Hancock v SA Tourism Commission No. Scgrg-99-658

[2000] SASC 172

HANCOCK v SOUTH AUSTRALIAN TOURISM COMMISSION
[2000] SASC 172

Appeal from a Master

1. DUGGAN J.      This is an appeal from orders made by a master of this court on an application for further and better discovery pursuant to R 58.04(e) of the Supreme Court Rules.  This rule provides that, where there are grounds for belief that some document or class of documents relating to any matter in question in proceedings may be or may have been, in the possession, custody or power of a party, the court may order that the party file and deliver to any other party an affidavit stating whether that document, or any of that class is or has been in its possession, custody or power and, if it has been but is not presently, to state when the party parted with it and what has become of it.

2. Rule 58.04(e) is in terms similar to its predecessor Order 31 r 16 which, in turn, was based on the former English rule Order 31 r 19A.  When explaining the rationale of the English rule in Thornett v BarclaysBank (France) Ltd [1939] 1 KB 675 at 682, Lord Justice Scott said:

   “Rule 19A was invented thirty or forty years ago, in a slightly different form from that which it wears to-day, for the express purpose of getting over a difficulty in relation to discovery.  The difficulty arose out of a principle regulating discovery under our system of procedure, which puts upon the party, whose duty it is to make discovery, the burden of honestly swearing what are the documents which are relevant, that affidavit being prima facie conclusive subsequently on the scope of relevance.  It was found that documents became omitted accidentally, and there was no procedure to get at them; hence the specific documents rule, which allowed the opposite party to impeach the view of relevancy upon which the opposing party’s affidavit had been framed.  The method allowed to the impeaching party was to file an affidavit saying that in his belief there was in the possession of the other party documents which did relate to the matters in question; and he had then to specify what they were.  Subsequently the rule was altered by allowing the affidavit of impeachment to refer to classes of documents in order to get over the difficulty of specifying the individual documents.”

3. In the well known case of Mulley v Manifold [1959] 103 CLR 341 at 343 Menzies J explained the nature of the High Court equivalent of the rule, O 32 r 18. After referring to the conclusiveness of an affidavit of discovery his Honour said:

   “It was in order to relax this rule to some extent that O. 32, r. 18 was introduced; this rule does permit an application for further discovery based upon the filing of an affidavit that there have been particular undiscovered documents in the possession of the other party which relate to a matter in question in the proceeding.  Pursuant to this rule, the Court, however, can do no more than order an affidavit in respect of particular documents and there is no doubt that the mere existence of such documents does not provide the basis for ordering a further affidavit in general terms although, if a document discovered pursuant to such a particular order were to indicate the existence of other material documents, that would warrant an order under O. 32, r. 13: British Association of Glass Bottle Manufacturers Ltd v Nettlefold (1912) AC 709.”

(O.32 r 13 provided a remedy in the event of delayed or incomplete discovery).

1. Rule 58.04(e) does not require the filing of an affidavit in support of an application for an order under the rule, although an affidavit dealing with matters of a formal nature was filed in the present case.  It was the view of Menzies J in Mulley v Manifold (at 344) that the matters required to be established before the court could make an order were not to be provided by an argumentative affidavit.

2. An order cannot be made under R 58.04(e) unless there is material which enables the court to conclude that there are grounds for belief that a particular document or class of documents may be or may have been in the possession, custody or power of the party against whom the order is sought and that the document or class of documents relates or relate to a matter in question in the proceedings.  In deciding these matters in the present case it is necessary to consider the pleadings and the lists of documents discovered thus far.

3. The plaintiff, by her statement of claim, claims damages for unfair dismissal and breach of an employment agreement between her and the defendant.  It is pleaded in the statement of the claim that the plaintiff commenced work as chief executive officer of the defendant on 14 July 1997.  It is pleaded that she entered into an agreement with the Minister for Tourism for employment for a period of four years.  The plaintiff claims that her employment was terminated on 23 December 1998 and that her dismissal was in breach of the agreement.  It is also pleaded that the defendant was guilty of misrepresentation and misleading and deceptive conduct as a result of which the plaintiff suffered loss and damage.

4. The defendant filed a list of documents on 11 November 1999 and a supplementary list of documents on 15 December 1999.  A further supplementary list of documents was filed by the defendant on 18 April 2000.

5. On 14 March 2000 the plaintiff filed this application for further and better discovery.  I use this shorthand description to describe the order which the court is empowered to make under R 58.04(e)(i) to direct the filing of an affidavit as to specific documents or a class of documents.  The application was supported by an affidavit sworn by the plaintiff’s solicitor.  The affidavit identified eleven categories of documents in respect of which the plaintiff sought further and better discovery.  The solicitor did not depose to any facts which might be used to found the belief which must be established under the rule.  The learned master ordered that an affidavit pursuant to the rule be filed by the defendant in relation to one document referred to in paragraph 2.6 of the affidavit of the plaintiff’s solicitor, but dismissed the application in so far as it related to the other documents.

6. It is convenient to set out the categories of documents identified in the affidavit of the plaintiff’s solicitor with the exception of the document which is the subject of the affidavit which the defendant is required to file pursuant to the master’s order.  The reference in the affidavit to the “Board” is a reference to the Board of the defendant.  The affidavit lists the following classes of documents:

   “2.1...... All Board papers of the defendant including Minutes for the period July 1997 to January 1999 inclusive.

   2.2Pursuant to Rule 58.07(5)(c) all Board members individual copies of Board papers upon which there is any note or endorsement.

   2.3........ All notes made by secretaries of proceedings at Board meetings for the period referred to in sub paragraph 2.1.

   2.4All Minutes and Board papers of the Regional Tourist Board for the period July 1997 to January 1999.

   2.5........ All diaries of the Chairman of the Board Mr Roger Cook for the period referred to in sub paragraph 2.1

   2.6. . . .

   2.7........ All documents concerning the calculation of payments made to the plaintiff on 24th December 1998 and 7th January 1999.

   2.8All documents directly or indirectly relevant to the allegations contained in paragraphs 12.3.1, 12.3.2, 12.3.3 and 15.2 of the Amended Defence.

   2.9........ All notes, memos, documents and correspondence relating to the meetings referred to in paragraphs 15, 16.3 and 16.3.4 of the Amended Defence and any other meetings between Cook and the plaintiff.

   2.10All notes, memos, documents and correspondence relating to any warnings or notice to the plaintiff that her performance as Chief Executive Officer of the defendant was unsatisfactory.

   2.11...... All news summaries relating to the performance of the plaintiff for the period July 1997 to January 1999.”

Paragraph 2.1

1. Mr Robertson conceded before the master that the description of the class of documents sought in paragraph 2.1 was too wide.  He advised the master that the plaintiff wished to limit the scope of this paragraph to documents created during the period July 1997 to January 1999 inclusive.  He said that he sought further and better discovery of the board papers of the defendant during that period.  He submitted that the defendant was required to discover not only those documents which contained some comment on the performance of the plaintiff as chief executive officer of the defendant but also documents which contained no such comment.  He said that the latter class of documents were relevant in that they had the potential to support the proposition that over a certain period of time there was no discussion before the board of unfavourable conduct by the appellant.  In other words, Mr Robertson said it was important to establish a negative in this respect.

2. It is necessary to refer to the pleadings in more detail.  In paragraph 10 of the statement of claim it is pleaded that the plaintiff entered into an employment agreement with the defendant “and thereafter loyally, skilfully and assiduously carried out her obligations pursuant to the agreement”.   Paragraph 13 of the statement of claim states that the plaintiff met with Mr Cook, the chairman of the defendant, on Wednesday 16 December 1998 prior to a board meeting of the defendant.  He is alleged to have told her that their relationship had irretrievably broken down and he sought a proposal from her as to how she might leave her employment with the defendant.  It is pleaded that Mr Cook said there was widespread industry dissatisfaction with the plaintiff and he was tired of defending her.  It is claimed that at the board meeting which followed attacks were made by two board members on the plaintiff’s performance.  It was at a board meeting on 17 December 1998 that a resolution was passed that the plaintiff’s employment be terminated.

3. The defendant, by paragraph 12 of the defence, pleads that the plaintiff entered into an employment agreement on 26 May 1997.  In paragraph 12.3 of the defence there is a denial that the plaintiff “loyally, skilfully and assiduously carried out her obligations pursuant to the terms and conditions of her employment”.  It is pleaded that the plaintiff was not skilful in managing the staff of the defendant and that she was not assiduous in carrying out her duties as chief executive officer.  In paragraph 16.3 of the defence, the defendant claims that the plaintiff’s performance was reviewed on or about 2 July 1998 and criticisms of that performance were raised with the plaintiff at that time.

4. The list of documents disclosed by the defendant includes a series of board minutes from June 1998 through to December 1998 when notice of dismissal was given.  There is no suggestion that the defendant has failed to discover board documents which refer to the plaintiff’s performance or any other matter relevant to the proceedings.  However, the issue raised by Mr Robertson is whether I should order further and better discovery on the basis that board papers in relation to other meetings would be relevant if they said nothing about the plaintiff’s performance or any other issue relevant to the proceedings.  The inference might be drawn, so it was argued, that there were no complaints at board level until the last six months of the plaintiff’s employment and the absence of any reference to a complaint or expression of concern about the plaintiff’s performance would be a matter relevant to the proceedings.

5. In my view this argument must be rejected.  Even with the concession made by Mr Robertson restricting the scope of the documents under this heading, the request is too wide and nebulous.  There might be cases where it is appropriate for a document to be discovered where the absence of a reference to a particular topic makes it relevant in some way.  However, in the circumstances of the present case, there is no justification for an order under R 58.04(e)(i) which would extend to every board document over a lengthy period of time on the basis that there was some relevance if no reference was made to a particular topic.  A notice to admit might well address the negative which the plaintiff wishes to establish, but an order requiring an affidavit of further and better discovery is inappropriate.

Paragraph 2.2

1. Paragraph 2.2 is subject to the same concession made by Mr Robertson as to the relevant time period.  A copy of a document, the original of which has been discovered, is discoverable if there is a note or endorsement on it which would itself be discoverable.  (R 58.07(5)(c)).  However, in so far as discovery is sought to establish a negative in the sense discussed above, the plaintiff’s application must fail for the reasons already given.

Paragraph 2.3

1. There was no material before the master to indicate that notes were prepared by secretaries at board meetings.  Notes made by secretaries relevant to the issues pleaded which are in the possession or control of the defendant would be discoverable, but I understand the plaintiff’s argument to be that all notes made by secretaries at board meetings are discoverable even if they make no mention of the performance or dismissal of the plaintiff.  Again, the argument is that it is important to establish the fact that no complaints were made over a particular period.  For the reasons which I have expressed above, there is, in my view, no requirement to discover such documents.

Paragraph 2.4

1. There is no reference in the pleadings to the Regional Tourist Board.  It is a entity separate from the defendant.  The defendant’s list of documents included minutes of the “Regional Tourist Board” meeting held on 2 December 1998.  There is no basis for assuming that the defendant was in possession of other minutes of this body which are relevant.

Paragraph 2.5

1. There is no basis upon which I could conclude that Mr Cook kept diaries or that he made entries in diaries which are relevant to the present matter.  I cannot infer from the fact that no diary entries were discovered that proper discovery has not been made in this respect.

Paragraphs 2.7 and 2.8

1. Counsel for the defendant advised the master that all relevant documents in these categories had been discovered.  Mr Robertson argued that the defendants should provide an affidavit under SCR 58.04(e)(i) “to verify that position”.  This is not the function or purpose of the rule.  There is no justification for questioning the extent of the discovery made thus far of the class of documents referred to in these two paragraphs.

Paragraph 2.9

1. Documents answering this description have already been discovered, some of them by way of further discovery.  Mr Robertson conceded that there was no basis for making an order pursuant to R 58.04(e)(i) in these circumstances.

Paragraph 2.10

1. It is the plaintiff’s contention that no notice was given to her in relation to unsatisfactory performance.  Any documents relating to such notice, if it were given, would be discoverable.  The fact that no document under this heading has been discovered suggests no more than that there are no such documents, a circumstance which is consistent with the plaintiff’s pleaded case.

Paragraph 2.11

1. It was explained to the master that this request related to media releases.  There was nothing before the master, nor is there anything before me, to suggest that the defendant prepared any press releases in relation to this matter.  Accordingly, there are no grounds for belief that any such documents exist.

2. The appeal will be dismissed.