2) (1991)10 A.C.L.C. 77; The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v. Discovery Bay Developments PtyLtd [1995] 2 Qd.R. 121; Bayliss v. Cassidy & Ors (Appeal no. 96 of 1993, unreported, 6 December 1993). Dicta to the effect that a party interrogated cannot be required to make enquiries of former servants or agents in Bolckow v. Fisher (1882) 10 Q.B.D. 161 at p.169 per Brett L.J. and of Hoare J. in Everingham v. Commonwealth [1973] Qd.R. 185 at p.192 must now be regarded as at odds with the weight of authority: The Corporation etc v. Discovery Bay Developments Pty Ltd at pp.126 -127. The test is one of reasonableness and not whether or not the employment had been terminated, as Sir Robert Megarry V.-C. said in Stanfield Properties v. National Westminster Bank at p.570.
In the absence of any objection, a party interrogated must give an answer to those parts of an interrogatory he is able to answer from knowledge, information and belief and state as to the remainder that he has no personal knowledge or belief: Adams v. Dickeson , p.82.
A party interrogated cannot refuse to answer an interrogatory on the ground that he has no personal knowledge and the only information he can get is from his solicitor if the subject of the interrogatory is not a privileged communication: Foakes v. Webb (1884) 28 Ch. D. 287.
The plaintiff sought to meet the defendants’ application in relation to the first two categories in two ways. First, reliance was placed upon evidence of the plaintiff by way of affidavit. That evidence revealed in a general way enquires that the plaintiff had made of Ms Claudia McEwen, described as “an employee at the clinic throughout the relevant period” and of Dr Dawn Cullen, a colleague. In addition, the plaintiff referred to other possible lines of enquiry but dismissed them: Dr Bruce Errey with whom the plaintiff had had a dispute, other staff at the clinic whose whereabouts were he said unknown to him, and journalists not “personally known” to him. He also referred to the absence of patient and other records. The affidavit evidence of the plaintiff was expressed in general terms and was not directed to any particular interrogatory. The second way in which the plaintiff sought to oppose the defendants’ application was by urging me to conclude that objections not taken in the orthodox way by the plaintiff could now be relied upon by him to show that I should exercise my discretion to refuse the defendants the relief they seek.
In my view neither suggested answer to the defendants’ application is sufficient in this case. The defendants are entitled to know with reasonable precision what enquiries the plaintiff has made in relation to each interrogatory. The generalities relied on by the plaintiff are not enough. There is authority for the proposition that a party interrogated who does not object to answering but gives an inadequate answer waives any right to object later: Adams v. Dickeson, p.83. Mr McMurdo Q.C., for the defendants, did not seek to take his submissions as far as to suggest that by failing to object the plaintiff had made a binding election, but nonetheless urged me to conclude that the plaintiff should be required to follow the usual practice. In my view that submission is correct, and any objection to answering an interrogatory should, in the absence of special circumstances, be taken in the orthodox way. I see no special circumstances in this case and therefore no reason to permit a departure from the usual practice. At all events the objection chiefly relied on was oppression arising from the alleged futility of further enquiry. As I have said, that issue must be raised with precision in relation to each interrogatory.
I shall therefore order that the plaintiff make further and better answers to the interrogatories in the first and second categories, with the exception of interrogatory no. 47(v) in the second category, to which I shall refer again when I come to the fifteenth category.
The plaintiff did not answer the interrogatories in the third category in view of his answers to those in the second. The interrogatories in the third category were nos. 4(b), 4(c), 4(d), 4(e), 8(c)(ii), 10(h), 13(g), 14(c), 16(d), 16(e), 16(f), 16(g), 16(h), 16(i), 17(d), 17(f), 17(g), 17(i), 17(l), 17(m), 18(b), 18(c), 18(d), 19(k), 19(m), 19(n), 20(b)(iii)B, 22(c), 24(p), 24(q), 26(f)(iii), 28(f), 28(h), 28(j), 28(l), 28(n), 28(p), 31(g), 31(h), 31(i), 31(j), 35(d), 35(e), 35(h), 35(i), 35(j), 35(k), 35(m), 35(n), 35(o), 35(q), 35(u), 35(v), 35(bb)(ii)A, 35(bb)(ii)B, 35(bb)(iv)A, 35(bb)(iv)B, 35(bb)(vi)A, 35(bb)(vi)B, 35(bb)(viii)A, 35(bb)(viii)B, 35(bb)(x)A, 35(bb)(x)B, 36(d), 36(h), 36(i), 36(j), 36(k), 36(m), 36(n), 36(o), 36(q), 36(u), 36(v), 36(z)(ii)A, 36(z)(ii)B, 36(z)(iv)A, 36(z)(iv)B, 36(z)(vi)A, 36(z)(vi)B, 36(z)(viii)A, 36(z)(viii)B, 36(z)(x)A, 36(z)(x)B, 37(d), 37(g), 37(h), 37(i), 37(j), 37(l), 37(m), 37(n), 37(p), 37(t), 37(u), 37(y)(ii)A, 37(y)(ii)B, 37(y)(iv)A, 37(y)(iv)B, 37(y)(vi)A, 37(y)(vi)B, 37(y)(viii)A, 37(y)(viii)B, 37(y)(x)A, 37(y)(x)B, 38(d), 38(g), 38(h), 38(i), 38(j), 38(l), 38(m), 38(n), 38(p), 38(t), 38(u), 38(aa)(ii)A, 38(aa)(ii)B, 38(aa)(iv)A, 38(aa)(iv)B, 38(aa)(vi)A, 38(aa)(vi)B, 38(aa)(viii)A, 38(aa)(viii)B, 38(aa)(x)A, 38(aa)(x)B, 39(d), 39(h), 39(i), 39(j), 39(k), 39(m), 39(n), 39(o), 39(q), 39(u), 39(v), 39(bb)(ii)A, 39(bb)(ii)B, 39(bb)(iv)A, 39(bb)(iv)B, 39 (bb)(vi)A, 39(bb)(vi)B, 39(bb)(viii)A, 39(bb)(viii)B, 39(bb)(x)A, 39(bb)(x)B, 40(d), 40(h), 40(i), 40(j), 40(k), 40(m), 40(n), 40(o), 40(q), 40(s), 40(t), 40(u), 40(v), 40(y), 41(b), 41(e), 42(f), 41(g), 41(h), 41(j), 41(k), 41(l), 41(n), 41(q), 41(r), 41(s), 41(v), 42(b), 42(c), 42(f), 42(g), 42(h), 42(i), 42(k), 42(l), 42(m), 42(o), 42(r), 42(s), 42(t), 42(w), 43(d), 43(g), 43(h), 43(i), 43(j), 43(l), 43(m), 43(n), 43(p), 43(r), 43(s), 43(t), 43(u), 43(y), 44(d), 44(g), 44(h), 44(i), 44(j), 44(l), 44(m), 44(n), 44(p), 44(t), 44(u), 44(aa)(ii)A, 44(aa)(ii)B, 44(aa)(iv)A, 44(aa)(iv)B, 44(aa)(vi)A, 44(aa)(vi)B, 44(aa)(viii)A, 44(aa)(viii)B, 44(aa)(x)A, 44(aa)(x)B, 45(d), 45(h), 45(i), 45(j), 45(k), 45(m), 45(n), 45(o), 45(q), 46(b),46(e), 46(f), 46(g), 46(h), 46(j), 46(k), 46(l), 46(n), 47(f), 47(g), 47(h), 47(i), 47(k), 47(l), 47(m), 47(o), 48(f), 48(i), 48(j), 48(k), 48(l), 48(n), 48(o), 48(p), 48(r), 49(g), 49(j), 49(k), 49(l), 49(m), 49(o), 49(p), 49(q), 49(s), 49(w), 49(x), 49(bb)(ii)A, 49(bb)(ii)B, 49(bb)(iv)A, 49(bb)(iv)B, 49(bb)(vi)A, 49(bb)(vi)B, 49(bb)(viii)A, 49(bb)(viii)B, 49(bb)(x)A, 49(bb)(x)B, 50(d), 50(g), 50(h), 50(i), 50(j), 50(l), 50(m), 50(n), 50(p), 50(t), 50(u), 50(dd)(ii)A, 50(dd)(ii)B, 50(dd)(iv)A, 50(dd)(iv)B, 50(dd)(vi)A, 50(dd)(vi)B, 50(dd)(viii)A, 50(dd)(viii)B, 50(dd)(x)A, 50(dd)(x)B, 51(e), 51(h), 51(i), 51(j), 51(k), 51(m), 51(n), 51(o), 51(q), 51(v), 52(d), 52(g), 52(h), 52(i), 52(j), 52(l), 52(m), 52(n), 52(p), 52(r), 52(s), 52(t), 52(u), 52(x), 53(b), 64(f), 73(c), and 76(c).
It follows from the order I intend making in relation to the interrogatories in the second category that I should make an order that the plaintiff make further and better answers to those in the third category - with the exception of no. 35(e), which was also in the tenth category and was abandoned by the defendants at the hearing.
The following interrogatories in the fourth category were abandoned at the hearing: nos. 7(a), 7(e), 9(b)(ii), 16(b), 19(f), 19(g), 26(d), 26(e), 31(d), 65(a), 65(b), 65(c), 65(e), 65(f), 65(h), 65(i), 65(j), 65(k), 65(l), 65(m), 65(n), 65(o), 65(q), 65(s), 65(t), 65(u), 65(w), 65(x), 65(y), 65(z), 65(bb), 65(ff), 65(gg), 65(hh), 65(ii), 65(jj), 71(a), and 71(b). The remaining interrogatories in the fourth category were nos. 30(a), 31(c), 57(a), 58(a), 59(a), 60(a), and 61(a). The complaint in each case was that the answer was not a sufficient one. The answer to no. 30(a) was in my view insufficient because although the plaintiff admitted that the conversation referred to in the interrogatory took place he made no reference to any words he said in the course of it. The plaintiff failed to answer the question in no 31.(c) directly, but I think his answer was sufficient. Nos. 57(a), 58(a), 59(a), 60(a), and 61(a) were directed to what the plaintiff believed about certain matters. Each has been answered by saying what the plaintiff would have believed, not whether he did or did not believe such-and-such to be so. Each answer is therefore inadequate in my view. I should add that although interrogatory no.55 is referred to inter alia in each of those interrogatories the plaintiff has answered by reference to no. 54. As will appear when I deal with the eleventh category, I do not think that a further answer to no.55 should be required, but it appears from the plaintiff’s answers already given that no.55 is not relevant to his answers to nos. 57(a), 58(a), 59(a), 60(a), and 61(a). I shall therefore order that the plaintiff make further and better answers to the interrogatories in the fourth category with the exception of those abandoned at the hearing and no.31(c).
The following interrogatories in the fifth category were abandoned at the hearing: nos. 7(d), 9(c), 20(a)(v), and 46(w)(iv). The remaining interrogatories in that category were nos. 40(w), 41(t), 42(u), 43(v), 44(v), 45(w), 46(t), 47(u), 49(y), and 50(v). Each asked whether a specified patient’s gynaecological and obstetric history was “normal”. Each was objected to as vague and irrelevant. In my view the first objection has merit: the word “normal” is too uncertain and for that reason the interrogatories were oppressive. I therefore uphold the objections to them.
In the sixth category interrogatories nos. 7(e) and 20(a)(vi) were abandoned at the hearing. No. 7(e) had been abandoned in the fourth category, as I have related. The remaining interrogatories in the sixth category were nos. 40(x), 41(u), 42(v), 43(w), and 44(w). They fail as a consequence of my ruling adverse to the defendants on nos. 40(w), 41(t), 42(u), 43(v), and 44(v) respectively in the fifth category.
The seventh and eighth categories (nos. 7(d) and 20(a)(v) in the seventh, and nos. 7(e) and 20(a)(vi) in the eighth) were abandoned at the hearing. Nos. 7(d) and 20(a)(v) had been abandoned in the fifth category, 7(e) in the fourth, and 20(a)(vi) in the sixth.
The ninth category comprised interrogatories nos. 8(a)(i), 8(a)(ii), 8(b)(i), 8(b)(ii), 21, 32(a), 35(b), 36(b), 37(b), 38(b), 39(b), 40(b), 43(b), 44(b), 45(b), 46(w)(iv), 47(c), 47(w)(iii), 48(d), 48(aa), 49(e), 50(b), 50(z), 51(c), and 52(b). All of them were abandoned at the hearing, except nos. 8(a)(ii), 8(b)(ii), and 32(a) (no. 46(w)(iv) had already been abandoned in the fifth category). The primary objection taken to each of nos. 8(a)(ii) and 8(b)(ii) was that the interrogatory was directed to the interpretation of a document of which the plaintiff was not the author. Mr Morrison Q.C., for the plaintiff, did not seek to justify those objections, but argued that each interrogatory was too wide in that it was not confined to any time relevant to the action. In my view those objections should be upheld. Interrogatory no. 32(a) asked the plaintiff to verify the transcript of an audiotape. The purpose of that interrogatory was to save costs, but in my view it too was oppressive as it required the plaintiff to undertake the process of comparison and interpretation. Even accepting, as was submitted on behalf of the defendants, that Kadlunga v. Electricity Trust (1987) 43 S.A.S.R. 313 is authority for the proposition that an interrogatory of this kind may be directed to aspects of a written record of interview or a transcript of court proceedings, I nonetheless conclude that that interrogatory transgresses the rule against oppression for the reason I have given.
In the tenth category interrogatories nos. 8(a)(iii) and 32(b) fail in consequence of my rulings adverse to the defendants on nos. 8(a)(ii) and 32(a) respectively, and no. 8(a)(iv) was too wide in that it was not confined to any time relevant to the action. No. 8(a)(v), also in the tenth category, fails in consequence of the failure of no. 8(a)(iv). The remainder in the tenth category (nos. 35(e), 36(e), 39(e), 40(e), and 45(e)) were abandoned at the hearing.
Interrogatories in the eleventh category were objected to as oppressive in that they were too vague and “ in specific” (sic) (nos. 8(a)(ii) and 55), ambiguous and vague (nos. 22(d) and 35(w)), and vague (nos. 29(d), 36(w), 37(v), 38(v), 39(w), 40(w), 41(t), 42(u), 43(v), 44(v), 45(w), 46(t), 47(u), 49(y), and 50(v)). I have already given my ruling on no. 8(a)(ii) which was adverse to the defendants. It was also in the ninth category. No. 55 followed from an answer sought to no. 54 and asked whether the plaintiff made use of any other criterion or criteria, and if so what criterion or criteria, when deciding whether or not he could lawfully terminate a pregnancy in a specified period in May 1995. The reference to “other” criterion or criteria is to distinguish those being asked about from those referred to in no. 54. The expression “make use of” rendered the interrogatory so vague as to be oppressive in my view. Interrogatory no. 22(d) asked about the “situations” in which women sought terminations of pregnancy “[a]s at April 1985". It asked a relevant question in my view and is not ambiguous or vague. It was, however, too wide in that it was not confined to operations performed by the plaintiff. Interrogatory no. 35(w) asked whether a specified patient’s gynaecological and obstetric history was “normal”. In my view that interrogatory was too vague and for that reason oppressive. Interrogatory no. 29(d) asked the plaintiff whether he used “the criteria of whether or not it was in the patient’s best interests” when he performed a termination of pregnancy. The interrogatory lacked precision. It was drawn too widely in that it was not confined to any time relevant to the action. I therefore uphold the objection to it. Interrogatories nos. 36(w), 37(v), 38(v) and 39(w) were in terms similar to those of no. 35(w) and were properly objected to for the same reason as no. 35(w) was. I have already given my rulings adverse to the defendants on interrogatories nos. 40(w), 41(t), 42(u), 43(v), 44(v), 45(w), 46(t), 47(u), 49(y) and 50(v). They were also in the fifth category.
In the twelfth category nos. 29(e), 35(x), 36(x), 37(w), 39(x), 45(x), 46(u), 49(z) and 50(w) fail in consequence of my rulings adverse to the defendants on nos. 29(d), 35(w), 36(w), 37(v), 39(w), 45(w), 46(t), 49(y) and 50(v) respectively. There is an obvious misprint in no. 49(z): 49(w) is referred to when clearly 49(y) was intended. I have already given my ruling adverse to the defendants on the remaining interrogatories in the twelfth category, which were also in the sixth category: 40(x), 41(u), 42(v), 43(w) and 44(w).
The thirteenth category contained only interrogatory no. 8(b)(ii), upon which I have already given my ruling which was adverse to the defendants. It was also in the ninth category.
In the fourteenth category, in which the objection taken was that an assumption was made of a matter not admitted, only nos. 8(b)(iii), 12(b), 12(c) and 64(a) remain to be considered. I have already ruled adversely to the defendants on the other interrogatories in that category: nos. 35(w), 36(w), 37(v), 38(v) and 39(w), which were also in the eleventh category; and nos. 40(w), 41(t), 42(u), 43(v), 44(v), 45(w), 46(t), 47(u), 49(y) and 50(v), which were also in the fifth category. In interrogatories nos. 8(b)(iii), 12(b), 12(c) and 64(a) facts not admitted were assumed. An objection based on that ground without more is, however, insufficient. The objections must go further and raise grounds of oppression or unfairness: Thiess v. T.C.N. Channel Nine Pty Limited (no.3) [1992] 1 Qd.R.587. Mr Morrison, while not challenging the rule for which Thiess v. T.C.N Channel Nine Pty Limited (no.3) is authority, argued that it is not necessary for grounds of oppression and unfairness to be raised explicitly in circumstances where oppression or unfairness is manifest. Although I accept the force of that submission I am not persuaded that the oppression or unfairness contended for is manifest in the case of any of the four interrogatories in question. The plaintiff will therefore be required to make further and better answers to those interrogatories.
In the fifteenth category only interrogatories nos. 47(v), 64(b) and 64(c) remain for consideration. No. 47(v), which was also in the second category, fails in consequence of my ruling adverse to the defendants on no. 47(u) which was in the fifth category. Further and better answers will, however, be required to nos. 64(b) and 64(c) in consequence on my ruling on no. 64(a). (There is an obvious misprint in nos. 64(b) and 64(c) where “54" appears when clearly “64" was intended.) I have already ruled adversely to the defendants on the other interrogatories in that category: nos. 35(x), 36(x), 37(w), 39(x), 45(x), 46(u), 49(z) and 50(w), which were also in the twelfth category; and nos. 40(x), 41(u), 42(v), 43(w), and 44(w) which were also in the sixth category.
The plaintiff has objected to answering interrogatories in the sixteenth category (nos. 29(b), 57(b), 57(c), 58(b), 58(c), 59(b), 59(c), 60(b), 60(c), 61(b), 61(c) and 62) on the ground that they are in the nature of cross-examination. That will not be a sufficient objection if the question is relevant to an issue in the action. If it is relevant to an issue it does not matter that the form of the question is appropriate to cross-examination. If, however, it is not material to an issue but would be permissible in cross-examination only on a question of credit or to test the evidence of a witness it will not be permissible as an interrogatory: see Coal Cliff Collieries Pty Ltd v. C.E. Heath Insurance Broking (Australia) Pty Ltd (1986) 5 N.S.W.L.R. 703 at pp.709-710, and Hansen v. Border Morning Mail Pty Ltd (1987) 9 N.S.W.L.R. 44 at pp.57-58. Interrogatory no. 29(b) concerned the procedure adopted for persons seeking termination of pregnancy in May 1985. It was objected to as a fishing interrogatory and as cross-examination. An interrogatory cannot be described as fishing if it is directed to obtaining information as to facts relevant to an issue raised in the pleadings: Sharpe v. Smail at p.381, and Petcham Ltd (in liq.) v. B.F. Goodrich Chemical Ltd [1982] V.R. 485. In my view the question is directed to such an issue and I therefore overrule the “fishing” objection. For the same reason I overrule the “cross-examination” objection. Interrogatories nos. 57(b), 58(b), 59(b), 60(b) and 61(b) asked the plaintiff to express opinions on matters of law in my view, and so the plaintiff should not be required to answer them. Interrogatories nos 57(c), 58(c), 59(c), 60(c) and 61(c) were directed to how the plaintiff came to hold opinions on matters of law. I shall allow those objections. Interrogatory no. 62 was too wide in that it was not confined to any time relevant to the action.
It follows from my rulings adverse to the defendants on interrogatories nos. 57(c), 58(c), 59(c), 60(c), 61(c) and 62 that interrogatories nos. 57(d), 58(d), 59(d), 60(d), 61(d) and 63 - all of which are in seventeenth category - cannot be sustained.
I have already ruled on the interrogatories in the eighteenth category (interrogatories objected to on the ground that they are fishing): nos. 29(b) and 62, which were also in the sixteenth category; and no. 29(d) which was also in the eleventh category. I ruled adversely to the defendant on nos. 62 and 29(d), but not on 29(b).
I have already ruled adversely to the defendants on the interrogatories in the nineteenth category (interrogatories not answered as a result of an objection to answering interrogatories on the ground that they were fishing) no. 29(e), which was also in the twelfth category; and no. 63, which was also in the seventeenth category.
I have already ruled adversely to the defendants on the interrogatories in the twentieth category (interrogatories objected to on the ground that they were oppressive): no. 55, which was also in the eleventh category; and no. 62, which was also in the sixteenth category.
I have already ruled adversely to the defendants on the only interrogatory in the twenty-first category - no. 63, which was also in the seventeenth category.
The twenty-second category (interrogatories nos. 74(d), 77(b), 77(c), and 77(d)) was abandoned at the hearing. The defendants had asserted that the answers to those interrogatories were scandalous.
In the twenty-third category the ground of objection taken to each interrogatory (nos. 78 to 89 inclusive) was that it was not properly an interrogatory but rather a request for further and better particulars of the further amended statement of claim. On behalf of the defendants it was argued that that was not a proper objection since it has been held that one of the objects of interrogatories is to obtain such particulars: W.A. Pines Pty Ltd v. Bannerman (1980) 30 A.L.R. 559 at p.574 per Lockhart J. See also Saunders v. Jones (1877) 7 Ch. 435, and Green v. Green (1912) 13 S.R. (N.S.W.) 126. At the hearing Mr McMurdo said that in lieu of an order requiring further and better answers to those interrogatories his clients would be content with an order requiring the provision of the further and better particulars of the further amended statement of claim sought in the interrogatories. Mr Morrison, on behalf of the plaintiff, agreed to supply such further and better particulars saving all just exceptions. The defendants agreed that that would be the proper form of the order. Since the parties have agreed on that matter and since the order agreed on will achieve same result - the provision of particulars - as an order requiring further and better answers to the interrogatories I shall not consider the application for the latter order in relation to interrogatories nos. 78 to 89 inclusive further.
It follows then that the plaintiff will be required to make further and better answers to the interrogatories listed in the schedule to the defendants’ summons with the exception of the following: nos. 7(a), 7(d), 7(e), 8(a)(i), 8(a)(ii), 8(a)(iii), 8(a)(iv), 8(a)(v), 8(b)(i), 8(b)(ii), 9(b)(ii), 9(c), 16(b), 19(f), 19(g), 20(a)(v), 20(a)(vi), 21, 22(d), 26(d), 26(e), 29(d), 29(e), 31(c), 31(d), 32(a), 32(b), 35(b), 35(e), 35(w), 35(x), 36(b), 36(e), 36(w), 36(x), 37(b), 37(v), 37(w), 38(b), 38(v), 39(b), 39(e), 39(w), 39(x), 40(b), 40(e), 40(w), 40(x), 41(t), 41(u), 42(u), 42(v), 43(b), 43(v), 43(w), 44(b), 44(v), 44(w), 45(b), 45(e), 45(w), 45(x), 46(t), 46(u), 46(w)(iv), 47(c), 47(u), 47(v), 47(w)(iii), 48(d), 48(aa), 49(e), 49(y), 49(z), 50(b), 50(v), 50(w), 50(z), 51(c), 52(b), 55, 57(b), 57(c), 57(d), 58(b), 58(c), 58(d), 59(b), 59(b), 59(c), 59(d), 60(b), 60(c), 60(d), 61(b), 61(c), 61(d), 62, 63, 65(a), 65(b), 65(c), 65(e), 65(f), 65(h), 65(i), 65(j), 65(k), 65(l), 65(m), 65(n), 65(o), 65(q), 65(s), 65(t), 65(u), 65(w), 65(x), 65(y), 65(z), 65(bb), 65(ff), 65(gg), 65(hh), 65(ii), 65(jj), 66(a), 71(a), 71(b), 74(d), 77(b), 77(c), 77(d), 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, and 89. I should add that interrogatory no. 66(a) appeared in the schedule to the defendants’ summons, but was not in any of the categories upon which I heard argument. Having heard no argument on it, I have excluded it from the order requiring further and better answers.
An objection to answering any interrogatory not previously objected to may be taken by the plaintiff in his affidavit in answer to the interrogatories.
The plaintiff will be required to provide the further and better particulars of his further amended statement of claim sought in interrogatories nos. 78 to 89 inclusive, saving all just exceptions.
In Part 1 of the plaintiff’s summons orders were sought that the defendants file and serve affidavits making proper discovery of documents for which they had claimed legal professional privilege. An order was sought that the first defendant file and serve an affidavit making proper discovery of each of the documents for which he had claimed legal professional privilege and which were referred to in Part II of Schedule 1 to his affidavit filed on 22 November 1989 and in Part II of Schedule 1 to his affidavit filed on 29 August 1990 (wrongly referred to in the summons as 28 August 1990). Orders in the same terms were sought against the second defendant - in respect of documents referred to in Part II of Schedule 1 to his affidavit filed on 22 November 1989, and against the third defendant in respect of documents referred to in Part II of Schedule 1 of his affidavit filed on the same day.
In Part II of Schedule 1 to the affidavit of the first defendant filed on the 22 November 1989 the documents were referred to as follows:
“Letters and copy letters, copy statements of witnesses and copy reports passing between myself, my legal adviser, and third parties instructions to Counsel and other material documents relating to this cause including memoranda and other material brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings either anticipated threatened or actual together with pleadings instructions to Counsel and Counsel’s advice thereon including documents prepared for filing and for use or intended for use in the action.”
The documents of each of the second and third defendants are described in the same terms as those referred to in Part II of Schedule 1 to the first defendant’s affidavit of 22 November 1989 except that instead of the words “copy statements of witnesses and copy reports” the words “statements and reports” appear, and in Part II of Schedule 1 to the affidavit of the second defendant instead of the word “advice” where it is used for the second time the word “advices” appears.
In the first defendant’s affidavit filed on 29 August 1990 the following appears:
“1.Copy police brief -
R. v. P.J. Bayliss -
`Procuring Abortions’ -
Section 224 Criminal Code”
The dates are shown as “Various”. In the summons the plaintiff also sought orders in respect of three further affidavits of Mr Brian Stewart, filed on behalf of the fourth defendant, but following my giving leave to the fourth defendant to file and read an affidavit of Mr Antony Stella, solicitor, sworn on 14 March 1997 the plaintiff did not proceed with that part of his application.
Order 35 rule 12(1), so far as it is relevant, provides:
“. . . an affidavit of documents . . . shall enumerate the documents in a convenient order and as shortly as possible, describing each of them or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable it to be identified, and shall specify which if any of the documents therein mentioned the party objects to produce.”
In Braegrove Pty Ltd v. Bendeich [1993] 2 Qd.R. 239 Williams J. considered the application of the rule to documents in respect of which a claim to legal professional privilege is made. Applying principles discussed in particular in Taylor v. Batten (1878) 4 Q.B.D. 85 and Gardner v. Irvin (1878) L.R. 4 Ex.49, his Honour determined that the following attempt at enumeration and description was inadequate:
“1.Professional communications of a confidential nature made by the third defendant firm to its solicitors and to the third defendant firm by its solicitors.
2.Instructions to and advice from counsel in relation to this action.
3.Documents brought into existence in anticipation of or during the progress of this action.
4.Advice given by the third defendant firm to David Clout.”
The affidavit will be sufficient if the documents are sufficiently identified so as to enable the Court to order that the documents be produced if it thinks fit to make an order to that effect: Taylor v. Batten at p.88. That is as far as the affidavit need go; it is erroneous to suggest that an opposing party is entitled to be in such a position as to test the truth of the affidavit by the description of documents: ibid. The opposing party is not entitled to have the dates of documents and such other particulars as may enable him to discover indirectly the contents of the documents: Gardner v. Irvin at p.53 per Cotton L.J.
In Taylor v. Batten Cotton L.J., delivering the judgment of the Court of Appeal, observed:
“The principle of our decision is that the object of the affidavit is to enable the Court to make an order for the production of the documents mentioned in it, if the Court think fit so to do, and that a description of the documents which enables production, if ordered, to be enforced, is sufficient.” (p.89)
It is instructive to note the facts of Taylor v. Batten, since they illustrate clearly how the principle relied on by the Court of Appeal may be applied to documents in respect of which legal professional privilege is claimed without going so far as to permit an opposing party to discover indirectly the contents of the documents, and thus cause the party making discovery to furnish evidence against himself in the action. The plaintiff had called on the defendant to make an affidavit of documents in his possession. In his first affidavit the defendant said: “I have also in my possession or power certain documents, letters, and correspondence, which have passed between my legal advisers and myself in relation to the matters in question in this case, and with a view to my defence to the plaintiff’s claim, and certain instructions to and opinions of counsel in relation to the same matters, all of which I claim to be privileged from production”. The Court found that to be clearly insufficient as the documents were described only as “certain documents, letters” etc., without any further identification. But in a further affidavit the documents referred to in a previous affidavit were, it was said, “numbered 50 to 76 inclusive, and are tied up in a bundle marked with a letter A and initialled by me”. The Court found that the second affidavit was sufficient.
Applying the principle referred to in Taylor v. Batten, which was applied by the Full Court of Tasmania in Lazenby v. Zammit [1987] Tas.R. 54 as well as by Williams J. in Braegrove Pty Ltd v. Bendeich, I conclude that the orders sought should be made against all three defendants. The attempts at enumeration and description in their affidavits filed on 22 November 1989 were all clearly insufficient. In the case of the first defendant it appears from an affidavit filed on 27 April 1990 that the inclusion of Part II of Schedule 1 to in his affidavit filed on 22 November 1989 may have been made in error, and that the only document the first defendant intended to refer to was the brief described in his affidavit filed on 29 August 1990. The affidavit filed on 27 April 1990 is, however, unclear on this point so I shall make an order against the first defendant in respect of his affidavit filed on 22 November 1989. Although no description is given of the contents of the brief, in my view that document is sufficiently described to comply with the requirements of O.35 r.12(1), so I shall make no order against the first defendant in respect of his affidavit filed on 29 August 1990.
In paragraph 2 of the plaintiff's summons the following order is sought against each defendant:
"2.That the Defendants produce for inspection all documents referred to in their Affidavits of Documents filed herein, for which legal professional privilege has been claimed, in so far as those documents refer to, or contain material which relates to:
(a)any advice obtained by or communicated to the Defendants on or before 4 July 1985, as to the matters necessary to establish the commission of the crimes of:
(i)using force with intent to procure the miscarriage of women;
(ii)conspiracy to use force with intent to procure the miscarriage of women;
(b)any fact, matter or circumstance which might tend to establish whether or not the Plaintiff committed either of those crimes;
(c)any belief held by the Defendants to the existence of any fact matter or circumstance which might tend to establish whether or not the Plaintiff had committed either of those crimes;
(d)any belief held by the Defendants as to whether or not the Plaintiff had committed either of those crimes."
In Commissioner, Australian Federal Police v. Propend Finance Pty Ltd (1997) 71 A.L.J.R. 327 McHugh J. summarized the doctrine of legal professional privilege in these words:
"Legal professional privilege is the shorthand description for the doctrine that prevents the disclosure of confidential communications between a lawyer and client, confidential communications between a lawyer and third parties when they are made for the benefit of a client, and confidential material that records the work of a lawyer carried out for the benefit of a client unless the client has consented to the disclosure. To be protected by the privilege, a communication must be made solely for the purpose of contemplated or pending litigation or for obtaining or giving legal advice. The privilege does not extend to communications that are made to facilitate the commission of crime or fraud, to abuse the exercise of public power or to frustrate the order of a court." (p.355)
McHugh J. referred to the following explanation by Stephen, Mason and Murphy JJ. of the rationale for legal professional privilege in Grant v. Downs (1976) 135 C.L.R. 674:
"The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision." (p.685)
McHugh J. pointed out (p.356) that that statement emphasizes "the paramountcy of the principle of legal professional privilege in our legal system" and continued:
"In this country, legal professional privilege is more than a mere rule of evidence; it ‘is a substantive general principle which plays an important role in the effective and efficient administration of justice by the courts’, the best explanation of which is that it is a ‘practical guarantee of fundamental, constitutional or human rights’. In Carter [(1995) 183 C.L.R. 121 at p.161], I pointed out that:
‘By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.’" (p.356)
Legal professional privilege, McHugh J. later observed, is a legal right (p.358).
No argument was addressed to me to the effect that legal professional privilege had not originally attached to the documents the subject of this part of the application. On behalf of the plaintiff it was submitted however that the right to rely on legal professional privilege had been lost. The proposition advanced was that where documents would otherwise be properly the subject of a claim to legal professional privilege that privilege is lost if the documents relate, directly or indirectly, to an issue in the action. On behalf of the defendants it was argued that that formulation of the rule was too broad: that while legal professional privilege may be waived when the content of a confidential communication is put in issue in proceedings by the party entitled to rely on the privilege, the privilege is not lost when that party has not done so even though the communication is relevant, directly or indirectly, to an issue.
On behalf of the plaintiff the following cases were referred to: Thomason v. Campbelltown Municipal Council (1939) 39 S.R. (N.S.W.) 347, Torcasio Developments Pty Ltd v. County Park Developments Pty Ltd (Supreme Court of Victoria, unreported, 9 September 1991), Hongkong Bank v. Murphy [1993] 2 V.R. 419, Data Access Corporation v. Powerflex Services Pty Ltd [1994] A.I.P.C. ¶ 91-112 (p.38,714), and Wardrope v. Dunn [1996] 1 Qd.R. 224.
Reliance was placed on the passage of the judgment of Sir Frederick Jordan, with whom Halse-Rogers and Bavin JJ. concurred, in Thomason v. Champbelltown Municipal Council at pp.358-359. I think it is sufficient to say that in my respectful view the analysis of that case by McLellan J. in United States Surgical Corp v. Hospital Products International Pty Ltd, cited with approval by Young J. in Farrow Mortgage Services Pty Ltd v. Webb (1995) 13 A.C.L.C. 1,329 at p.1,333, is correct. McLellan J.’s statement of the relevant principle was:
“. . it may be that the criterion that the otherwise privileged party must have himself raised the fact and nature of the advice as an issue in the case is too rigidly stated. Nevertheless, before the privilege can be said to have been lost on this principle, one must at least be able to identify some element or feature of the claim made, or the evidence adduced, by the party otherwise entitled to the privilege which would render reliance on the privilege unjust.”
Data Access Corporation v. Powerflex Services Pty Ltd was a case in which legal professional privilege had been lost by the respondents by implied waiver, but Heerey J. also held that an issue raised on the pleadings by the applicant had the effect that documents which would otherwise have been subject to legal professional privilege lost that privilege because they had been “pleaded into relevance”. (p.38, 715). To the extent that that formulation of the rule goes beyond the principle explained by McLellan J. I am in respectful disagreement with it. I should add that Hongkong Bank v. Murphy, referred to by Heerey J., was a case of implied waiver of the protection of legal professional privilege by the party claiming it.
In Wardrope v. Dunn at pp.225-226 Derrington J. referred to observations of Gibbs C.J. in Attorney-General for the Northern Territory v. Maurice (1986) 161 C.L.R. 475 at pp.481-482 as showing that waiver is the process by which the loss of privilege of occurs and is a different matter from the reasoning as to why it should be lost. His Honour concluded that:
“Notwithstanding the high status of professional privilege and the careful protection which the law affords it, when the contents of a privileged communication become the subject of a legitimate and reasonable issue in the litigation, then the privilege is lost.
It does not matter whether the issue is raised by the party claiming privilege or by the party seeking to override it, providing that the issue fairly arises on the litigation: Cf. Data Access Corporation v. Powerflex Services Pty Ltd [1994] A.I.P.C. 91-112. ” (p.226)
It was submitted on behalf of the defendants that the last proposition was too broadly stated. With respect to his Honour, I accept that submission as correct.
In Standard Chartered Bank v. Antico (1993) 36 N.S.W.L.R. 87 Hodgson J. said:
“I think it would be consistent with Attorney-General for the Northern Territory v. Maurice to formulate the principle in Thomason in this way. If a party, by pleadings or evidence, expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, then fairness to the other party may mean that this assertion has to be taken as a waiver of any privilege attaching to the communication.” (pp.94-95)
To the same effect was this formulation of the principle by Byrne J. in Torcasio Developments Pty Ltd v. County Park Developments Pty Ltd & C.C. Brown:
“. . it is only where the client directory or indirectly puts in issue the substance of the privileged communication that the privilege is lost and then only insofar as it is necessary to do justice between the parties.”
Those statements by Hodgson and Byrne JJ. in my view define the rule that applies to this part of the plaintiff’s application, consistently with the paramountcy of the principle of legal professional privilege in our legal system.
Mr Brandis argued inter alia that paragraph 5(b) of the defence and certain answers to interrogatories by the first defendant in which advice he received from the third defendant is referred to had the effect of causing the loss of legal professional privilege. It is not possible in my view however to read into paragraph 5(b) or the answers to interrogatories an assertion, express or implied, about the content of confidential communications. There is nothing in the plain words of paragraph 5(b) that could lead to that construction, and the first defendant was of course required to answer the interrogatories.
The relief sought in paragraph 2 of the plaintiff’s summons will therefore be refused.
I shall invite further submissions on the form of the orders to be made and costs.
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