District Council of Mallala v Livestock Markets Ltd

[2006] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

DISTRICT COUNCIL OF MALLALA v LIVESTOCK MARKETS LIMITED

Judgment of The Honourable Justice White

17 March 2006

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - LEGAL PROFESSION

Appeal against decision of magistrate dismissing application by appellant for production by respondent of report for which respondent claimed legal professional privilege - whether legal professional privilege attached to report and if so whether privilege had been waived - whether report was an expert report within the meaning of r 69 of the Magistrates Court (Civil) Rules 1992 - whether magistrate erred in refusing to inspect report prior to dismissing application for production of report - where letter from respondent to appellant disclosed some content of report for the purposes of settlement negotiations - whether letter could be admitted into evidence and relied upon by appellant in application for production of report.

Held: apppellant not entitled to rely upon letter from respondent as letter written in connection with attempt to negotiate a settlement - respondent had not disclosed contents of letter other than to appellant - report inspected on appeal - claim for legal professional privilege upheld - report not an expert report within the meaning of r 69 - appeal dismissed.

Magistrates Court (Civil) Rules 1992 r 69; Magistrates Court Act 1991 (SA), s 49; Evidence Act 1929 (SA), s 67C, referred to.
State Bank of South Australia v Smoothdale No 2 Ltd & Anor (1995) 184 LSJS 254; Davies & Davies v Nyland & O'Neil (1974) 10 SASR 76; Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; Grant v Downs (1976) 135 CLR 674; Electrona Carbide Industries Pty Ltd v Tasmanian Government Insurance Office (1982) TASR 21; Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] 1 KB 134; R v Bonython (1984) 38 SASR 45, applied.
National Employers' Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648, distinguished.
Taylor v Guttilla (1992) 59 SASR 361; Citicorp Australia Ltd v Cirillo [1999] SASC 417; Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410; Clark v Ryan (1961) 103 CLR 486; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, considered.

DISTRICT COUNCIL OF MALLALA v LIVESTOCK MARKETS LIMITED
[2006] SASC 80

Magistrates Appeal

1. WHITE J: The appellant and the respondent are parties to civil proceedings in the Magistrates Court.  A magistrate has dismissed an application by the appellant for an order that the respondent produce to it for inspection a report of Quark & Associates Pty Ltd, being a report for which the respondent has claimed legal professional privilege (“the Quark Report”).  The appellant appeals against that decision.

2. The appellant contends that an order for production of the Quark Report should have been made for one or more of several reasons. First, because legal professional privilege never attached to the Report, it not being a communication between solicitor and client. Secondly, even if the Report was prepared for the dominant purpose of submission to the respondent’s legal advisors in connection with the litigation the respondent had, by its conduct, waived that privilege. In the alternative, even if the privilege had not been waived, the Quark Report was “a report from an expert” within the meaning of r 69(1) of the Magistrates Court (Civil) Rules 1992 and disclosure of it was required by that rule.  Finally, the appellant contended that the magistrate was in error in refusing to inspect the Report before declining to order its production.

3. Rule 69 of the Magistrates Court (Civil) Rules 1992 provides:

   (1)A party who has obtained a report from an expert (including a medical expert) in relation to an action must obtain a written report from that expert and serve on the other parties, a copy of that report together with the name, address and qualifications of the expert, within 21 days of receipt of such report and in any event not less than 21 days before the date fixed for the trial of the action.

   (2) The party must file in book form (which need not be served), a copy of all such reports not less than 7 days before a date fixed for a conciliation conference.

   (3) Where a report is not served on the other parties, the Court may refuse to hear the expert.

   (4)A Form 22 and a report from an expert may be received by the Court as an exhibit whether or not the author is called as a witness.

4. The validity of r 69 was not impugned on the hearing of this appeal. The absence of any such challenge is quite understandable: s 49(1)(ca) of the Magistrates Court Act 1991 expressly authorises the making of rules imposing mutual obligations on parties to proceedings in the Court to disclose to each other the contents of expert reports before the proceedings are brought to trial.  It is reasonable to suppose that this provision was inserted into the Magistrates Court Act in response to the decision of this Court in Taylor v Guttilla.[1]

   [1] (1992) 59 SASR 361.

   Background Circumstances

5. The appellant sued the respondent in the District Court seeking to recover $34,979.20 which was said to be “the balance outstanding for public works” carried out by it at Carslake Road, Dublin at the respondent’s request between November 2001 and April 2002.  The respondent counterclaimed.  By an agreement made on 14 May 1998 it had authorised the appellant to extract rubble from its property at Carslake Road.  The appellant had agreed to pay a royalty in respect of the rubble extracted.  The respondent alleged that it had not been paid the full amount of royalty due to it.  By its counterclaim, it sought payment of the sum of $81,530.74.

6. The respondent claims evidently that there were some irregularities in the recording of the amount of rubble removed from its property and some other inappropriate practices which had led to it not receiving the full payment to which it was entitled in respect of the extracted rubble.

   The Quark Report

7. On 7 July 2005 the solicitors for the respondent filed in the Magistrates Court the respondent’s list of documents.  In Part 2 of that list, privilege from production on the ground of legal professional privilege was claimed in respect of “Report of Quark & Associates Pty Ltd dated 19 April 2004”.

8. In an affidavit filed in the Magistrates Court as part of the defence to the appellant’s claim to production of the Quark Report, Mr Kurtze, the respondent’s solicitor said the following:

   The Quark Report is not an expert report discoverable under the Magistrates Court Rules.  … 

   The writer of the Quark Report is an investigator.  He is a former police officer experienced in corruption and fraud investigations.  He is not an expert in any field to my knowledge (perhaps he is an expert in investigative techniques relating to corruption and fraud, but the report is not written about any such field).

   The Quark Report does not offer any expert opinions. 

   The Report was prepared solely for the purpose of this litigation.  The report collects material which might be of evidential use to the defendant and its lawyers in the present proceedings.

   The Respondent’s Letter Dated 6 May 2004

9. The appellant was provided with some information concerning the content of the Quark Report by a letter written by the respondent directly to the appellant dated 6 May 2004. That letter was an exhibit to an affidavit sworn by the appellant’s solicitors and relied upon by the appellant in the application before the magistrate. The respondent objected to the appellants making use of this letter in this way. It maintained that objection on the hearing of the appeal. The respondent’s submission was that the letter of 6 May 2004 was made in connection with an attempt to negotiate the settlement of the disputes between the parties, and hence was rendered inadmissible by s 67C of the Evidence Act 1929.  An initial question then is whether it was proper for use to be made of the letter of 6 May 2004.

10. It is necessary to say a little about the letter.  It comprises three pages.  In the first two pages, extensive reference is made to the Quark Report.  The letter refers to the appointment of investigation consultants to investigate the veracity of certain matters; it describes the person who carried out the investigation and summarises the instructions given to him.  The letter then records that an interim report has been received from the investigator and goes on to set out, in an abbreviated form, a number of “allegations” contained in the investigator’s report.  The letter then refers to an expert engineering report also commissioned by the respondent.  The letter then continues with a statement that the respondent has submitted the investigator’s report to its solicitors and that has been advised by the solicitors that the evidence obtained so far by the investigator would “be overwhelming should the civil actions proceed”.  In addition, the letter reported advice from the solicitors that the activities alleged in the report warranted “police investigation and possibly criminal sanctions”.

11. The letter then went on to set out a proposal for the settlement of the litigation.  The penultimate paragraph of the letter provided as follows:

    As significant rate payers to DC of Mallala and the catalyst for substantial economic and social activity within the DC of Mallala [the respondent] believes all ratepayers and residents would be extremely concerned with the matters raised by our investigations and would want to see appropriate action taken particularly as there are reports of these activities still continuing to occur.

12. The letter of 6 May 2004 was addressed to the Chief Executive Officer of the appellant.  It showed on its face, however, that copies of the letter were provided to 11 of the elected members of the appellant corporation.

13. Before addressing the respondent’s objection to the appellant’s use of the letter of 6 May 2004 on the application for further discovery, it is appropriate to note some further events.  The appellant’s solicitors responded to the letter of 6 May 2004.  They recorded their client’s concern about the allegations of impropriety and irregularities in relation to the extraction of rubble from the respondent’s land.  They urged the respondent to take any evidence of improper conduct which they had to the proper authorities and in particular to the South Australian Police.  The respondent declined to adopt that course but did, by a letter from its solicitors dated 8 June 2004 say “we would be prepared to consider allowing you to read the Report in our office if there were express undertakings as to its confidentiality and privilege and on the basis that no copies were taken”.  Thereafter there were some negotiations about the terms on which a copy of the Quark Report may be provided.  Ultimately a copy of the Quark Report was provided to the appellant’s solicitors for a limited purpose and for a limited time.

14. On the appeal, the appellant did not seek to rely at all on the disclosure to it of the Quark Report itself.  In particular, it did not submit that the disclosure of the Quark Report for a limited purpose and for a limited time constituted a waiver of any legal professional privilege attaching to the Quark Report at that time.  Rather, it relied upon the respondent’s conduct in sending the letter of 6 May 2004.  In these circumstances, I consider it appropriate for the appeal to be determined on the basis adopted by the parties, without considering whether legal professional privilege continued to attach to the Quark Report following its disclosure to the appellant. 

15. The respondent did submit that as part of the agreement by which a copy of the Report had been provided to the appellant’s solicitors, the appellant had undertaken not to contest the claim for privilege.  I am unable to see any support for that submission in the evidence before the magistrate.

16. I propose to consider in the first instance whether the appellant was entitled to make any use at all of the letter of 6 May 2004 on its application for production of the Quark Report.

    Section 67C of the Evidence Act

17. Section 67C of the Evidence Act 1929 provides:

    (1)Subject to this section, evidence of a communication made in connection with an attempt to negotiate the settlement of a civil dispute, or of a document prepared in connection with such an attempt, is not admissible in any civil or criminal proceedings.

    (2)     Such evidence is, however, admissible if—

    (a)     the parties to the dispute consent; or

    (b)     the substance of the evidence has been disclosed with the express or implied consent of the parties to the dispute; or

    (c)     the substance of the evidence has been partly disclosed with the express or implied consent of the parties to the dispute, and full disclosure of the evidence is reasonably necessary to—

    (i)enable a proper understanding of the other evidence that has already been adduced; or

    (ii)    avoid unfairness to any of the parties to the dispute; or

    (d)     the communication or document included a statement to the effect that it was not to be treated as confidential; or

    (e)     the proceeding in which the evidence is to be adduced is a proceeding to enforce an agreement for the settlement of the dispute or a proceeding in which the making of such an agreement is in issue; or

    (f)    the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or

    (g)     the making of the communication, or the preparation of the document, affects the rights of a party to the dispute; or

    (h)     the communication was made, or the document was prepared, in furtherance of—

    (i)     the commission of a fraud or an offence; or

    (ii)    the doing of an act that renders a person liable to a civil penalty; or

    (iii)     the abuse of a statutory power.

    (3)Subsection (1) does not apply to parts of a document that do not concern attempts to negotiate a settlement of a dispute, if it would not be misleading to adduce evidence of only those parts of the document.

18. The respondent contended that the letter of 6 May 2004 was “a communication made in connection with an attempt to negotiate the settlement” of the disputes between the parties. Hence, it submitted that s 67C(1) applied and that the appellant was not entitled to introduce the letter into evidence even on an interlocutory application.

19. As to this, the appellant made two responses.  First it submitted that the letter of 6 May 2004 comprised two parts:  the first being in substance the disclosure of the content of the Quark Report, and the second containing the respondent’s settlement proposal.  The appellant submitted that it was entitled to introduce evidence of the first part of the letter.

20. Mr Turon, who appeared for the appellant, submitted that just as legal professional privilege could attach to part of a communication, and not to another part, so also could the settlement negotiation privilege for which s 67C provides apply to part only of a communication. It is not necessary to consider whether Mr Turon’s submission with respect to legal professional privilege is correct. [2]  I am prepared to accept, (without deciding) for the purpose of resolution of this appeal, that the one document may contain a communication in connection with settlement negotiations and a communication with respect to some other subject matter. 

    [2]    Some of the authorities were reviewed in Citicorp Australia Ltd v Cirillo [1999] SASC 417.

21. The question of whether a communication was made in connection with an attempt to negotiate the settlement of a civil dispute is very much a question of fact.  Here the parties were in dispute.  There were current proceedings.  The settlement proposal related to these proceedings.  Although there is a sense in which the letter can be said to comprise two parts, that is a consequence of its manner of expression, rather than a matter of formal structure.  In my opinion, the letter follows a form not uncommonly adopted in correspondence containing a settlement proposal.  The respondent commenced the letter with statements seeking to demonstrate the strength of its own case.  It did this by reference to the Quark Report and an expert engineering report.  Having done that, the letter then proceeded to suggest a means by which the litigation could be resolved.  The relationship between the two “parts” of the letter is evidenced by the sentence which followed immediately after the “first part” and immediately before the respondent’s settlement proposal:

    Therefore, understanding the high cost of proceeding with these actions, Livestock Markets Ltd makes the following settlement offer without prejudice to any proceedings should the offer not be accepted.  [Emphasis added]

22. The appellant drew attention to the fact that the correspondence was written by the respondent itself directly to the appellant, and copied to the members of the appellant council.  Those facts, in addition to the suggestion of irregularities in the appellant’s records, indicated in the appellant’s submission that the first “part” of the letter was a report by a public minded ratepayer to its local council of matters of public concern.  There is some plausibility in the submission, but even if it be correct, it would not follow that the letter could not properly be characterised as a communication made in connection with an attempt to negotiate the settlement of the parties’ dispute. There is no reason to read s 67C(1) narrowly so as to confine it to communications concerned solely with settlement negotiations. A communication made in connection with settlement attempts may also serve some other purpose.

23. In my opinion, the letter of 6 May 2004 is a reasonably typical example of negotiation correspondence.  I am satisfied that the whole of the letter comprises a communication made in connection with the an attempt to negotiate the settlement of the dispute between the parties.

24. Next, the appellant referred to s 67C(2)(c). It was submitted:

    sub-s (2)(c) should apply to the letter of 6 May 2004 by reason of the voluntary part-disclosure contained in it.  Accordingly, full disclosure should be made to enable the [appellant] to gain a proper understanding of the other evidence already adduced and to avoid unfairness to the [respondent]

    In my opinion, this submission involves a misconception about the operation of s 67C(2)(c).

25. The underlying purpose of s 67C is to preclude from admission into evidence matters said by parties to civil disputes in the course of attempts to settle those disputes or documents prepared for use in such attempts. In this way, the parties are encouraged to be frank in their discussions by the knowledge that nothing which they say may, in the ordinary course, be admitted into evidence. Thus a party may be willing to disclose information, or to make a concession, which would not otherwise be the case if they knew that the matter disclosed, or the concession, could be introduced later into evidence.[3] Section 67C(1) gives effect to that underlying rationale. Subsections (2) and (3) provide for exceptions. The first four exceptions in sub-s (2) are concerned with forms of consent. The first is the circumstance of an actual consent to the admission of the evidence (s 67C(2)(a)). Sub-paras (b) and (c) of s 67C(2) are concerned with the circumstance where, although there is not consent to the admission into evidence of the communication (or evidence of it), there has been a form of disclosure with the express and implied consent of the disputants. Section 67C(2)(d) concerns the situation in which it was made plain in the communication itself that it was not to be treated as confidential. The subject matter of each of those exceptions is the evidence of the communication made in connection with an attempt to settle the dispute to which sub-s (1) refers. In this case that is the respondent’s letter of 6 May 2004. That letter may be admitted into evidence if the parties consented to its admission, or if the substance of the letter itself had been disclosed in circumstances described in sub-paras (b) and (c), or if it included a statement to the effect that it was not to be treated as confidential. None of those circumstances exist. Apart from the communication comprised by the sending of the letter itself on 6 May 2004, there is no evidence that the respondent has made any other use or disclosure of the letter. It has not been sent by the respondent to any non-party. Its contents have not been disclosed to anyone apart from the appellant and the human agents who comprise the decision-making body of the appellant. The respondent has not sought to make use of the letter in proceedings before the magistrate. It cannot be said that there has been any disclosure (whether of the substance or otherwise) of the letter of 6 May 2004 with the express or implied consent of the respondent.

    [3]    State Bank of South Australia v Smoothdale No 2 Ltd & Anor (1995) 184 LSJS 254 at 261-2 per Doyle CJ; Davies & Davies v Nyland & O’Neil (1974) 10 SASR 76 at 88-90 per Wells J.

1. In those circumstances, there is no scope for the exception in s 67C(2)(c) to operate.

2. It follows that the appellant was not entitled to rely on the letter of 6 May 2004 on the application for production of the Quark Report and, further, that the magistrate should not have made any use of the letter. The determination of whether legal professional privilege attached to the Quark Report and whether it is an expert report for the purposes of r 69 of the Magistrates Court (Civil) Rules should have been made without reference to the letter of 6 May 2004.

   The Claim for Legal Professional Privilege

3. Although the appellant had, at the hearing before the magistrate, challenged the respondent’s claim for legal professional privilege, the magistrate did not deal with the claim.  The appellant submitted that the magistrate should have found that any privilege attaching to the Quark Report had been waived.  It also complained of the magistrate’s failure to inspect the Quark Report himself before ruling on the matter.

4. The Quark Report is protected from coerced disclosure if it was brought into existence for the dominant purpose of use by the respondent’s solicitors in the defence of the appellant’s claim, or in the prosecution of the respondent’s counter-claim, or both.[4]

   [4]    Esso Australia Resources Ltd v Commission of Taxation (1999) 201 CLR 49.

5. It is for the party claiming privilege to justify that claim.[5]  The court has a discretion to inspect the document to determine whether a claim for privilege is properly made.[6]  A party seeking production of a document for which privilege is claimed cannot demand, as a right, that the court inspect the document.[7]  Ordinarily a court will accept a claim for privilege without inspecting the document once satisfied that the claim for privilege is formally correct, that the document in respect of which the claim is made is sufficiently identified and is such that, prima facie, the claim to privilege would appear to be properly made.[8]  Much depends on the completeness of the description of the document and the adequacy of the evidence proffered by the party claiming the privilege in support of that claim.[9]

   [5]    Grant v Downs (1976) 135 CLR 674 at 689 per Stephen, Mason and Murphy JJ; Electrona Carbide Industries Pty Ltd v Tasmanian Government Insurance Office (1982) TASR 21

   [6]    Grant v Downs (1976) 135 CLR 674 at 688-9 per Stephen, Mason and Murphy JJ.

   [7]    Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] 1 KB 134 at 146.

   [8] Ibid at 146.

   [9]    Cf Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410.

6. I have already referred to the affidavit of the respondent’s solicitor, Mr Kurtze, concerning the Quark Report.  Mr Kurtze deposed that the Quark Report was prepared solely for the purposes of the present litigation.  He said that the Report “collects material that might potentially be of evidential use to the respondent and its lawyers in the present proceedings”.  Mr Kurtze has not deposed to a number of matters which are ordinarily appropriate to be disclosed in support of a claim for legal professional privilege, eg, by whom the Report was commissioned, when it was commissioned, if he was the person commissioning the Report his purpose in doing so, to whom the Report is addressed, and to whom the Report was provided after its preparation, and, if appropriate, at any subsequent time.  In those circumstances, although I considered that there was nothing in the limited description of the Quark Report in the list of documents or in Mr Kurtze’s affidavit which indicated that the claim for privilege may not have been warranted, I decided (against the respondent’s opposition) that I should inspect the Report.  The appellant agreed that I could inspect the Report without a copy being provided to it. 

7. Obviously it would be inappropriate for me to disclose the content of the Report in these reasons.  It can however appropriately be said that Quark and Associates Pty Ltd describes itself as “Corporate, Legal, Insurance & Government Assessment, Investigation & Surveillance Consultants”.  The Report is addressed to the respondent and purports to be a report of “investigation results to date”.  It acknowledges instructions given on 9 March 2004.  At that time the present litigation was on foot and the respondent had lodged its counterclaim.  Although there is no express statement of the purpose, or purposes, for which the Report was prepared it can be inferred that its subject matter is directly relevant to, or related to, the present litigation.  No other purpose for its preparation is readily apparent.  The content and circumstances of preparation of this Report are quite different from those considered by the High Court in National Employers’ Mutual General Insurance Association Ltd v Waind.[10]  I am satisfied that the claim for legal professional privilege is properly made.  In coming to that conclusion, I have attached little weight to the assertion of Mr Kurtze that the Report was prepared solely for the purpose of the litigation.  There is no evidence that Mr Kurtze had any involvement in the commissioning of the Report or had direct knowledge of the purpose for which it was brought into existence.  Finally, in relation to the appellant’s submission, it is not to the point that the Report is not a communication between solicitor and client, or between solicitor and investigator.

   [10] (1979) 141 CLR 648.

8. The appellant did not point to any material, other than the respondent’s letter of 6 May 2004, which indicated that there had been any waiver of that privilege.  My earlier ruling indicates that the letter of 6 May 2004 cannot be relied upon for this purpose.  Accordingly, I am satisfied that legal professional privilege continues to attach to the Quark Report.

   Expert Report

9. Rule 69 of the Magistrates Court (Civil) Rules operates to deprive a party of the protection of legal professional privilege in respect of documents falling within its terms.[11]  Although a report from the expert may otherwise be the subject of legal professional privilege, the party in possession of the report is required to disclose it.

   [11]   Taylor v Guttilla (1992) 59 SASR 361 at 364 per King CJ.

10. The Magistrates Court (Civil) Rules do not include any definition of the word “expert” or of the expression “ report from an expert”. It is reasonable to infer that the expression “report from an expert” is used with the same meaning as the expression “expert reports” contained in s 49(1)(ca) of the Magistrates Court Act 1991.  That is the provision pursuant to which the rule has been promulgated.  It is also reasonable to infer that each expression is used to refer to a document prepared by a person who could, in accordance with the rules of evidence, give expert opinion evidence at the trial of the action.  A witness with expertise may give evidence on matters which are not, or not wholly, within the knowledge and experience of ordinary persons.[12]  The circumstances in which expert opinion evidence may be received in a trial were discussed in R v Bonython:

    Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions.  The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible.  This first question may be divided into two parts: 

    (a)whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and

    (b)whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.

    The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.[13]

    [12]   Clark v Ryan (1961) 103 CLR 486.

    [13] (1984) 38 SASR 45 at 46-7 per King CJ. See also Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85].

11. The Quark Report should therefore be regarded as a report of an expert for the purposes of r 69 if it contains the opinion of a person with specialised knowledge of a particular field and the opinion is substantially based on that person’s expert knowledge. I have already referred to the affidavit of Mr Kurtze. He describes the author of the Quark Report as a former police officer with experience in corruption and fraud investigations who has carried out the role of an investigator. Mr Kurtze has deposed to the Quark Report not containing any expert opinion. Having now inspected the Quark Report, I am satisfied that the Quark Report does not contain an expression of expert opinion in the sense which I have outlined above. The author could not give any evidence at all of the content of the greater amount of his report as it is hearsay. In any event, the author does not purport to express any opinion based on his possession of some expertise. That being so, the magistrate was correct, in my opinion, in refusing to order production of the Report in accordance with r 69.

    Conclusion

12. For these reasons, my conclusion is that the appeal should be dismissed.