DCH Legal Group v Skevington
[2001] WADC 116
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DCH LEGAL GROUP -v- SKEVINGTON & ANOR [2001] WADC 116
CORAM: MULLER DCJ
HEARD: 9 MAY 2001
DELIVERED : 23 MAY 2001
FILE NO/S: CIV 1971 of 2000
BETWEEN: DCH LEGAL GROUP
Appellant (Second Defendant)
AND
WENDY SKEVINGTON
Respondent (Plaintiff)IAN MORISON
First Defendant
Catchwords:
Order 26 Rules of Supreme Court - Appeal from order of Deputy Registrar for further and better discovery - Disclosure by party of voluminous documentation in separate bundles bearing general description - Documents in each bundle not necessarily of same nature - Whether classification of documents in bundles and descriptions assigned to bundles adequate for purposes of O 26
Legislation:
Rules of the Supreme Court 1971, O 26
Result:
Appeal dismissed
Representation:
Counsel:
Appellant (Second Defendant) : Mr G J Pynt
Respondent (Plaintiff) : Mr I N Wilson
First Defendant : No Appearance
Solicitors:
Appellant (Second Defendant) : Pynt McKay
Respondent (Plaintiff) : Ian Wilson
First Defendant : Not Applicable
Case(s) referred to in judgment(s):
Cooke v Smith [1891] 1 Ch 509
Insite Pty Ltd & Ors v Midland Cinemas Pty Ltd Supreme Court action CIV 1088 of 1996, delivered 18 April 1997 (No 970172)
Case(s) also cited:
Nil
MULLER DCJ: This is an appeal against the decision of the Deputy Registrar in Chambers on 12 March 2001 ordering the appellant (second defendant) to make and serve on the plaintiff a list of the documents which the second defendant has or has had in its possession, custody or power relating to any matter in issue in the action. The order was made by the Deputy Registrar pursuant to an application made by the plaintiff (respondent) in February 2001 for further and better discovery. The application was not made to obtain further discovery of particular documents but to correct alleged deficiencies in the second defendant's list of documents which, it was claimed, failed to describe each discoverable document but instead referred to disparate documents of a diverse nature by reference to bundles of documents. The application arose out of an action in this Court by the respondent (plaintiff) against the first defendant and appellant (second defendant) for damages arising out of the alleged negligence of the first defendant and the appellant (second defendant) in their capacity as legal practitioners engaged to conduct litigation on behalf of the respondent (plaintiff) in the Supreme Court of Western Australia and the Family Court. It is unnecessary to go into any detail in relation to the Supreme Court action or the Family Court litigation. What has given rise to this appeal is the decision of the Deputy Registrar that the appellant (second defendant) has failed to provide proper discovery in compliance with O 26 of the Rules of the Supreme Court 1971. In considering the appeal the starting point is O 26, r 4(1):
"(1)The list of documents made in compliance with Rule 1 or with an order under Rule 2 must be in Form No 17, and must enumerate the documents in a convenient order and as shortly as possible, but 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 must be filed within 10 days after the service of the requisition, or within the time directed by the order.
(2)If it is claimed that any documents are privileged from production, the claim must be made in the list of documents with a sufficient statement of the grounds of the privilege.
(3)An affidavit verifying a list of documents must be in Form No 18."
The First Schedule, Part I, to the affidavit of Rhonda Frances Griffiths verifying the second defendant's list of discoverable documents sworn on 20 November 2000 contains no less than 36 numbered items. Each item refers to a bundle of documents. The manner of description of each bundle of documents is similar. A general description of the bundle is given in each item together with particulars of the number, date and nature of the first and last document in the bundle. No attempt has been made by the appellant to identify any document in any of the bundles other than the first and last document in that bundle. It was this method of identification and description which the Deputy Registrar found to be deficient.
At the hearing of the appeal reference was made to the wide ranging nature of the discovery process. Counsel for the respondent emphasised that what was discovered appeared to cover the whole range of litigation in both the Supreme and Family Court and that it was impossible to identify documentation relevant to the two central issues upon which the conduct of the appellant (second defendant) was said to have been negligent. In addressing this issue counsel for the appellant (second defendant) emphasised that the respondent's claim included legal fees and disbursements paid by the respondent to the appellant which, in all the circumstances, constituted "wasted expenditure" which the respondent claimed she was entitled to recover from the appellant and the first defendant. In order to decide whether there had been any wasted expenditure counsel for the appellant submitted that all the documentation in existence had to be discovered because some of the material, though perhaps not relevant to the issues of professional negligence, might cast light on what work needed to be done and advise given, and for which a legal fee could properly be charged, before the point was reached where it could be said that, as a consequence of the appellant's alleged negligence, subsequent expenses and disbursements were wasted. The other ground upon which it was said that all documentation had to be disclosed was to illustrate the managerial role which the appellant had to play in the conduct of the litigation and how it was justified in leaving the legal issues, including those in respect of which it was claimed that negligent advice was given, for the consideration of the first defendant.
I accept there may be good reasons for the wide ranging nature of discovery. I also accept that, while it may be possible for the second defendant to identify the particular documents which relate strictly to the areas of negligence alleged by the respondent, there may be other peripheral documents which may also be relevant to this central issue. For these reasons I do not believe a legitimate complaint can be made that the documents discovered are unnecessarily wide ranging.
Turning to the adequacy of the method of discovery the appellant has argued that the descriptions used in the list of documents is adequate for the purposes of O 26. Reference was made to Seaman, Civil Procedure par 26.4.2 at p 6433 where the author said that the provisions in O 26, r 4:
"…are to enable the Court to see whether the rules as to discovery have been complied with and to enable it to make an order for production which is clear and can be enforced but not so as to enable the other party to discover the contents of the described document."
Counsel for the appellant also referred to the decision of Master Sanderson in Insite Pty Ltd & Ors v Midland Cinemas Pty Ltd Supreme Court action CIV 1088 of 1996, delivered 18 April 1997 (No 970172) where it was emphasised that the purpose of discovery is for the parties to inspect each other's documents but not for the purposes of preparing for trial. It was submitted by the appellant that the bundles of documents are of the same nature and are sufficiently described to enable easy identification and inspection. The method adopted was, the appellant argued, a convenient way of discovering a substantial number of documents without the tedious and time consuming process of listing and describing each individual document and was not oppressive because it identifies generically the documents to be found in the bundle.
Counsel for the respondent has submitted that a closer examination of the appellant's list of documents reveals that each item refers to a bundle containing voluminous documents of a diverse and disparate nature which are in a "chronological muddle". Various examples of the alleged deficiencies in the method of discovery used have been given. For the purposes of this appeal I need only refer to one of those examples as a representative example.
"Example
Item 13 of the First Schedule reads
Bundle of documents in white file entitled "Correspondence between Solicitors" beginning with document numbered 13.1 being copy letter from Dentist Job Search to Second Defendant dated 8 February 1999 and ending with document numbered 13.193 being a copy letter from Paterson & Dowding to the Second Defendant dated 4 December 1997.
Analysis
The first document numbered 13.1 is a copy letter from Dental Job Search to the Second Defendant dated the 8th February 1999 followed by 192 intervening unclassified and unidentified documents, the final document being a copy letter from Paterson & Dowding.
The file name allocated to this file is misleading in that the copy letter from Dentist Job Search to Second Defendant does not fall within the category of "Correspondence between Solicitors" and it can be inferred many of the 192 other documents also fail to fall within this category."
What it is said emerges from the analysis undertaken by the respondent and the examples contained in the respondent's submissions is that many of the bundles have misleading or inaccurate descriptions which do not adequately identify the individual documents in the file, dates given are frequently wrong and the documents in any one bundle are not necessarily of the same nature.
In support of his contention that the list of documents is deficient counsel for the respondent referred to the following passage in Butterworth's Discovery and Interrogatories (Bailey &Evans) at par 9320:
"The deponent is required in making discovery to sift through all their documents to determine whether or not any of them are relevant to matters in dispute. To do so in an orderly and thorough manner would, as a rule, require the deponent to form a view as to the classes of documents that might be relevant and as to the periods during which relevant documents in those classifications might have come into existence, and then to sort the documents into such classifications, in order to be satisfied by an inspection of each document as to its relevance. If the documents discovered are not classified in the manner suggested, the party to whom discovery is given must call for and inspect every document, including those of which the party may already have copies, and undertake the classification process. It is submitted that this is oppressive to that party in that it unnecessarily increases the time and expense involved in inspection and has an inherent tendency to make the procedure cumbersome and ineffective."
The examples of the alleged deficiencies referred to in the written submissions made by counsel for the respondent certainly reveal that the appellant has not sorted the documents out in any methodical way. Where reliance is placed on disclosure of a bundle of documents the description of documents in that bundle must be reasonably precise. Discovery in bundles is acceptable provided the description of each bundle accurately and adequately describes its contents and specifies the dates between which the correspondence was produced. See Insite Pty Ltd & Ors v Midland Cinemas Pty Ltd (supra). I have come to the conclusion that this standard has not been met by the appellant. While the individual files purport to bear a generic description that description is not always accurate. Having had the opportunity of examining some of the bundles I have come to the conclusion that the major problem is that the bundles are not necessarily confined to documents of the same nature. As can be seen from the examples given by the respondent in its written submissions some documents falling within particular bundles fall outside the scope of the description given and are not documents of the same nature as those described by the general title. The outcome of this is that the general description given to each bundle may be misleading and does not enable the documents in that bundle to be readily identified as class. In Cooke v Smith[1891] 1 Ch 509 at 522 Kay LJ said:
"I wish incidentally to mention that I dissent entirely from one point taken by Mr Mansfield. He said the trustees will not have any trouble; they can put all the documents into bundles, and mark the bundles. I beg to say that is not the way in which discovery should be made. It has been settled, I believe, without the least dissent for years past, that such a proceeding would not be proper. You must not only make up the documents in bundles, but you must describe what the documents are ‑ for example, a bundle of letters from A to B; and you must identify each document by marking it specially. I quote the words of Lord Justice Cotton, in one of the last cases, Hill v Hart‑Davis:
'They ought to have been set out in bundles, and scheduled and numbered in such a way that the defendant might have asked for those which he wanted to see, specifying them by their numbers.'
All the cases on that subject are collected at p 228 in the last edition of Mr Bray's very useful book on the Law of Discovery. What the trustees are required to do is to look through all the documents that have come into their possession, all the documents that have been created since the year 1876, to make out which of these are relevant to the issue which has to be tried at the trial of this action, and then to mark each one of these documents, and identify it in such a way that the Plaintiff who requires discovery could say, 'I want to see this particular document.'"
I agree no greater obligation than is absolutely necessary ought to be imposed upon a party making discovery. The identification of documents in a case such as this is an onerous task which can be very expensive and time consuming. A balance must be struck between the duty to identify bundles of documents adequately to enable their ready identification by the other party to the litigation and the protection of the party making discovery upon being overborne or oppressed by the magnitude of the task. What emerges in this case is that the method of discovery is unsatisfactory. Not only does it fail on the occasions shown to identify accurately what each bundle of documents contains but, from the examples given, it is also misleading and unhelpful on many occasions. The way it has been done does not, in my view, identify the bundles in such a way that the respondent could identify any particular document she wanted to see and ask the Court, if necessary, for an order compelling the production of that document. What has been done falls short of what the authorities say must be done.
For these reasons I would uphold the decision of the Deputy Registrar and dismiss this appeal.
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