Proude v Visic - [2012] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Civil)
PROUDE v VISIC & ANOR
[2012] SASC 184
Judgment of The Honourable Justice Blue
15 October 2012
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - GENERALLY
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - USE OF DOCUMENTS
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - AT WHAT STAGE OF PROCEEDINGS
The plaintiff is suing the defendants in negligence for losses suffered as a result of a bushfire on 10 and 11 January 2005. The plaintiff also claims to bring the action on behalf of all persons who sustained property loss caused by the bushfire. He is applying for authority to maintain the action as a representative action under rule 81 of the Supreme Court Rules 2006. The defendants are opposing that application and in the alternative seek security for costs under rule 81 or rule 194. Those contested applications are listed for hearing in November.
Mr Visic and the CFS seek disclosure of documents and/or information relating to the funding and beneficiaries of the action for the purposes of and ancillary to the interlocutory applications for authorisation and security for costs.
Held:
1.      The Court has power under rules 116(1) and 117(1) to make the orders sought if satisfied it is necessary in the interests of justice.
2.      The documents and information sought are not sufficiently demonstrated to be relevant to the authorisation and security for costs applications.
3.      Application refused.
Supreme Court Act 1935 (SA) s 40; Corporations Act 2001 (Cth) s 1335; Supreme Court Civil Rules 2006 (SA) r 81, r 116, r 117, r 136, r 138, r 194, r 263; Supreme Court Civil Rules 1987 (SA) r 3.04(g); Supreme Court Rules 1947 (SA) Order 31, Rules 10-17, referred to.
Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136; Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19, discussed.
Associated Dominions Assurance Society Pty Ltd v John Fairfax and Son Pty Ltd (1952) 72 WN (NSW) 250; Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155; Bell Wholesale Co Ltd v Gates Export Corporation (No 2) (No 2) (1984) 2 FCR 1; Caboche v Southern Equities Corp Ltd [2001] SASC 55; Duke Holdings Ltd (in liquidation) v Duke Group Ltd (in liquidation) [2009] SASC 245; Friends of Elliston - Environment & Conservation Inc v State of South Australia (No 2) [2007] SASC 325; (2007) 250 LSJS 425; Hunt & Boyce v Judge Russell (1995) 63 SASR 402 ; Knight v FP Special Assets Ltd (1992) 174 CLR 178; Nedlands Pty Ltd v Chisholm [1999] SASC 455; Normanville Constructions Pty Ltd v Callan (SASC, Nos 5012, 31 March 1995, unreported); Southern Equities Corporation Ltd (in liquidation) v Bond (No 3) [2000] SASC 318, considered.

PROUDE v VISIC & ANOR
[2012] SASC 184
Civil Interlocutory:
BLUE J:

The plaintiff, Mr Proude, is suing Mr Visic and the South Australian Country Fire Service (“CFS”) for losses caused by a bushfire on 10 and 11 January 2005 allegedly as a result of their negligence.
The plaintiff claims, and the defendants deny, that the action was commenced as a representative action whereby Mr Proude claims not only his own losses but also on behalf of all persons who sustained property loss caused by the bushfire (“Group Members”).
Mr Proude seeks an order under rule 81 of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) authorising him to maintain the action as a representative action on behalf of the Group Members. That application and foreshadowed security for costs applications are listed for a contested hearing before me in November.
Mr Visic, supported by the CFS, applies by interlocutory application for orders ancillary to the authorisation and security for costs issues, namely disclosure of documents and/or information relating to the funding and potential beneficiaries of the action. These reasons for judgment address that application. All parties agreed that I should decide this application in advance of the November hearing.
Background facts
On 10 January 2005 at about 3.00 pm, a fire broke out on the eastern side of Lady Franklin Drive, Lower Eyre Peninsula, which is approximately 45 kilometres northwest of Port Lincoln.[1]
[1] Statement of Claim [7], first defendant’s Defence [7], second defendant’s Defence [7].
Some time prior to 3.00 pm, Mr Visic drove and parked his land cruiser in the general vicinity in which the bushfire broke out.[2]
[2] Statement of Claim [6], first defendant’s Defence [6], second defendant’s Defence [6].
The bushfire burnt an area of land during the afternoon and night of 10 January 2005.[3]
[3] Statement of Claim [13-16], first defendant’s Defence [16], second defendant’s Defence [13], [15], [16].
On the morning of 11 January 2005, a fire (it being in dispute in the action whether it was the same fire or a different fire) broke out and burnt an extensive area of land.[4]
[4] Statement of Claim [16-17], first defendant’s Defence [16], second defendant’s Defence [16].
The fire or fires (collectively “the bushfire”) allegedly caused extensive damage to numerous properties.[5]
[5] Statement of Claim [18] not admitted by the defendants.
In February 2006, Duncan Basheer Hannon wrote to Mr Visic stating that they were acting for a number of persons who suffered property damage on 10 and 11 January 2005 as a result of the bushfire which was allegedly caused by Mr Visic’s motor vehicle. They said that they would formulate and provide details of the various claims in due course. In March 2006, they wrote to Mr Visic’s then solicitors enclosing a schedule of claimants for whom they were acting and foreshadowed sending a schedule with approximate estimates of damage suffered by each claimant.
In February 2008, Duncan Basheer Hannon wrote to the solicitor for the CFS enclosing a draft schedule listing the names of claimants and details of losses suffered (ranging from itemised breakdowns of loss to a single global figure for loss to a qualitative description of loss without any amount).
In August 2010, Gilchrist Connell wrote identical letters to the solicitors for Mr Visic and CFS. They said that they were acting for an insurer (QBE Insurance) which had paid out $7.5 million to insured persons who had suffered losses as a result of the 2005 bushfire. They enclosed a schedule listing the name of each insured and the amount paid by the insurer. They also said that they were authorised to communicate on behalf of (but implicitly were not generally acting for) four other insurers as well as various uninsured persons (implicitly represented by Duncan Basheer Hannon) who had suffered loss as a consequence of those bushfires. They enclosed a schedule setting out the names of the insured of one of those other insurers (Elders Insurance) and the amount paid to each by Elders totalling $5.3 million. They foreshadowed sending similar details in respect of the other three insurers who had paid out collectively $9.9 million to their respective insured persons. They foreshadowed providing similar details for uninsured persons who had suffered losses totalling $33 million according to Duncan Basheer Hannon. The letter thus referred to insured and uninsured losses totalling $55 million.
In December 2010, Duncan Basheer Hannon instituted this action. The named plaintiff was Mr Proude. The Statement of Claim pleaded that Mr Proude brought the action on his own behalf and that he also proposed to apply for authorisation to bring the action as a representative party on behalf of the Group Members, who included 285 persons named in the Schedule to the Statement of Claim (“the Schedule”). The Schedule included the names of those persons described as Duncan Basheer Hannon’s clients in their letter of February 2008 as well as those persons described as insured by QBE and Elders in Gilchrist Connell’s letter of August 2010 as well as other persons.
Mr Proude pleads that the bushfire and in turn the losses were caused by the negligence of Mr Visic on and as at 10 January 2005 in the modification, maintenance, operation, driving and parking of his vehicle. Mr Proude pleads that the losses suffered by those whose properties were burnt on 11 January 2005 were caused concurrently by the negligence of the CFS in its response to the bushfire which resulted in the bushfire breaking out on the morning of 11 January 2005.
The authorisation and security for costs applications
In August 2011, Mr Proude filed an interlocutory application seeking an order that the action be maintained as a representative action for the purposes of rule 81.
The authorisation application has been listed for hearing before me in November 2012. The application is opposed by the defendants, and in the alternative they contend that it should be a term or condition of authorisation that the represented persons be liable for the defendants’ costs as if they were parties or that security for the defendants’ costs be provided by the plaintiff. In the further alternative, if authorisation is granted without such a term or condition, the defendants seek an order that the plaintiff provide security for their costs pursuant to rule 194.[6]
[6] A direction has been made that these applications be filed and served by 17 October, but all parties proceeded on the current application on the assumption that those applications have been made.
The plaintiff contends that the Court has no power to make it a term or condition of authorisation that security for costs be provided under rule 81 or order security for costs directly under rule 194. The plaintiff contends that in any event, if the Court has power, it ought not to exercise its discretion to make any such orders. These are matters which will be argued in November. For the purposes of the present application, I simply assume (without deciding) that the Court does have power to make such orders.
Power to make orders for disclosure
The defendants rely upon three alternative sources of power for the Court to make orders for mandatory disclosure of documents and information relevant to authorisation and security for costs issues.
I am satisfied that the Court has power to make the orders sought by the defendants.
Rules 116 and 117
Rule 116(1) provides:
The Court has power to manage litigation to the extent necessary to ensure that it is conducted –
(a) fairly; and
(b) as expeditiously and economically as is consistent with the proper administration of justice.
Rule 117(1) provides:
The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
Rules 116 and 117 are not confined to trial or steps in preparation for or in connection with trial. They encompass the management of the litigation as a whole from commencement (or before) to final judgment (or beyond). I consider that rules 116(1) and 117(1) give the Court power to make an order for the disclosure of documents or information for the purposes of and ancillary to interlocutory applications such as for authorisation under rule 81 or security for costs under rule 194 where the Court is satisfied that it is necessary in the interests of justice (including for the proper conduct of the proceedings).[7]
[7] The Full Court in Beneficial Finance Corporation Limited v Price Waterhouse (1996) 68 SASR 19 held that the predecessor of rule 117(1), namely rule 3.04(g) of the Supreme Court Civil Rules 1987 (SA), gave power to make mandatory orders in an appropriate case for disclosure of documents other than documents relevant to the issues in the action: see at 22-23 per Cox J and 34-35 per Perry J.
This construction of rules 116 and 117 is consistent with rule 172(6) which permits a subpoena to be issued (for testimony, documents or both) for the purposes of interlocutory proceedings if a judge or master authorises it. If the Court has power to authorise the issue of a subpoena to produce documents or information relevant to an interlocutory issue, there seems no reason to read down rules 116 and 117 to deny the Court power to make orders directly requiring the disclosure of documents or information relevant to an interlocutory issue. The plaintiff concedes that the Court has power under rule 117(1) to make the orders sought by the defendants in this case.
Inherent jurisdiction
The defendants also contend that the Court’s inherent jurisdiction extends to making orders requiring the disclosure of documents or information for the purposes of and ancillary to an interlocutory application. The defendants refer to authorities which establish that the Court has inherent power to make orders for the disclosure of documents and information ancillary to an application for a Mareva injunction[8] and to a potential application for costs of action to be paid by a non-party.[9] On the assumption that rules 116 and 117 of the Rules did not give the relevant power, I would hold that the Court’s inherent jurisdiction encompasses the power to make such a order where it is satisfied that it is necessary in the interest of justice.
[8] Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) 1 NSWLR 155 at 164 per Glass JA and 165 per Priestly JA; Caboche v Southern Equities Corp Ltd [2001] SASC 55 at [47]-[53] per Williams J (Olsen J and Duggan J agreeing).
[9] Nedlands Pty Ltd v Chisholm [1999] SASC 0455 at [18] per Williams J; Southern Equities Corporation Ltd (in liquidation) v Bond (No 3) [2000] SASC 318 at [21] per Debelle J; Friends of Elliston – Environment & Conservation Inc v State of South Australia (No 2) [2007] SASC 325; (2007) 250 LSJS 425 at [12]-[13] per Bleby J.
Rule 136(1)(b)
The defendants also rely upon rule 136(1)(b) as empowering the Court to order disclosure of documents which are not relevant to any issue in the action but are relevant to an interlocutory application. I reject that contention.
Rule 136(1) provides:
Each party must disclose the documents that are, or have been, in the party’s possession and –
(a) are directly relevant to any issue raised in the pleadings; or
(b) are to be disclosed by order of the Court.
The second limb of sub-rule (1) takes its colour from the first limb and provides for the Court to specify narrower, broader or different criteria for determining the relevance of, and hence necessity to disclose, documents which are relevant to the issues in the action.
Sub-rules (3) and (4) provide that disclosure is to be made within 21 days from the close of pleadings (or the end of a settlement conference if there is one). The disclosure required by sub-rule (1) therefore applies in every action (not just those rare actions in which a party seeks an order for disclosure of documents ancillary to an interlocutory application). The identification of the documents to be included in the list of documents is assumed by sub-rule (3) to be by reference to the pleadings. Sub-rule (3) contemplates only a single type of disclosure under rule 136 and not multiple disparate types of disclosure required at different stages of the proceedings. Sub-rule (3) also assumes that rule 138(1) empowers the parties to dispense with, or regulate the extent of, disclosure under Part 3. There is no reason why the mere fact that the parties might have dispensed with disclosure of documents under Part 3 should affect the Court’s power to order disclosure of documents for the purposes of an interlocutory application.
The context of rule 136 is that it forms part of Part 3 – Disclosure and Production of Documents. That Part in turn is part of Chapter 7 – Pre-Trial Procedures. Other parts of Chapter 7 include Part 2 – Interlocutory Applications and Part 14 – Security for Costs. This suggests that Part 3 is not intended to encompass disclosure of documents for the purpose of interlocutory or security for costs applications, but rather is addressing documents relevant to the issues in the action.
My conclusion is reinforced by the provisions of the predecessor rules on which rule 136 was based. Rule 58.01 of the Supreme Court Civil Rules 1987 (SA) was confined to disclosure of documents relevant in the action and the same applied to rule 58.04.[10] Similarly, Order 31 Rules 10-17 of the Supreme Court Rules 1947 (SA) were confined to disclosure of documents relevant in the action.
[10] Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19 at 32-33 per Perry J and 51-52 per Lander J.
Approach to applications for disclosure for interlocutory purposes
While the Court has power to order disclosure of documents or information for the purposes of and ancillary to an interlocutory application, the position is markedly different to that under rule 136 in relation to disclosure of documents relevant to the issues in the action. In the latter case, the obligation to make disclosure is cast automatically by the Rules on the parties in all actions to which Chapter 7 applies and in this sense the opposite party may be said to have a prima facie “right” to disclosure.[11] In the former case, the parties have no right to disclosure of documents for the purposes of interlocutory applications. The Court must first be satisfied that it is necessary “in the interests of justice” (or for the proper conduct of the proceedings). It is only when that pre-condition has been satisfied that the Court’s jurisdiction under rule 117(1) is enlivened.
[11] The Court has a discretion to limit or dispense with disclosure which qualifies this prima facie “right”.
In considering such an application, the Court should bear in mind that an application for disclosure invokes the compulsive process of the Court to require a party to produce documents or information against its will. This compulsive process should only be invoked where required in the interests of justice.
Rule 3 provides that:
The objects of these rules are …
(c)     to avoid all unnecessary delay in the resolution of civil disputes; and
(d)     to promote efficiency and dispute resolution so far as that object is consistent         with the paramount claims of justice; and
(e)     to minimise the cost of civil litigation to the litigants and to the State.
Rule 116(1)(b) itself provides for the Court to manage litigation to ensure that it is conducted as expeditiously and economically as is consistent with the “proper administration of justice”. The hearing of an application for and making of an order to compel disclosure of documents or information for the purpose of an interlocutory application would necessarily add both to the time and cost of the litigation.
This is not to say that there will not be cases from time to time in which it is in the interests of justice for the Court to order disclosure of documents or information for the purpose of and ancillary to an interlocutory proceeding. However, in the ordinary course, interlocutory matters are capable of being decided in accordance with the interests of justice without making such orders. When such an application is made, both the Court’s assessment of the interests of justice and the exercise of its discretion will involve weighing the prejudice to applicant if the order is not made against the effect of an order on what would otherwise be the respondent’s privacy and the time and cost occasioned by the application and order if made.
The documents and information sought
The documents of which disclosure is sought by the defendants are as follows:
1.any agreement by any insurer, litigation funder or other third party with the plaintiff or the plaintiff’s solicitor, to pay his costs of action, or any costs ordered against him in this action;
2.any documents evidencing payments made to the plaintiff’s solicitor by any insurer, litigation funder or other third party for costs incurred in this action;
3.any agreement by any insurer, litigation funder or other third party to indemnify the plaintiff for any costs incurred by him or awarded against him in this action.
The information of which disclosure is sought by the defendants is as follows:
1.identification of those persons who stand to benefit from the current proceedings;
2.the arrangements that have been put in place whereby persons or organisations other than the plaintiff:
(a) will fund the proceedings and/or
(b) will benefit from the proceedings.

The orders as sought for disclosure of documents tend to focus on documents relevant to funding and/or indemnification of the plaintiff by an insurer, litigation funder or other third party. By contrast, the orders sought for disclosure of information tend to focus on represented persons who stand to benefit from the action as opposed to true third parties. The orders sought contain a degree of overlap between disclosure of documents and disclosure of information.
At the hearing of the application, a distinction was made between the represented persons (assuming that an authorisation order is made) on the one hand and litigation funders or other true third parties on the other hand. At the hearing, the defendants sought disclosure of both documents and information in relation to both categories, but tended to focus upon the latter.
It is convenient therefore to address the defendants’ application separately in relation to two categories:
1.The represented persons (encompassing any insurers who paid out losses and have right of subrogation) (“internal beneficiaries”).
2.Any external insurer, litigation funder or other true third party who might be funding or stand to benefit from Mr Proude’s action (“external funders”).
The relevance of the documents and information sought
The plaintiff contends that the documents and information sought are not relevant to authorisation or security of costs.
External funders
The defendants identify the relevance of disclosure of documents or information concerning arrangements between the plaintiff and external funders as being relevant to the question whether security for costs might be refused because it would stultify the action. The defendants contend that, if it is disclosed that there is in existence an external funder (whether insurer, litigation funder or other true third party), the existence of that external funder (and details of funding and indemnity arrangements) may well prove that an order for security of costs would not stultify the action.
The plaintiff contends that the Court does not have power under any of the sub-paragraphs of rule 194(1) to order security for costs. Assuming that the Court does have power to order security for costs, it is generally a prerequisite that the defendant establish that the plaintiff will be unlikely to have sufficient resources to meet an order for costs if the action were to prove unsuccessful.[12] It is well established that, when the Court assesses whether a plaintiff has sufficient resources for this purpose, the Court looks to the resources of the plaintiff himself or herself.[13]
[12] This is required explicitly under rule 194(1)(a) and indirectly under rule 194(1)(d) (via section 1335 of the Corporations Act). This approach is likely to apply as a matter of general principle to those applications for security for costs which fall within rule 194(1)(e) (necessary in the interests of justice).
[13] See for example the approach of Lander J in Normanville Constructions Pty Ltd v Callan (SASC, Nos 5012, 31 March 1995, unreported, at 7-9) and of Perry J in North Groongal Pty Ltd v ANZ McCaughan Ltd (1993) 170 LSJS 77 at 78 and 80.
It is also well established that, if a plaintiff wishes to contend that an order for security will stultify the action, the onus lies upon the plaintiff to prove not only that the plaintiff himself or herself cannot provide the security but also that there are no persons standing to benefit from the action who are able to provide security.[14]
[14] Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 per Shephard, Morling and Neaves JJ at 4; Duke Holdings Ltd (in liquidation) v Duke Group Ltd (in liquidation) [2009] SASC 245 at [21]-[45] per White J.
During the hearing of this application, counsel for the plaintiff explicitly conceded that, if the plaintiff were to seek to rely upon an allegation of stultification at the hearing in November, the onus would lie upon the plaintiff to disclose details of any persons funding or indemnifying him or who stand to benefit from the action.
In these circumstances, disclosure of documents or information concerning external funders is not demonstrated to be relevant at this stage.
Internal beneficiaries
Persons who are represented by a plaintiff in a representative action under rule 81 are not parties to the action and are therefore not subject to the prima facie obligation of a losing party to pay the costs of the successful party.[15] However, it is well established that costs can be awarded against a non-party, and in particular in circumstances in which the non-party stands to receive a direct benefit as a result of the plaintiff’s success in the action.[16] Accordingly, in appropriate circumstances, the Court has a discretion to order a represented person to pay the defendant’s costs of action.
[15] Rule 263(1).
[16] Supreme Court Act 1935 (SA) section 40(1); Knight v FP Special Assets Ltd (1992) 174 CLR 178.
The defendants contend that disclosure of documents and information should be made by the plaintiff to identify who are the represented persons (and any insurers who have subrogation rights) who either stand to benefit from the action or might be funding or indemnifying the plaintiff in the action. The defendants contend that this is relevant in the same way as in respect of external funders, namely going to the issue of potential stultification of the action. For reasons given in relation to external funders, it has not been demonstrated that the documents and information are relevant at this stage.
During argument, the defendants did not clearly articulate how the documents and information sought would otherwise be relevant to the issues relating to security for costs to be argued in November and in particular how what they might show would make a difference between an order or no order or the terms of an order for authorisation or security for costs. At this stage, I do not know what precise contentions will be put by the parties concerning the authorisation and security for costs issues. It is conceivable that a contention will be made which will render relevant to those issues the question what if any arrangements have been made between the plaintiff and represented parties for the funding or indemnification of the plaintiff. However, that is mere speculation at this stage. It has not been sufficiently demonstrated that the documents or information sought will be relevant or how they would be relevant at that hearing.
In those circumstances, I decline to make the orders sought. Being an interlocutory application, there is nothing to prevent the defendants renewing their application for disclosure of documents or information at or after the hearing in November if a specific relevance emerges.
Fishing
The plaintiff contends that, in any event, the defendants’ application constitutes fishing and should therefore be dismissed.
The cases cited by the plaintiff are subpoena cases. It has been held that a subpoena may be capable of being set aside on the grounds that it is fishing in the sense that:
a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding whether there are any there or not.[17]
[17] Associated Dominions Assurance Society Pty Ltd v John Fairfax and Son Pty Ltd (1952) 72 WN (NSW) 250 at 254 per Owen J.
For this purpose, a subpoena is not regarded as “fishing” if it is “on the cards” that the documents in question exist.[18]
[18] Hunt & Boyce v Judge Russell (1995) 63 SASR 402 at 409 per Perry J.
In the present case, insofar as disclosure of documents or information is sought concerning the arrangements between the plaintiff and internal beneficiaries, on the evidence before me, it is likely that some form of arrangement exists (going to the application for disclosure of information) and that some form of documentation of that arrangement exists (going to the application for disclosure of documents). The letters from Duncan Basheer Hannon in 2006 and 2008 and from Gilchrist Connell in 2010 suggest that many of the persons listed in the Schedule were clients of Duncan Basheer Hannon and had provided instructions to that firm.
In relation to the category of external funders, there is no evidence that any third party has funded or indemnified the plaintiff. However, I would not be disposed to regard the application for disclosure in relation to any arrangements with external funders as objectionable on the ground of fishing.
In Bailey v Beagle Management Pty Ltd,[19] the respondents in the action applied for security for costs against a corporate applicant. They served notices to produce financial statements of the corporate applicant which were relevant to the issue of its ability to meet an adverse costs order. The corporate applicant applied to set aside the notices to produce on the ground that they were an abuse of process as fishing. The Judge at first instance declined to set aside the notices to produce and his decision was upheld on appeal. Heerey, Branson and Merkel JJ said:
[19] [2001] FCA 60; (2001) 105 FCR 136.
Thirdly, even if the notices to produce are properly to be regarded as fishing, that concept has undergone substantial rethinking in this Court in recent years. In a number of cases it has been pointed out that O 15A r 6 (discovery before action) expressly contemplates what once might have been castigated as fishing and that it would be incongruous if the power to order discovery were less extensive in favour of a party to a proceeding properly brought in the Court than in favour of someone unable for lack of evidence to mount a case: Also one should not lose sight of what the majority of the High Court in Grant v Downs noted as the public interest
“…which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available.”
The applicants’ suggested rule imposes a requirement that, to avoid the stigma of fishing, a party must already be in possession of some evidence before issuing a notice to produce (or, presumably, any other compulsive interlocutory process). But historically the concept of fishing was not concerned with the prior possession of evidence but rather that there was a prior pleading which raised issues for which the evidence sought by the process would be relevant. …
The substantive issue for present purposes is not the ultimate liability of the respondents but the question of security for costs. There are no pleadings as to that, but for practical purposes the issues on the security application have been raised in the correspondence between the parties. At the risk of tedious repetition, we note again that the documents sought are relevant to those issues.
Moreover, often a holding that interlocutory process is fishing on closer examination appears to be more a question of oppression. In Small … Jordan CJ goes on to say:
“Even if the documents are specified, a subpoena will be set aside as abusive if great numbers of documents are called for and it appears they are not sufficiently relevant.”
His Honour appears to accept that, when the documents sought from a party to the proceeding are described with reasonable particularity and are relevant, they could not be said to be sought for the purpose of fishing, although if a large number of documents of only marginal relevance were sought, the subpoena would be set aside as oppressive.[20]
[Citations omitted]
[20] [2001] FCA 60 at [27]-[32]; (2001) 105 FCR 136 at 143-144.
Particulars of claims by represented persons
By paragraph 18 of the second statement of claim, it is pleaded that, by reason of the bushfire, each Group Member suffered property loss, being damage to the surface of the Group Member’s land (soil, trees and vegetation) and to buildings, goods and livestock thereon. By paragraph 26, it is pleaded that, by reason on that property loss and damage, each Group Member suffered consequential losses (diminution in value/reasonable cost of reinstatement of land, loss of profits, loss of use and other consequential losses). In each case, it is pleaded that further particulars of the loss or damage suffered by the Group Members will be provided later.
I consider that it will be relevant to consideration of the issues to be argued in November that the Group Members (as defined at the commencement of the action in December 2010) be identified together with an estimated global loss suffered by each Group Member. Accordingly, I propose to direct that the particulars of loss foreshadowed in the statement of claim, to that extent, be provided prior to the hearing in November.
Conclusion
I am not satisfied that it is necessary in the interests of justice to make the orders sought. I decline to order disclosure of the documents or information sought by the defendants.
I will order that particulars of the Group Members and their estimated global losses be provided prior to the November hearing.
I will hear the parties as to the precise orders to be made.