Morgan v WorkCover Corporation
[2006] SADC 80
•25 July 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
MORGAN v WORKCOVER CORPORATION
[2006] SADC 80
Judgment of His Honour Judge Tilmouth
25 July 2006
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION
The Applicant applied for further and better discovery and production on the basis of incomplete and partial discovery - effect of Rule 58A - matters to be established before further and better discovery should be made - appeal from Master refusing orders for discovery and to cross-examine on affidavit of discovery.
Held: Allowing the appeal. An unduly restricted construction of the scope of the issues arising on the pleadings, led the Master into error.
Held further, the modified Rules relating to discovery do not authorise the deletion of portions of documents on the basis of mere irrelevance.
Order for production of entire documents made.
Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045, [9, 14-18]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 41-996, [2004] FCA 353; Channel 7 Adelaide Pty Ltd v Lane (2004) 234 LSJS 225 at [253]; Quenchy Crusta Sales Pty Ltd v Logi Tech Pty Ltd [2002] SASC 374 [12], referred to.
Telstra Corporation v Australis Media Holdings NSW (SC): BC 970141 - 10 February 1997 NSWSC; Condatal Pty Ltd v Industries Research and Development Board (2005) 223 ALR 284, [52-62], applied.
MORGAN v WORKCOVER CORPORATION
[2006] SADC 80The Primary Proceedings
Angela Mary Morgan, by proceedings issued 19 March 2003, claims damages for the wrongful publication of a letter written by her on 1 November 1994 to the Chief Executive Officer of the defendant, Mr L Owens. She alleges that on the following day a copy of her letter was provided to a Mr and Mrs Mallard, a disclosure in breach of an undertaking of confidentiality given to her by the defendant, in breach the s110 of the Workers Rehabilitation and Compensation Act 1986 (SA) and in breach of the protection afforded by s7 of the Whistleblowers Protection Act 1993 (SA).
Section 110 of the former Act authorises a requirement to be made of any person to answer any question relevant to any matter arising under that Act. Whilst section 112 makes it an offence to disclose information obtained by means of s110, with certain limited exceptions, s7 of the latter imposes an obligation of confidentiality with respect to “public interest information”, despite “any other statutory provision at common law to the contrary”.
The underlying nature of these proceedings is described more fully in a judgment delivered by Judge Sulan (as His Honour then was) in Morgan v Workcover Corporation[1]. It is sufficient for the current purpose to note that His Honour refused an application by the defendant (respondent) to strike out the claim, on the basis that no cause of action arose.
[1] Morgan v WorkCover Corporation [2001] SADC 122.
Lying at the heart of her action are the following allegations contained in the amended particulars of claim[2]:
12. On or about the 2nd November 1994, the Defendant provided Mr and Mrs Mallard with a copy of the letter of 1st November containing the Disclosure without the knowledge of the plaintiff, also failing to delete her personal details as informant (“The Provision to Mallards”).
12A At some time or times between November 1994 and the trial in the Magistrates Court of the Mallards’ claims against the plaintiff, (Action No 95/18167) the defendant gave the Mallards access to its files relating to the Plaintiff’s Workcover claim contrary to the provisions of The Workcover Act.
12B The Mallards used information obtained from the said files while giving evidence in relation to their (Action No. 95/18167) to lend credence to their account of events. In particular, Mr Mallard referred to my later difficulty in obtaining reimbursement for the cost of a surgical bra, (page 6 of the transcript of that hearing in Action No. 95/18167) Mr Mallard also referred to the sum of money ($60,000.00) that Workcover believed that I was seeking as compensation (page 4 of the transcript in Action No. 95/18167) Mr Mallard also referred to two medical reports that I allegedly showed him, (page 7 of the transcript of that hearing in Action No. 95/18167).
12C The Mallards had in their possession a confidential statement dated the 15 November 1994 made by the plaintiff to Ian Basey of Workcover and used the confidential statement during the said hearing in the Magistrates Court in Action No. 95/18167 as evidence against the plaintiff to lend credence to their account of events, after assurance of confidentiality was given to the plaintiff by Ian Basey, an officer of the Defendant, the letter of confidentiality was dated 27 September, 1994”.
[2] Particulars of Claim dated 19 March 2003, FDN 28.
It can be seen that paragraph 12C also suggests another unlawful disclosure – it will become necessary to return to this subject matter later in these reasons.
The Interlocutory Proceedings Before the Court
The current matter before the Court is an appeal launched on 14 December 2005[3] by Mrs Morgan (applicant) pursuant to s43(2)(a) of the District Court Act 1991 (SA), from a decision of a Master given on 2 December 2005, refusing her application to cross-examine the deponent of an affidavit filed by the defendant relating to discovery and for further and better discovery by the defendant. There is a long history of interlocutory proceedings in this action which are summarised in the judgment of the Master. As the facts are more fully detailed therein, there is no need to repeat them again, except to the extent necessary to explain this judgment.
[3] FDN 18
The defendant has filed three lists of documents; the first on 23 August 2002 listing some thirteen documents[4]; the second a supplementary list of 6 June 2003 disclosing a further eight documents[5]; and the third a further supplementary list dated 17 November 2003, discovering one further item[6]. Further “discovery” of additional sections of internal memorandums of the defendant of 27 March 1997 and 19 November 1996, was made in open court on 3 July 2006. Otherwise the defendant contends the application by Mrs Morgan is based on nothing more than “pure conjecture”[7] and that there are no grounds for believing further documents exist.
[4] FDN 18.
[5] FDN 29.
[6] FDN 33.
[7] Written submissions 3 July 2006.
In the main, the nature of those documents is formal, or otherwise confined to correspondence between the parties and the like. It is not an extensive discovery on any view. Among the items that were discovered, are letters from the defendant under the signature of I Basey, “Thompson” and K Brown and a letter from R Mallard of 13/11/94. Another two documents were described as “Letter from Gary to Fred with chronology table of events re statement given to R and S Mallard” and “Hand written letter re Morgan – Geraghty letter attaching letter dated 13/12/1996 from G McDonald to R Geraghty re accusations against Mr Owens (draft and final versions) dated 13/12/1996”[8].
[8] Items 2 and 12 of List of Documents 23 August 2002.
Following an order of the Master, an authorised officer of the WorkCover Corporation, one Kathryn O’Donnell, filed an affidavit deposing to searches made for further documents, and the extent of that search. This is the deponent Mrs Morgan seeks to cross-examine.
Ambit of the dispute over discovery
As the argument unfolded during the hearing before this Court, Mrs Morgan who was unrepresented, made wide ranging submissions. These can be fairly summarised, I think, in the following way, even though it proved difficult to have her focus on specific documents. First, there was a general contention that because she possessed copies of certain documents which must have also been in the possession of the defendant, the defendant ought to discover them. That argument confuses the restricted obligation of discovery, dealt with later in these reasons, with the notion that an opposing party must produce anything and everything that could possibly be relevant. This is the point made (correctly) by the Master in his Reasons[9], the “plaintiff is not entitled to all documents in the defendant’s possession, only documents directly relevant to the matter in issue”. As pointed out by the Full Court in Channel 7 Adelaide Pty Ltd v Lane[10]:
It is consistent with the intent of Rule 58A.03 to apply the requirement of direct relevance firmly, and to give it a relatively narrow meaning. To hold that a document is not directly relevant to an issue arising on the pleadings is not to deprive a party of access to the document. The effect of such a holding is merely that the requirement to discover the document is not imposed by Rule 58.03, and that the Court will decide, on application to it, whether the document must be discovered. In other words, Rule 58A.03 draws the line between an obligation to make discovery as a matter of course, and an obligation to make discovery upon application to the Court and after the Court has considered whether the interests of justice requires that discovery should be made.
Another point relevant to the meaning of Rule 58A.03 is that the Rule assumes that a party is able to decide, from the pleadings, what documents must be discovered. This also suggests a narrow meaning of “directly relevant”. It will be counter-productive if a party was expected to discover documents because they might be relevant, depending on how the other case was put at trial. Rule 58A.03 assumes that a party can determine that party’s obligation to make discovery by reference to the pleadings”.
[9] Para. [98].
[10] (2004) 234 LSJS 225 at [253].
Secondly, she identified several classes of documents, claimed to be in the possession of the defendant. The first were claimed to be demonstrably handed over to the Mallards, because of the evidence they gave during the course of defamation proceedings launched by them against her in the Magistrates Court[11]. Proof of the existence of those documents is said to arise from the transcript itself. A copy of the pages of the transcript relied upon for that purpose, and pleaded in paragraph 12B of her Statement of Claim, do not bear that inference out. The transcript in terms, for the main part, speaks of information provided orally to Mr Mallard by the plaintiff, with one exception. During the course of that evidence the following exchange occurred:
[11] Mallard & Mallard v Angela Mary Morgan, reasons for judgment of GS Hiskey Esq SM, 10 September 1996, and on appeal Morgan v Mallard (1997) 68 SASR 184.
"Q“Don’t tell us, stop there. You told us that there were various things happening, now I think in November 1994, there was an occasion when Mr Owens came to your office.
AYes.
QJust tell us about that.
ALou Owens came into my office, closed the door, he said ‘Do you know an Angela Morgan’, I said ‘Yes, she’s involved as a witness with my wife’s employers who are being prosecuted by the corporation for inducement and threats’. Mr Owens said ‘You better read this’, and handed me a letter from Angela Morgan to him. I read the letter, felt pretty nauseated and angry at the time. I mentioned to Mr Owens that it was libellous and that I was going to consider taking action for defamation. He said to me ‘I want a formal response from you as soon as possible’, and gave me the letter, sorry, I already had the letter, and then he left. I took the letter home, showed it to my wife, I drafted out a formal response that same evening, took it back to work the next day, photocopied both the original letter from Mrs Morgan and also my response, and kept that for my only personal records, gave the original letter and the original of my response to Mr Owens. After that, what happened, I don’t know.
and later:
QThe letter of 1 November ’94 that Mr Owens showed you, you may not recall, but I suggest to you it was marked ‘private and confidential’, do you recall that.
AIt’s possible, I was to be quite honest more interested in the content of the letter, than its form at the time. It is possible that it could have been, and I noticed in subsequent correspondence that ‘private and confidential’ was written at the very top, now it’s quite possible when I photocopied the letter, that it did not photocopy if it was right on the top of the paper, that’s a possibility, but I won’t say certain, it’s just if you like, I’m looking for a reason for that happening.
QI think you responded to Mr Owens on 3 November.
AYes.
QThe day after he had come to see you.
AYes.
QThere was no further correspondence between you and Mr Owens on that topic.
ANo.
QCorrect me if I am wrong, but there was no further discussion of that topic between you and Mr Owens, your response was accepted.
AThat’s right, I was expecting a response, but it never came.”
It is to be noted at this point, that the plaintiff has discovered her letter to Mr Owens, and for its part the defendant has discovered the letter of response referred to in this extract of the transcript.
Another class of documents identified by Mrs Morgan related to those generated by her application to the defendant under the Freedom of Information Act 1991 (SA), seeking access to documents relating to the circumstances of the “disclosure”, as pleaded above. In the result the Ombudsman required the defendant to produce further documents, which it did. The nature of the obligations arising by force of that statute are quite different from those pertaining to the discovery process in a civil court; the two do not necessarily correspond, although they may overlap. Nevertheless Mrs Morgan maintains the material passing between the defendant and the Ombudsman should also be discovered.
Finally she seeks production of further material in a third category, related to an investigation by the Anti-Corruption Branch of the SA police in relation to the alleged disclosure.
The plaintiff also complains that the defendant produced some documents, parts of which were blanketed and that she was entitled to complete copies. This was done, according to the defendant, because the masked sections were not directly relevant to the proceedings.
The Extent of the Obligation to make Discovery
The obligation to give discovery in the civil court is no longer anywhere nearly onerous as it once was, under the so-called Peruvian Guano test[12]. Rule 58A.03 erects a lesser and significantly modified obligation of discovery, one with respect to only those documents “directly relevant to any issue arising on the pleadings”. The Rules therefore dictate the test of direct relevance is one to be determined by the issues arising on the pleadings and they also suggest discoverable documents are those which tend to prove or disprove an allegation in issue, as explained by Bleby J in Southern Equities (No 5)[13]:
[10] However, there is a further qualification, in that the documents must be "directly" relevant. I doubt whether that qualification effectively narrows, for the purposes of discovery, ordinary concepts of relevance for the purpose of admissibility into evidence. In my opinion, it cannot mean, if the document is not itself proof of a fact in issue but is merely a piece of circumstantial evidence tending, along with other evidence, to prove the fact in issue, that it is not discoverable. Many a case is provable and in fact proved by circumstantial evidence, including documents. I note that a similar view was expressed by Demack J in Robson v REB Engineering Pty Ltd (1997) 2 Qd R 102 at 104 - 105 in respect of a similar rule in Queensland. The Rule cannot be allowed to govern in practice the admission of documents into evidence merely because they have not been revealed in the discovery process.
[11] What the qualification does reinforce is the notion of relevance to proof or disproof of a fact in issue, and the unquestionable abolition of the rule which required discovery of a document which might directly or indirectly lead to a train of inquiry or which might, in some other way, otherwise advance the party's case or damage that of the adversary. For example, it would seem that documents going solely to the credit of a witness, unless that witness's credit is an issue raised on the pleadings, would not be discoverable. However, it is inappropriate to attempt to define exhaustively what will and what will not be discoverable under this Rule.
[12] Compagnie Francaise v The Peruvian Guano Company (1882) 11 QBD 55 at 63.
[13] Southern Equities Corporation Ltd (in liquidation) v Arthur Anderson & Co (No 5) [2001] SASC 335.
The “new” Rules reflect an acceptance that the previous obligation of discovery could be altogether too onerous, one requiring the production of documents quite out of proportion to their usefulness and that that exercise may entail undue expense[14].
[14] Quenchy Crusta Sales Pty Ltd v Logi Tech Pty Ltd [2002] SASC 374, [12] per Doyle CJ.
Quite apart from these limitations, the Court is empowered to order production of documents although not directly relevant, which are “indirectly relevant to any issue arising on the pleadings” where it is in the “interests of justice” to do so: Rule 58A.04(1)[15]. In that event the applicant partly should “identify clearly the intended use of the documents to be produced”[16].
[15] See Quenchy Crusta v Logi Tech (above) at [42].
[16] Rehn v Australian Football League [2003] SASC 159, [20] per Doyle CJ; Channel Seven Adelaide P/L v Lane and Hurley [2004] SASC 177, [22-25], Duggan Mulligan and Nyland JJ.
The specific documents sought by Mrs Morgan
Following several hearings during which the request for better discovery was ventilated, Mrs Morgan found it difficult to be specific as to the precise documents she wanted. Her focus was always on categories of documents, effectively discovery at large. The Court therefore directed her to file a written list, identifying the precise documents she maintained the defendant failed to discover[17]. She did that by forwarding a letter dated 11 May 2006. Unfortunately her response was once again in the nature of an ambit claim, nominating three categories of material:-
1.All investigation reports and outcome of my complaints regarding the provision of my documentation to the Mallards.
2.All documentation regarding the rejection of legally entitled payments, after my Public Interest Disclosure that I should have received, and how the payments I received were worked out.
3.All documentation relation to FOI requests internal and external made to access my Public Interest Disclosure regarding the Mallards.
[17] Order of 24/4/2006.
Her written submission, however, discloses that she received “the majority” of the requested documents through the Freedom of Information process, and that many of them were not discovered by the defendant, as she claims they should have been, even though she has copies herself. As to those documents already in her possession, it would be “oppressive and vexatious”[18] to order the defendant to produce them. In one of the documents referred to by her dated 14 October 1996, a Fred Morris of WorkCover Corporation refers to “a copy of [her] statement made to Mr I Basey on 15 November 1994”, so there can be no doubt as to the existence of that document, one as mentioned, contained in her own List of Documents.
[18] Sportingbet Australia Pty Ltd v K & S Corporation [2004] SASC 31 at [28].
Analysis of the issues
The transcript of the proceedings before the Master and his reasons of 2 December 2005 demonstrate both patient and meticulous attention to the questions argued before him. In the end result he concluded that (at [121]) he was “not satisfied that the plaintiff has demonstrated that the discovery … is inadequate”, although he earlier noted with respect to paragraph 12A of the Statement of Claim “documents which established this should be discovered” (at [54]) and with respect to paragraph 12C “this document will be directly relevant and discoverable” (at [56]). Those views were correct. Moreover (at [183]) the Master summarised the issues of relevance, but failed to include the disclosure of the interview of 15 November 1994 – an issue now conceded by the defendant to be relevant – and in that respect, fell into error.
This appeal comes into this Court by way of rehearing[19]; it must consider the exercise of the Master’s discretionary power afresh. In embarking upon that exercise it is clear enough that any documents tending to prove, or to disprove that the letter of 1 November 1994, or the statement generated by the interview of 15 November that year, came into the possession of either Mr or Mrs Mallard, are directly relevant.
[19] DCR 97.
The sequence of events emerging from the pleadings is that the letters dated 28 March 1994, 9 August 1994, 6 September 1994 and 27 September 1994 were sent to Mrs Morgan requesting her to answer questions concerning a Workcover claim by Mrs Mallard, purportedly exercising the powers contained in s110 of the WorkCover Act. These were admittedly sent by Andrew Thompson. In agreeing to do so, she was provided, as the defence admits, with a promise of confidentiality. As a consequence, on 1 November 1994 Mrs Morgan complied with her obligations as she understood them to be, by writing her letter to Mr Owens and then by participating in the interview of 15 November. The core complaint is that both documents were forwarded by some means or another to Mr and Mrs Mallard. These allegations crystallise in paragraph 12 of her Particulars of Claim dated 19 March 2003, quoted above.
The existence of her letter is admitted by the defence[20] and the statement itself is acknowledged in the WorkCover letter to Mrs Morgan dated 14 October 1996, as noted already. Accordingly, any documents throwing light on whether (and how) the letter and the statement found – or did not find - their way into the hands of the Mallards from Mr Owens and Mr Basey respectively, are directly relevant. The defendant has barely discovered any such material, judging from the lists of documents filed by it.
[20] Para 9 Amended Defence 10 April 2002, FDN 15.
During the course of the resumed hearing before the Court, it became apparent that the defendant conducted an internal inquiry relating to the “disclosure”[21]. It seems likely during the course of such an inquiry, that statements were taken from or made by Mr and Mrs Mallard, Mr Owens or Mr Basey, or anyone else in the chain leading to the Mallards and if not that some note or memorandum would have been created as a consequence of those persons being approached during the course of an inquiry, concerning the alleged disclosures. Such records would clearly be directly relevant to the issues as pleaded[22].
[21] Transcript 2 March 2006 P109, P114 L8 – P116.
[22] Transcript 2 March 2006 p 111 .L29-35.
At that time Dr Baxter (counsel for the defendant) was unable to advise whether or not anyone had been interviewed. It is difficult to comprehend how the defendant can claim all directly relevant documents were discovered, without its counsel knowing whether statements or notes of those interviews even exist. However, Dr Baxter volunteered on the last occasion the matter was before the Court, that some notes relating to the inquiry were in fact made. He went on to submit on the earlier occasion that the question of how that material came into the hands of Mr and Mrs Mallard was not “open on the pleadings”[23].
[23] Transcript 2 March 2006 P116 L 31 – 117 L3.
It became clear during the course of argument that the defendant had taken a rather restricted view of the pleadings before the Master. Ultimately Dr Baxter accepted that the paragraph 12 allegations were to be read as alleging the statutory and personal undertakings of confidence, was also allegedly breached by WorkCover by providing to Mr and Mrs Mallard a copy of the statement, in addition to the letter. In that event, the circumstances in which both came to be released (if at all) are surely directly relevant[24]. When one looks at the pleadings, bearing in mind they were prepared by an unrepresented litigant and bearing also in mind the decision of Judge Sulan, it appears tolerably clear from paragraph 12C that Mrs Morgan complains about the use of her statement of 15 November 1994. To think otherwise, is as stated during the course of argument, to take “a very narrow view of the layman’s pleadings”[25].
[24] Transcript 2 March 2006 P117 L13-23.
[25] Transcript 2 March 2006 P119 L18-19.
Resolution of the Issues
Accordingly the question of direct relevance must be measured against these central allegations as now understood. On the assumption there was an internal inquiry conducted by the defendant, it seems likely that Mr and Mrs Mallard, Mr Owens, Mr Thompson and Mr Basey and perhaps others would have been interviewed concerning the “disclosure” events and either a transcript or statement created, or notes or a memorandum made thereof. Subject to issues of privilege, which can be duly claimed if necessary once any further list of documents is furnished, documents of that kind ought to be discovered.
So far as documents relating to the Ombudsman’s involvement and that of the Anti-Corruption Branch are concerned, apart from any formal correspondence, other documents passing between those offices and the defendant, would already be in its possession and discoverable if directly relevant. Any further discovery of these documents would therefore be futile, or otherwise simply fishing. In any case the files kept by the Police Department and the Ombudsman’s Office would be amenable to third-party subpoena, subject to any applicable statutory or other immunities.
The production of part documents
As to the documents partly disclosed, the defendant says the excised material is not directly relevant, but it claims no other privilege or confidence with respect to the deleted material. It is not uncommon for documents produced for inspection to be edited, in order to exclude material relating to other matters, for reasons of confidentiality. And of course it is common-place to excise portions of documents over which privilege is claimed. It is not common to edit material on the basis of mere irrelevance.
Once it is accepted that a document is directly relevant, there is no proper basis to censor other material within it, based on the possessing party’s subjective assessment of relevance, apart from the purpose of preserving an identifiable privilege or confidence, which can be dealt with on the merits in the usual way. Documents are normally properly understood and weighed in their context as a whole, so that the entire remains directly relevant. The same applies with greater force when provenance is in issue. As a matter of construction the Rules contemplate the discovery and production of entire documents. That being so, there is no justification for excising material from documents, on such a solitary basis. This was the view taken by Lee J in Condatal Pty Ltd v Industries Research and Development Board[26].
[26] (2005) 223 ALR 284, [52-62].
Compliance with the Rules therefore requires, in the first place, the obligation to discover and consequently to produce documents in full. Excision is permitted, as already acknowledged, to protect recognised confidential or privileged material: Gray v Associated Book Publishers (Aust) Pty Ltd[27], Australian Competition and Consumer Commission v McMahon Services Pty Ltd[28].
[27] [2002] FCA 1045, [9, 14-18] Branson J.
[28] (2004) ATPR 41-996, [2004] FCA 353.
This was the approach accepted by McLelland CJ in Eq, in Telstra Corporation v Australis Media Holdings[29], Selway J in ACCC v McMahon Services Pty Ltd[30], Sunberg J in Rio Tinto Ltd v Commissioner of Taxation (Cth)[31], R D Nicholson J in Garnet International Resources Pty Ltd v Barton International Inc.[32], and Cooper J in Westfield Management Ltd v Brisbane Airport Corporation Ltd[33].
[29] NSW (SC): BC 970141 – 10 February 1997 – NSW (SC): BC.
[30] Above at [12-13]
[31] [2005] FCA 1335, [15-27],
[32] [2005] FCA 93, [7-17].
[33] [2004] FCA 611, [12, 22-24].
It would be a mistake to think these principles are confined to the Federal Court. As suggested above, the “new” discovery rules (effective from 3 June 2000) provide no basis for a claim of irrelevance relating to portions of a document; they are drafted in terms and description as pertaining to documents, so that the whole must be produced if any part of it is directly relevant. This construction is supported by the fact that the only basis provided for in the Rules to excise material is on grounds of privilege [Rule 58A.05].
As explained in Telstra Corp Ltd v Australis Media Holdings[34] the better view of recent discovery regimes, is to require full production:-
The relevant orders of 20 December 1996 required the discovery of documents of various categories, subject to certain exclusory or qualifying provisos. The categories are defined by reference to whether the documents "record" certain matters. The relevant defendants have discovered copies of documents within those categories, but with parts masked, as I have indicated, accompanied by the claim that the masked parts are not relevant - an alternative assertion of privilege in respect of some of the masked parts has not been pressed.
For the purpose of facilitating a decision as to whether the masking is justified I have, by consent, been provided with unmasked copies of the documents in question ... It has been accepted that for the purpose of discovery it is proper, if physically practicable, to withhold from inspection those parts of a discovered document in respect of which there is a valid claim of privilege (see Curlex Manufacturing v Carlingford General Insurance (1987) 2 Qld R 335, Grofarm v Australian and New Zealand Banking Group (1993) 43 FCR 408 and Optus Communications v Telstra Corporation (27 April 1995, Lockhart J unreported), or, subject to what is said below, those parts which are irrelevant (see GE Capital Corporate Finance Group v Bankers Trust Company (1995) 1 WLR 172). This represents a rule of practice which provides, in that sense, a gloss on express requirements imposed by rules or by orders of the court. There is, however, a difference for the purposes of the application of this rule of practice between cases of privilege, on the one hand, and cases of irrelevance on the other. The existence of a recognised privilege confers a positive right to withhold production, whereas exclusion of part of a document on the ground of irrelevance is permitted as a matter of practice, in order to avoid infringement, for no legitimate purpose, of interests of privacy and confidentiality, and thus to avoid injustice.
There is a serious risk that too assiduous a masking of documents on the grounds of irrelevance will create gaps affecting the ready comprehensibility of the remaining portions of the document and of the context in which those portions appear. If for this, or any other, reason, masking on the ground of alleged irrelevance would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document, then such masking is not justified.
Under the new discovery rules, Pt23 of the Supreme Court Rules, which apply to proceedings commenced on or after 1 October 1996, classes of documents required to be discovered may be, and were in the present case, specified not by reference to relevance to a fact or facts in issue, but by description of the nature of the documents, rendering it unnecessary to consider questions of relevance to an issue, as such. If in such cases the party giving discovery desires to withhold, by masking or otherwise, production of part of a discoverable document on the ground that that part does not contribute to the satisfaction of any of the criteria by reference to which the class of documents is described, then it may be that a case can be made for giving effect to that desire, but in my view, unless there is some relevant qualification in the order for discovery, the order requires that the whole document be produced unless there is an agreement to the contrary by the party to which discovery is being made, or unless relief from the requirement, for example by masking certain portions, is obtained from the Court.
So far as the Court's discretionary power to grant such relief is concerned under Pt23 r4, the matters requiring consideration would include the following, namely: (a) whether the part of a document sought to be excluded from production contains material which contributes to the document's satisfying any of the criteria of the description which renders it discoverable; (b) whether the exclusion of that part will, or is likely to, detract from a proper understanding of the meaning and significance of those parts of the document which do contribute to the satisfying of any of those criteria; and (c) whether it is apparent that there are, or may be, substantial privacy or confidentiality interests which ought to be given protection.
Part 23 of the Supreme Court Rules New South Wales (Uniform Procedure Rules) are not materially different for this purpose from Rule 58A.03 in substance, even though their structure and that of O15 of the Federal Court Rules are.
[34] Above at pp 2-4.
An examination of those documents partially produced suggests at first sight the whole ought to be disclosed. Furthermore, since substantial parts of these documents were revealed, it would also be in the interests of justice to produce the whole under Rule 58A.04. Should it prove necessary, the Court has the power to inspect the redacted documents for the purpose of determining the validity of any objection to full disclosure (Rule 59.04) and it has the additional power to make any other order to preserve a properly claimed confidence (Rule 59.05).
Orders
Accordingly, there should be an order requiring the defendant to produce the whole of the following documents (subject to any proper claim for protection of the masked portions) as sought by the plaintiff:-
1. Memorandum Andrew Thompson/L Owens 11/11/94 (marked 114).
2. Memorandum Mike Terlet/Fred Morris 19/12/96.
3. Memorandum Mike Terlet/Fred Morris 13/12/96 (marked 116).
4. Memorandum Keith Brown/Fred Morris 27/3/1997 (marked 112).
5. Letter State Ombudsman to Ms K Brown 3/8/1999 (marked RMV 4).
6. Memorandum from Gary to Fred dated “22/11” (marked 113).
Insofar as the plaintiff seeks the reports of investigations, documents relating to the rejection of her payments, and all documents relating to FOI requests made by the Mallards, they should be refused on the grounds of relevance. There is nothing in her pleadings with respect to such material, or otherwise articulating a cause of action based on breaches of the Freedom of Information Act. Insofar as she argued for disclosure of documents relating to the rejection of her payments might be relevant to damages, the internal reasoning process by which the defendant made, or refused to make certain payments to her under the Act, are not relevant to her measure of damages on account of the breaches she does allege. Given that the court proposes to make orders for the production of further material, no useful purpose would be served in requiring the deponent of the affidavit to submit to cross-examination. Consequently that aspect of the appeal will be dismissed.
The appeal will therefore be allowed to the limited extent that there will be an order requiring WorkCover Corporation to discover the following documents:
1.The letter from G McDonald to R Geraghty of 13 December 1996 (referred to in the undated document entitled to “Gary” from “Fred” dated “22/11”).
2.Any statement, notes, or memorandum created of or relating to any interview with Mr L Owens, Andrew Thompson, Ian Basey, Mr and Mrs Mallard or any other employee or officer of the defendant, concerning publication or production to Mr and/or Mrs Mallard of the letter from Mrs Morgan of 1 November 1994 and the statement of Mrs Morgan of 15 November 1994.
There will be a further order requiring the defendant to produce un-masked copies of the six documents listed above.
The parties are entitled to be heard on the question of costs.
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