Gate v National Australia Bank Ltd

[1992] QCA 46

IN THE COURT OF APPEAL	[1992] QCA 046
SUPREME COURT OF QUEENSLAND	Appeal No. 82 of 1992
BETWEEN: PETER ALLAN GATE

(Plaintiff) Respondent

AND:

NATIONAL AUSTRALIA BANK LIMITED

(Defendant)

AND:

AUSTRALIA AND NEW ZEALAND BANKING GROUP

Appellant

__________________________________________________

THE PRESIDENT
DAVIES JA

SHEPHERDSON J

__________________________________________________

Reasons of the Court delivered the 1st day of

April 1992

__________________________________________________

"APPEAL ALLOWED. ORDER APPEALED FROM SET ASIDE.
RESPONDENT TO PAY APPELLANT'S COSTS OF APPEAL AND
IN THE COURT BELOW, TO BE TAXED."

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 82 of 1992
BETWEEN: PETER ALLAN GATE

(Plaintiff) Respondent

AND:

NATIONAL AUSTRALIA BANK LIMITED

(Defendant)

AND:

AUSTRALIA AND NEW ZEALAND BANKING GROUP

Appellant

Before the Court of Appeal

Mr Justice Fitzgerald
Mr Justice Davies

Mr Justice Shepherdson

JUDGMENT OF THE COURT

Delivered the 1st day of April 1992

MINUTES OF ORDER: Appeal allowed. Order appealed from set aside. Respondent to pay appellant's costs of appeal and in the Court below, to be taxed.

CATCHWORDS:	DISCOVERY AND INTERROGATORIES - THIRD PARTY DISCOVERY - appeal against order for production by party not a party to the action - whether documents sought per r. 196A must be specified with same particularity as in a subpoena duces tecum - whether order satisfies such a requirement
DISTRICT OURT RULES r. 196A
Counsel:	S.L. Doyle for the Appellant Ms. A.I. Philippides for the Respondent
Solicitors:	Blake Dawson Waldron for the Appellant Murrell Stephenson for the Respondent
Hearing date(s):	10 March 1992

The respondent to this appeal has sued his former employer, the National Australia Bank Limited, in the District Court for $200,000 damages for negligence and/or breach of duty and/or breach of contract, together with interest thereon pursuant to the Common Law Practice Act 1867-1981, in relation to a serious post-traumatic stress disorder alleged to have arisen out of an armed hold-up on or about 29 January 1985 at the Park Ridge branch of the defendant bank where the respondent was employed. The particulars of that negligence or breach of duty or of contract set out in the plaint are in the following terms:

"(a) Failing to take adequate precautions to ensure the Plaintiff's safety;

(b)  Exposing the Plaintiff to a risk of injury which it knew or ought to have known;

(c)  Failing to provide or maintain suitable security measures whether by physical means or personal to deter or adequately deter or prevent the likelihood of an armed robbery;

(d)  Failing to supervise or properly supervise the Bank;

(e)  Allowing or failing to prevent the entry of an armed robber to the said Bank;

(f)  Failing to provide any or adequate counselling to mitigate or reduce the effects of post traumatic stress disorder which was a likely or possible consequence of being exposed to an armed robbery;

(g)  Failing to direct the Plaintiff to attend counselling or psychological or psychiatric care to mitigate or reduce the effects of post traumatic stress disorder which was a likely or possible consequence of being exposed to an armed robbery;

(h)  Failing to advise the Plaintiff to attend counselling or psychological or psychiatric care to mitigate or reduce the effects of post traumatic stress disorder which was a likely or possible consequence of being exposed to an armed robbery;

(i)  Failing to warn the Plaintiff of the possibility of the onset of post traumatic stress disorder as a likely or possible effect or (sic) being exposed to an armed robbery."

The appellant is another bank which is not a party to the action. On 30 August 1991, an order was made against the appellant, or rather the appellant's "Chief Executive's Representative Queensland", which required the production for inspection by the respondent's solicitor and/or a security expert agreed between the parties of "all papers and documents" which the appellant's representative has in his possession or power "relative to procedures in respect of armed hold-ups and steps taken to prevent hold-ups and counselling of employees after hold-ups and in particular:

(a) Bank Security Manual;
(b) Bank guidelines concerning security;
(c) Written directives concerning security;

(d)  Correspondence from head office concerning security measures to prevent armed hold-ups;

(e)  Correspondence from head office concerning policy in relation to counselling of employees following hold-ups, insofar as they relate to:-

1.	The type of activation devices attached to alarms and how such alarms are triggered;
2.	Instructions given to the bank's staff as to the manner in which such staff are to conduct themselves before, during and after armed hold-ups;
3.	Procedures that staff are to adopt when opening, and/or closing a branch;
4.	Directions given to staff members to prevent being locked in vaults by bandits;
5.	General precautions taken during trading hours;
6.	The items considered to enable a risk assessment concerning various branches to be made;
7.	The physical and electronic security devices utilised by the bank;
8.	The manner in which investigations are carried out, including identification of means to preserve evidence to assist the police to apprehend bandits;
9.	Emergency proceedings including:-

(i) Extortion;
(ii) Bomb threats;
(iii)Hold-up proceedings;
(iv) Burglary, break ins;

(v)  Explosives and insofar as the documents relates to the period between January 1984 and December 1986, subject to an undertaking by the Solicitor for the Plaintiff and the security expert not to reveal the contents of the inspected documents sent to their clients Counsel and the results of the said inspection shall be for the purpose of preparing for trial and to no other purpose."

Leave to appeal against the order was granted by Master
White on 26 September 1991.

The order under appeal was made under r. 196A of the District Court Rules and, in this Court, the appellant contends that the preconditions to the exercise of power conferred by that rule were not established by the material upon which the District Court Judge acted and, further, that Her Honour erred in the exercise of her discretion.

Although the application which led to the order against the appellant was contested, it appears that, if the District Court Judge gave reasons for her decision, those reasons were not recorded. Such a course is not satisfactory. It is a considerable disadvantage to this Court not to know the basis upon which the District Court Judge acted, and the duty to give reasons has been emphasised on a number of occasions in recent years. See, for example, the decision of the New South Wales Court of Appeal in Apps v. Pilet (1987) 11 N.S.W.L.R. 350 in relation to contested interlocutory applications.

The application on behalf of the respondent, insofar as it related to the appellant, was based on no more than an affidavit by the solicitor for the respondent stating that he had been informed by an employee of the appellant and verily believed that the appellant's Chief Executive's Representative, Queensland, "has in his possession or power, the following class or category of documents relative to procedures in respect of armed hold-ups and steps taken to prevent hold-ups:-

(a) Bank Security Manual;
(b) Bank guidelines concerning security;
(c) Written directives concerning security;

(d)  Correspondence from head office concerning security measures to prevent armed hold-ups";

that he had been informed by another employee of the appellant and verily believed that the appellant's Chief Executive's Representative, Queensland may also have in his possession or power "Correspondence from head office concerning policy in relation to counselling of employees following hold-up", and that "the documents ... enumerated above ... are relevant to matters in issue in this action ... and ... ones that ... Bank would be required to produce under Subpoena if this matter proceeded to Trial", that they had not been discovered by the defendant in the action and that they are not "otherwise obtainable through any other source...".

The Group Security Manager, Queensland, of the appellant filed an affidavit in opposition to the application stating that the documents in the nominated categories collectively contain, inter alia, information as to the following:-

"(a) What security equipment is contained in the Bank's branches;

(b) How such security equipment operates;

(c)  Measures that the Bank has implemented to prevent armed hold-ups;

(d)  The types of locks used throughout the Bank's branches;

(e)  The workings of time delay locks, and specifically the periods that such locks remain closed;

(f)  The type of activation devices attached to alarms and how such alarms are triggered;

(g)  Instructions given to the Bank's staff as to the manner in which such staff are to conduct themselves before, during and after armed hold-ups;

(h)  Levels of cash that are permitted in the teller area of a branch;

(i)  Procedures that staff are to adopt when opening and/or closing a branch;

(j)  Directions given to staff members to prevent being locked in vaults by bandits;

(k)  General precautions taken during trading hours;

(l)  The method of operation of surveillance equipment;

(m)  Procedures adopted by the security unit and the branches to confirm whether a false alarm has occurred within a branch;

(n)  The items considered to enable a risk assessment concerning various branches to be made;

(o)  The physical and electronic security devices utilised by the Bank;

(p)  Patrols and guard services including the regularity of patrols and whether such guards are armed;

(q)  The manner in which investigations are carried out, including identification of means to preserve evidence to assist the Police apprehend bandits;

(r)  The measures that the Bank has implemented to protect its executives;

(s) Emergency proceedings including:-
(i) Extortion;
(ii) Bomb Threats;
(iii)Hold-up proceedings;
(iv) Burglary - break ins;
(v) Explosives;

(t) Identity cards utilised by Bank Officers;

(u)  Standards by which bullet resistant materials are manufactured."

The Group Security Manager's affidavit went on to assert "very grave concerns" that the disclosure of the information requested would seriously prejudice the Bank's security and affect the Bank's attempts to prevent armed hold-ups and larceny generally, and a belief that "the information could greatly assist a bandit to determine:-

"(a) Which branch of the Bank to rob;
(b) When to make the raid;

(c)  How a raid could most effectively be carried out;

(d)  What steps could be taken to minimise the chances of identification and/or capture."

The belief was also expressed that "the disclosure of the requested information could endanger the life and safety of:-

"(a) The Bank's staff;
(b) The Bank's customers; and
(c) The public generally."

Further, it was pointed out that the request contained no time limitations with respect to the documentation sought and stated that it "would be an extremely onerous and time consuming task to search the offices of the security units of the various States as well as headquarters and identify the documents referred to".

Presumably, the concluding words of Her Honour's order limiting the period to which the documents required to be produced relate and requiring an undertaking limiting the persons permitted to inspect the documents and the order that the respondent pay the appellant's costs of and incidental to the application and the inspection were intended as a response to the appellant's Group Security Manager's concerns.

Rule 196A provides, in paragraph (a) thereof, that "any party to a cause may apply to a Judge for an order directing any person not a party to the cause to produce for inspection any document in his possession or power relating to any matter in question in the cause which he could be required to produce at the trial".

It was common ground between the parties to the appeal that documents ordered to be produced under this rule require to be specified with the same particularity as in a subpoena duces tecum. The fact that the order is sought against a third party, the terms of r. 196A and decisions of the Supreme Court upon the analogous Supreme Court rule support this view. See r. 196A(a) ("any document ... which he may be required to produce at the trial"); (c) and (d) ("a document", "the document"); Re Tallebudgera Estates Pty Ltd [1970] Qd.R. 63 at 74; Wm. Collin & Sons Pty Ltd v. T. & T. Mining Corporation Pty Ltd [1971] Qd.R. 427 at 435, 436, 441; Carr v. Queensland Newspapers Pty Ltd [1975] Qd.R. 169 at 175.

On no view does Her Honour's order satisfy that requirement
Subject only to a temporal limitation, it requires
production of "all papers and documents ... relative to
procedures in respect to armed hold-ups and steps taken to
prevent hold-ups and counselling of employees after hold-
ups". It then goes on to particularise, in an inclusory
way, one specific document without qualification as to its

contents and numerous classes of documents broadly by

reference to subject matter.

Furthermore, the classes of documents which Her Honour ordered to be produced were not shown to relate to any matter in question in the District Court action. They may or may not do so. The broad basis for the assertion of reliance appears to be a contention that it would be open to the respondent at the trial of the action to compare the defendant's systems and procedures with those of the appellant in order to demonstrate the former's inefficiency.

The conclusion is almost inescapable that the respondent seeks access to the documents to fish through them to see if some deficiency in the systems and practices of the defendant to the action can be discovered, pleaded if necessary, and proved.

During the course of argument the respondent suggested ways in which an order could be framed which had a more restricted operation. But these merely highlighted the difficulties with the present order, the extent to which even an order in such a restricted form would depart from the requirements of r.196A and the difficulty, on the present material, of obtaining any order under that rule.

The appeal should be allowed with costs and the order made below set aside.