CTC Resources Nl v Australian Stock Exchange Ltd

[2001] WASC 40

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CTC RESOURCES NL -v- AUSTRALIAN STOCK EXCHANGE LTD [2001] WASC 40

CORAM:   MASTER SANDERSON

HEARD:   7 FEBRUARY 2001

DELIVERED          :   20 FEBRUARY 2001

FILE NO/S:   CIV 2379 of 1996

BETWEEN:   CTC RESOURCES NL (ACN 009 061 036)

Plaintiff

AND

AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
Defendant

Catchwords:

Practice and procedure - Application for leave to administer interrogatories as to the contents of privileged documents - Interrogatories in general form

Legislation:

Rules of the Supreme Court WA 1971, O 26 r 8, O 26 r 12, O 27 r 1(1)

Result:

Application for leave refused

Representation:

Counsel:

Plaintiff:     Mr M J McPhee

Defendant:     Dr J T Schoombee

Solicitors:

Plaintiff:     Michell Sillar McPhee

Defendant:     Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Chan v Minister for Immigration & Ethnic Affairs (1983) 49 ALR 593

CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19

CTC Resources NL v Australian Stock Exchange Ltd, unreported; SCt of WA; Library No 980031; 2 February 1998

CTC Resources NL v Australian Stock Exchange Ltd, unreported; SCt of WA; Library No 990167; 1 April 1999

Drew v Drew (1917) SALR 286

Hall v Truman Hanbury & Co [1885] 29 Ch D 307

Jones v Monte Video Gas Co [1879] 5 QBD 556

Winterbottom v Varden & Sons Ltd (1921) SASR 364

Case(s) also cited:

Becker v Smith's Newspaper Ltd (No 1) [1931] SASR 1

Coonan v Richardson [1947] QWN 19

Cumming v Matheson (1970) 92 WN (NSW) 339

Jordan v Sanders (1934) SASR 424

Morris v Edwards [1890] 15 AC 309

Murdoch v Taylor (1923) 40 WN (NSW) 83

Ramsey v Ramsey [1956] 2 All ER 165

Sharpe v Smail (1975) 49 ALJR 130

West v Conway (1923) 23 SLR (NSW) 344

Wilson v Thornbury (1875) LR 10 Ch 239

1. MASTER SANDERSON: This is the plaintiff's application for leave to administer interrogatories and is brought pursuant to O 27 r 1(1) of the Rules of the Supreme Court 1971.  This present application needs to be seen against a background of a number of other interlocutory applications and interlocutory appeals.  On 15 December 1997 I heard an application by the plaintiffs for an order for discovery in relation to documents over which the defendant claimed privilege:  CTC Resources NL v Australian Stock Exchange Ltd, unreported; SCt of WA; Library No 980031; 2 February 1998.  In that decision I summarised the facts of the case and declined to order inspection of the documents.

2. From that decision the plaintiff appealed.  The matter came on before the Full Court on 25 August 1998.  The Full Court allowed the appeal and made an order that the defendant file a further list of documents and the documents "be described sufficiently to enable each to be identified".  The court also ordered that discovery be limited to those documents which were "directly relevant to any of the matters in question in the suit".  Consequent upon that order the defendant filed two affidavits, one by James Hunter Berry, the other by Alan Joseph Shaw, both sworn 6 October 1998.  By virtue of these affidavits privilege was claimed over the whole of some documents mentioned in the schedule and parts of others.  When the plaintiff came to inspect the documents where part only of the document was said to be privileged, they found that effectively nothing was disclosed.  The plaintiff then was left in a position where it knew that there were documents which were directly relevant to matters in issue between the parties, but it could get no indication at all of what was contained in those documents.

3. The plaintiff then sought an order that the privileged documents be produced for inspection.  In the alternative, it sought an order that the court inspect the documents.  This application was brought under O 26 r 12.  Essentially what the plaintiff argued was that the fact that so much of the documents in question were obliterated amounted to evidence that the claim for privilege was unfounded or mistaken.  The plaintiff argued that if the evidence did not go that far it certainly was sufficient to justify the court inspecting the documents.

4. The plaintiff's application was unsuccessful:  See CTC Resources NL v Australian Stock Exchange Ltd, unreported; SCt of WA; Library No 990167; 1 April 1999.  From this decision the plaintiff appealed.  The appeal was dismissed:  See CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19. An application for special leave to appeal to the High Court was refused on 26 October 2000.

5. The effect of all these decision is that the plaintiff is denied access to documents the defendant says are directly relevant to matters in issue between the parties and which the plaintiff says are crucial to its case.  To understand why the documents are so crucial to the plaintiff's case, it is necessary to know something of the facts of the case.  These are set out in the judgment delivered on the first application for discovery.  I will not repeat them here.  By this application the plaintiff seeks to ascertain the substance of what is contained in the privileged documents.

6. At the commencement of the hearing counsel for the plaintiff tendered an amended set of interrogatories in relation to which leave was sought.  To understand the nature of the application I will quote the interrogatories in full:

   "1(a)Refer to the affidavit of James Hunter Berry sworn herein on 6 October 1998, and the affidavit of Alan Joseph Shaw sworn 6 October 1998 and to the lists of documents attached to each of those affidavits; and in respect of each such documents, or part thereof, which is said to be directly relevant to the matters at issue in the action, and in respect of which the contents of the document, or the directly relevant part thereof, has been concealed, in the copies presented to the Plaintiff for inspection state (without identifying any informant investigator or confidential method of investigation) the substance of each and every document or part thereof said to be directly relevant to the issues in the case and so concealed.

   (b)Provide the answer in each case by identifying the document referred to alongside a statement of the substance of the contents of the document in the manner outlined in paragraph 1(a) above."

7. It is apparent from reading the interrogatories what the plaintiff is attempting to achieve and why.  It is also clear that the interrogatories cannot be allowed.  The administering of such interrogatories runs counter to long‑standing practice.  The most often cited authority on this question is the decision of Hall v Truman Hanbury & Co [1885] 29 Ch D 307. The report contains both the judgment of Kay J at first instance and the decision of the Court of Appeal. In his judgment Kay J traces the development of the discovery procedure through the Judicature Act to a rule of practice not dissimilar to our present O 26 r 8.  His Honour concluded that once a satisfactory affidavit of discovery was filed, there was no right in a party to interrogate as to documents.  His Honour considered the case of Jones v Monte Video Gas Co [1879] 5 QBD 556. His Honour concluded that the decision in Jones was not authority for the proposition that a party had a right to interrogate with respect to discovered documents.  The Court of Appeal reached the same conclusion.  Fry LJ, referring to the decision in Jones, did suggest that there may be some rare cases where an interrogatory as to documents might be permitted.  His Lordship did not attempt to identify instances when such an interrogatory might be allowed.

8. It is not the case that interrogatories which relate to discovered documents are never permitted.  For instance, it is permissible to administer an interrogatory seeking an admission that a letter was sent by a party answering the interrogatory:  See Drew v Drew (1917) SALR 286. But general interrogatories as to the contents of particular documents are not permitted. The rationale for this rule is not difficult to understand. An interrogatory which seeks evidence about the contents of a document offends the best evidence rule. What is relevant is what the document says, not what the person answering the interrogatory says that it says: See Winterbottom v Varden & Sons Ltd (1921) SASR 364 at 366; Chan v Minister for Immigration & Ethnic Affairs (1983) 49 ALR 593.

9. Counsel for the plaintiff submitted that this was a case which was akin to an instance where a document had been lost or destroyed.  Counsel pointed out that as a consequence of the claim for privilege the document was not available to the plaintiff.  Therefore secondary evidence of its contents could be led.  It is not to be doubted that where a document is lost or destroyed, interrogatories may enquire as to the contents of a document:  See Winterbottom v Varden & Sons Ltd (supra).  But this is not that situation at all.  The documents are in existence.  They are privileged.  The fact that they are privileged provides no basis at all for the tendering of secondary evidence as to the contents of the documents.  That being the case, there is no basis upon which the defendant could be compelled to answer these interrogatories.

10. The plaintiff's application for leave should be dismissed.  The plaintiff should pay the defendant's costs of the application, including the reserved costs.