Rann v Olsen No. Scgrg-97-913 Judgment No. S237

RANN V OLSEN

[1999] SASC 237

JUDGE BURLEY. By application dated 14 October 1998 the defendant seeks the following order:-
“1..... That the plaintiff be required to attend before the Court for cross examination on the affidavits sworn by him on 17 and 24 September 1998.”
The application is made pursuant to SCR 58.04A(1) which is as follows:-
“The Court may at any time order that the deponent to an affidavit filed under Rule 58.04(e) either answer written interrogatories and/or attend before the Court for cross-examination on the affidavit where it is satisfied that there are reasonable grounds to suspect that such deponent, or a party for whom he has made the affidavit, has not made full and proper discovery of documents in the proceedings.”
Sub-rule (3) of that rule is as follows:-
“The Court may discharge an order made under sub-rule (1) above if before the interrogatories are answered or the cross-examination occurs the party against whom the order has been made files a further affidavit making full and proper discovery of documents.”
It would seem to me, a fortiori, that if a further affidavit by the party required to give discovery is filed after the application for leave to cross-examine has been made, and if the combination of affidavits is sufficient, the Court would decline to give leave to the applicant to cross-examine the relevant deponent.
The plaintiff has made an application for further and better discovery pursuant to SCR 58.04(e). Part of that application may be material to the defendant’s application for leave to cross-examine. The relevant part is as follows:-
“1..... That the defendant give further and better discovery of -
...
(iii).. of [sic] the documents pertaining to the $1.5 billion water and sewerage outsourcing contract tabled by the defendant in the House of Assembly on 4 February 1997 and the documents described by the defendant in the House on that day as being ‘the personal file of the former chief of staff of [former Premier Brown]’.”

In broad terms, the interrelationship between the two applications is that, on the defendant’s application, the whereabouts of certain documents and the statements made by the plaintiff in relation thereto are crucial and, on the plaintiff’s application, his ability to state the whereabouts of the relevant documentation might be assisted if the defendant gives the further and better discovery sought.
The plaintiff’s application follows upon an order made by me on 4 September 1998 which is as follows:-
“That within 14 days the plaintiff file and serve an affidavit in accordance with the requirements of Rule 58.04(e)(i) in relation to the categories of documentation referred to in paragraph 2 of the application by Doc 17.”
Paragraph 2 of the application by Document 17 is as follows:-
“2..... That the plaintiff give further and better discovery of Cabinet submissions, documents from Cabinet sub-committees, Crown Law documents and the contract relating to the $1.5 billion water and sewerage outsourcing contract referred to in the evidence given by the plaintiff to the Joint Committee on the National Crime Authority on 10 June 1997.”
The background to the defendant’s original application for further and better discovery and to the defendant’s present application for leave to cross-examine is set out in reasons published by me on 4 September 1998 (Judgment No S6832). In those reasons I said:-
“The plaintiff claims damages from the defendant for alleged defamation, said to arise from media conferences given by the defendant. The defendant’s application for discovery relates in particular to a media conference on 10 June 1997, the details of which are set out in paragraphs 5 and 7 of the statement of claim. During the course of the conference reference was made to evidence given by the plaintiff to a Federal parliamentary committee earlier that day. Part of what was said by the plaintiff to the parliamentary committee is set out in paragraph 16.2 to 16.4 of the defendant’s amended defence. The paragraphs are as follows:-
‘16.2During the course of his evidence the Plaintiff said:
“The second example I wanted to discuss this morning relates directly to my view that the National Crime Authority with special powers should be responsible for examining corruption at governmental and corporate level across Australia. Last year I had reason to contact the state director of the NCA in Adelaide with information that I believed warranted an NCA inquiry.
Just to put this into context, during the past couple of years I have received a series of leaked, confidential documents about two multi-million dollar outsourcing contracts here in South Australia. The leaked information has included Cabinet submissions, documents from Cabinet subcommittees, Crown Law documents all about the $1.5 billion water and sewerage outsourcing contract, and later we received the entire contract itself.
We have also received confidential Cabinet information about South Australia’s other outsourcing contract with the US computer firm EDS. The EDS leaks, including, again, confidential Cabinet information, were given to us by a senior Cabinet minister intent on damaging the credibility and bringing down the former Premier Dean Brown, and successfully did so. These are matters of a political nature which I believe should be dealt with politically and, except for the breach of a Cabinet minister’s legal oath of confidentiality, these are not matters that, in my view, would normally be the subject of inquiries by law enforcement officers.”
16.3During the course of the Plaintiff’s evidence, the following exchange took place:
Mr Filing:.......... “Who was the cabinet minister who gave you the documents from Cabinet?”
Mr Rann:............ “I think we should leave that to their own conscience.”
Mr Filing:.......... “I am asking you.”
Mr Rann:............ “If you are asking me, the Cabinet minister involved was John Wayne Olsen.”
16.4.......... During the course of the Plaintiff’s evidence, the following exchange took place:
Chair:................. “Just to clarify one aspect of the evidence you have [sic] in respect to Mr Olsen: is that an accusation that you have made anywhere else before?”
Mr Rann:............ “It has been made again in the Federal parliament but I have always said that I would only confirm that if I was asked directly by a parliamentary committee, and that is what happened today from Mr Filing. Put it this way: Mr Olsen, before he became Premier, was particularly helpful to the opposition.” ’

These paragraphs occur under the heading “PARTICULARS OF TRUTH” in the defendant’s amended defence. The defendant then pleads:-
‘16.5......... The Defendant did not leak or give documents from Cabinet to the Plaintiff.
16.6.......... The Plaintiff’s assertion as to the Defendant’s involvement was without substance. It follows that the Plaintiff could not have had an honest belief in his assertion.’

The plaintiff maintains that the defendant accused him of being a liar in relation to, in particular, an answer given by him to the Federal parliamentary committee, that the defendant, when a Cabinet Minister, had provided confidential Cabinet information and documentation relating to an outsourcing contract with the entity described as “the US computer firm EDS”.
It is apparent that the plaintiff, before the parliamentary committee, referred to the wrongful disclosure to members of the Opposition of Cabinet submissions, documents from Cabinet sub-committees, Crown Law documents and a contract relating to what was described as “the $1.5 billion water and outsourcing contract”. Before the committee, the plaintiff also referred to having received confidential Cabinet information about the outsourcing contract with EDS. I shall refer to these respectively as the “E & WS disclosures” and the “EDS disclosures”.

It appears to be common ground that the EDS disclosures took place prior to November 1996 when the defendant replaced Mr Dean Brown as Premier of the State. The E & WS disclosures took place between November 1996 and June 1997 when the plaintiff gave evidence to the parliamentary committee.

Mr Heywood-Smith, counsel for the plaintiff, submitted that the defendant was not entitled to the discovery sought as referred to above because the documentation sought was not material to the matters in issue in these proceedings between the parties. In developing this argument he said that the plaintiff’s statement to the parliamentary committee that information was wrongfully disclosed by the defendant related only to the EDS disclosures, which took place prior to the defendant becoming Premier of the State. It was not then, nor is it now, asserted that the defendant wrongfully disclosed any information relating to the water outsourcing project.

In response to paragraph 16.5 and 16.6 of the amended defence, the plaintiff asserts in paragraph 2 of his further more explicit reply that he had an honest belief that the defendant had given confidential information to both himself and to another Opposition member of parliament and that the defendant had given Cabinet documents to the same Opposition member of parliament. He then sets out particulars of the matter upon which that belief is based. None of those particulars consists of an assertion that the E & WS disclosures formed part of the plaintiff’s belief that the defendant had been responsible for the EDS disclosures. This is not surprising given that the plaintiff acknowledges that, if the EDS disclosures were made by the defendant in order to undermine the position of Mr Dean Brown as Premier, the subsequent E & WS disclosures could not have that effect because by then the defendant had replaced Mr Brown as Premier.”

After my order of 4 September 1998 the following documents were filed and served:-
......... the affidavit of the plaintiff sworn on 17 September 1998 (Document 26);
......... the affidavit of the plaintiff sworn on 24 September 1998 (Document 27);
......... the application of the defendant seeking leave to cross-examine (Document 30);
......... the affidavit of Ms Eldridge, one of the defendant solicitors, sworn on 14 October 1998 (Document 31);
......... the affidavit of the plaintiff sworn on 20 October 1998 (Document 32);
......... the affidavit of Ms Eldridge sworn on 3 November 1998 (Document 33);
......... the affidavit of the plaintiff sworn on 17 November 1998 (Document 36);
......... the application of the plaintiff for further and better discovery (Document 37);
......... the affidavit of Mr Storer, the plaintiff’s solicitor, sworn on 26 November 1998 (Document 38).
In his affidavit of 17 September 1998 the plaintiff referred to a list of documents exhibited to the affidavit consisting of 17 documents, all of which were photocopies.
Item 18 in the list is as follows:-
“18... Documents specified in 1 - 17 above, forming part of a set of documents tabled in the House of Assembly by the Defendant on 4 February 1997.”

The list is in the form of two schedules called the First Schedule and the Second Schedule. Items 1-18 are set out in the First Schedule. The Second Schedule is as follows:-
“The documents from which the documents set out in 1 - 17 of the first schedule were photocopied.”
The plaintiff said in his affidavit that he has in his possession, custody or power the documents set out in the First Schedule, presumably, although it is not clear, with the exception of Item 18. By paragraph 4 of his affidavit he said that he has had but does not now have in his custody, possession or power those documents referred to in the Second Schedule. He said that the documents specified in the Second Schedule were last in his possession, custody or power on 16 January 1998. He said that he did not know what had become of the documents in the Second Schedule since that date. In his affidavit of 24 September 1998 he corrected that date to 16 January 1997 stating that an unintentional error had been made in the preparation of his earlier affidavit.
By his affidavit of 20 October 1998, which followed Ms Eldridge’s affidavit of 14 October 1998, he asserted that the further documentation suggested by Ms Eldridge to have come into his possession fell outside the order made by me on 4 September 1998, with one exception. He then referred to a list exhibited to his affidavit of 20 October 1998 and identified Document 19 on that list as having been omitted from his earlier list.
Paragraph 2 of the plaintiff’s October affidavit is as follows:-
“Notwithstanding that the further documentation [referred to in Ms Eldridge’s affidavit] falls outside of the order of Master Burley, I now discover that material as documents numbered 20 to 46 in the further list marked ‘MDR1’. I say that the material is not relevant to the issues in the within proceedings. I have instructed my solicitors not to argue about the material because I believe that the defendant is using such argument to delay the within proceedings advancing to trial.”
In paragraph 5 of his October affidavit the plaintiff said that the documents numbered 19-46 in the exhibited list are all photocopies of documents provided to him. The originals ceased to be in his possession or power on 16 January 1997. In paragraph 4 of his affidavit he said that on that date he returned the documents to the person who gave them to him. He stated that he did not know what had become of them since.
The plaintiff referred in his affidavit of 17 November 1998 to the affidavit of Ms Eldridge sworn on 3 November 1998. He said that all documents leaked to him in relation to the water outsourcing contract (including more than 20 fax cover sheets) were photocopied before they were returned and that he had already discovered copies of all of those documents. He said that to the best of his knowledge no other such documents had been in his possession, custody or control.
In paragraph 6 of his November affidavit the plaintiff said:-
“Further, I say that it is my belief that the actual documents referred to in the second schedule to the list of documents comprised in ‘MDR1’ to my affidavit of 17 September 1998 (being those documents to which the defendant’s present application relates) are the same documents as those tabled by the defendant in the House of Assembly on 4 February 1997 (alternatively, are the same documents as those from which photocopies were made, which photocopies were tabled by the defendant in the House of Assembly on 4 February 1997). It is my further belief that those documents were in the power, possession or control of the defendant on 4 February 1997 and have remained in his power, possession or control since that date.”
A number of issues arise with the first affidavit of the plaintiff and the two affidavits of Ms Eldridge:
......... Whether the plaintiff ever had in his custody, possession or control the water outsourcing contract. The defendant says that he must have and the plaintiff said that he did not.
......... Whether the other water outsourcing documents (namely those documents numbered 1-46 in the list referred to above), when they were handed to the plaintiff, were original documents or photocopies of originals or a combination of both.
......... Whether the documents tabled in Parliament by the defendant on 4 February 1997 are the documents which were handed to the plaintiff.
......... Whether the documents tabled in Parliament consisted of originals or photocopies or a combination of both.
There may be other uncertainties arising from the affidavit material, but these were the main issues pursued by the defendant on his application for leave to cross-examine the plaintiff.
Mr Whitington QC, counsel for the defendant, argued that the uncertainty arising from the affidavits filed by the plaintiff in relation to further and better discovery was such that leave should be given to the defendant to cross-examine the plaintiff with a view to reducing or removing the uncertainty that presently exists.
Mr Heywood-Smith, counsel for the plaintiff, argued that the combination of the plaintiff’s affidavits stated the position as to the whereabouts of the water outsourcing documents as clearly as possible and that there was no warrant for the granting of leave to cross-examine. He said, in addition, that the plaintiff could only clarify the accuracy of his belief if he was given access to the water outsourcing documentation pursuant to that aspect of the plaintiff’s application for further and better discovery. If the defendant was required to give further and better discovery of the water outsourcing documentation in the defendant’s custody, possession or power, the plaintiff would be able to examine the documentation to see whether some or all of it was the same documentation as supplied to him.
The submission that clarification of the plaintiff’s position might be possible if the defendant were required to give discovery of the water outsourcing documentation in his custody, possession or power is only as good as the right of the plaintiff to obtain such further and better discovery. It is necessary to decide on the defendant’s application for leave to cross-examine, that part of the plaintiff’s application for further and better discovery because I consider it to be a material factor to be taken into account in the exercise of the Court’s discretion as to whether or not leave to cross-examine should be given.
Mr Whitington contended that those documents (as identified in paragraph 1(iii) of the plaintiff’s application by Document 37) were not discoverable by the defendant even if they were within his custody, possession or power because there was no proof that those documents tabled in Parliament on 4 February 1997 by the defendant were the documents handed over previously to the plaintiff and which were in turn photocopied by the plaintiff.
Whilst it may be true that there is no proof on this interlocutory application one way or the other as to that point, there is undoubtedly uncertainty as to whether or not the tabled documents were the ones handed to the plaintiff and that, in my view, is sufficient to make them discoverable by the defendant if they are or have been otherwise in his custody, possession or power.
A central issue in these defamation proceedings is whether or not the defendant was the source of the wrongful disclosure of the water outsourcing documentation to the plaintiff because it relates to the honest belief referred to in the plaintiff’s reply. Central to that question is the ascertainment of the exact nature of the documentation handed to the plaintiff. That is not a matter which can be decided on an application for leave to cross-examine. It will remain an issue to be determined at trial.
The plaintiff has disclosed a belief that the water outsourcing documentation handed to him may be the same documentation which was tabled by the defendant in Parliament and that belief, in my view, is sufficient to establish the possibility that those documents handed to the plaintiff may be the same documents tabled by the defendant in Parliament. Because the defendant tabled the documents in Parliament, it must be said that, up to that point, he at least had the custody or possession of that documentation and to that extent he must give discovery of the documentation tabled in Parliament.
I am unable to determine whether or not, after the documentation was tabled in Parliament, the documentation nevertheless remained within the custody, possession or power of the defendant because that point was not addressed sufficiently by counsel during argument. It may be a moot point because I have been given to understand that the documentation so tabled is open to inspection both by members of the Parliament and members of the public. That being the case, even if the defendant lost custody, possession or power in respect of the tabled documentation once it was tabled in Parliament, it is open to both the plaintiff and the defendant to inspect that documentation. It may be necessary for the defendant to inspect the documentation so that he can provide a detailed list of the documents so tabled: Re McGorm (1989) 20 FCR 387.

It was argued by Mr Whitington that there was no need for the defendant to give discovery of the tabled documentation because the plaintiff could inspect the documentation in any event. Such a submission does not constitute a basis for refusing to discover documentation which is otherwise discoverable by the defendant. I have concluded that it is discoverable by the defendant and, accordingly, he should file the appropriate affidavit pursuant to SCR 58.04(e)(i).
In light of the above conclusions, I turn to a consideration as to whether or not the discretion to grant the defendant leave to cross-examine the plaintiff should be exercised in favour of the defendant. As mentioned earlier in these reasons, I need to consider whether or not, since the application was made, the plaintiff has remedied the initially deficient affidavit of discovery. If I conclude that he has done so, it must follow that leave to cross-examine should be refused.
There are other considerations which I must take into account. First, I think that the discretion to grant leave to cross-examine should be exercised sparingly whereas in this case, one party would be given the opportunity to cross-examine another party prior to trial about matters which will be live issues at trial. Such a result should be avoided if it is possible otherwise to be fair to the parties at the interlocutory stage. Second, I consider that the intention behind the rule is to permit cross-examination only in circumstances where there are reasonable grounds to suspect that a party to proceedings has either deliberately, recklessly or carelessly failed to make proper discovery of documents.
Mr Whitington submitted that the position maintained by the plaintiff in relation to whether or not the water outsourcing contract had ever been in his custody, possession or power creates the relevant suspicion that the plaintiff has not given full and adequate discovery. The plaintiff maintains that he has never had the water outsourcing contract in his custody, possession or power and yet some of the evidence indicates that he has, both directly and by inference. It was submitted that, given the position taken by the Opposition in Parliament concerning the disclosure of the water contract to Mr Kevin Foley, it must be inferred that the plaintiff at least read the document at some stage.
It seems to be clear that the contract was never handed directly by a third party to the plaintiff. The evidence discloses that it was handed to Mr Foley, a senior member of the Opposition Shadow Cabinet.
The defendant’s complaint that the discovery is inadequate because there has been a failure by the plaintiff to give discovery in respect of the water contract can only be measured by reference to whether or not the plaintiff as Leader of the Opposition had the custody, possession or power in respect of the document. The defendant can only point to dealings with the document in Parliament and the fact that the document was given to a member of the Shadow Cabinet at a time when the plaintiff was the Leader of the Opposition. It is not possible on the affidavit material before me to form even a tentative view as to whether or not, because the document was disclosed to Mr Foley (and presumably he retained actual possession of the document thereafter), the plaintiff as Leader of the Opposition had some power or control in respect of the document. It does not necessarily follow that because a member of the Shadow Cabinet receives a document it is therefore within the control of the Leader of the Opposition.
It was also put that as a matter of inference the plaintiff must have at least read the document. I do not think that that is the sort of custody, possession or control contemplated by the requirements of discovery: see Simpson Bailey and Evans, Discovery and Interrogatories, (1st Ed) at 32 and Taylor v Santos (1998) 71 SASR 434.
As to the remainder of the documentation, it is clear that the plaintiff wishes to avoid naming the person who gave the leaked documentation to him in the first instance. It is equally clear that the defendant would like to obtain this information from the plaintiff by way of cross-examination. On the affidavit material before me I do not consider that there are reasonable grounds to suspect that the plaintiff has failed to provide full discovery either deliberately, recklessly or carelessly.
The nature of the documentation handed to the plaintiff by the unnamed source can be established, to the degree applicable at the pre-trial stage, by the plaintiff having recourse to an inspection of the documents tabled in Parliament and the filing of a further affidavit with a view to clarifying the accuracy of his present belief as expressed in paragraph 6 of his affidavit of 17 November 1998. If, after the plaintiff has inspected the documents tabled in Parliament, they prove not to be in whole or in part the documents handed to him by the unnamed third party, it will be necessary to consider whether or not the plaintiff will be required to state the name of the person to whom the documents were returned. The defendant is entitled to ascertain by way of the discovery process what became of the documents after they were handed back by the plaintiff. That will not necessarily disclose where the documents are now but it enables the defendant to seek non-party discovery from the person to whom they were returned with a view, in due course, to ascertaining where the documents are now.
For these reasons, the defendant’s application for leave to cross-examine the plaintiff will be refused pending the filing of a further affidavit of the plaintiff after he has had the opportunity to inspect the tabled documents.
There remains to be determined the balance of the plaintiff’s application for further and better discovery.
That application is supported by the affidavit of Mr Storer sworn on 26 November 1998 (Document 38). The application deals with four distinct categories of documents. I have already dealt with category (iii). Category (i) consists of “all documents relating to donations made to the Liberal Party by Catch Tim Ltd and by Moriki Products Pty Ltd, including documents relating to the identity of persons associated with those companies”. In paragraph 2 of his affidavit Mr Storer says:-
“2..... Sub-paragraphs 2.1, 2.2, 2.4 and 2.5 of the Second Further More Explicit Reply raise issues pertaining to the defendant’s awareness of donations made to the Liberal Party during 1995 and, in particular, the involvement of a Mr Rob Gerard and two companies, Catch Tim Ltd and Moriki Products Pty Ltd in the making of such donations.”
Paragraphs 2.1, 2.2, 2.4 and 2.5 of the second further more explicit reply are as follows:-
“2.1.. On or about the 21st February 1995 the defendant advised the plaintiff in the corridor outside the Chamber that the then Premier of South Australia, the Honourable Dean Brown (‘Brown’) had misled the House concerning the identity of a donor to the Liberal Party, Catch Tim Limited. On the same occasion the defendant agreed to talk further with the plaintiff on the issue.
2.2... Shortly after the events referred to in 2.1 hereof the plaintiff telephoned the defendant in his Parliamentary office at night. A conversation ensued in which the defendant advised the plaintiff that Brown had misled the House and must, as the Treasurer of the Liberal Party at the relevant time and a member of the Liberal’s fund raising committee, have known of the identity of Catch Tim and all other donors. During the course of the conversation the defendant referred to one Vicki Chapman (‘Chapman’) and indicated that Chapman would be asked by Brown to ‘take the rap’ for the Catch Tim donation. The defendant urged the plaintiff to pursue the matter in the House as the plaintiff was ‘getting close’. The defendant also advised the plaintiff that ‘You should pursue the Rob Gerard connection’. Rob Gerard (‘Gerard’) is the Managing Director of Gerard Industries Pty Ltd. The defendant also said ‘You might want to talk to Dale Baker in respect of this’. Dale Baker MP (‘Baker’) is and was the Member for MacKillop and a Government Member in Parliament at all material times. Baker was at the relevant time the Minister for Primary Industries. Baker was at all material times a known supporter of the defendant.
...
2.4... In or about mid-March 1995 Baker arranged to send to the plaintiff two sheets of paper containing questions regarding Catch Tim Limited which were received at the plaintiff’s office in Parliament House. The questions were in the nature of proposed questions to be put to Brown in the House. The plaintiff formed the belief that the sheets of paper had been forwarded by either the Defendant or Baker on the defendant’s behalf. The basis of the belief was:
(a).... all of the matters pleaded in 2.1 to 2.3 hereof;
(b)... the fact that no other Liberal Member of Parliament had approached the plaintiff with any information concerning the issue;
(c)... the fact that the plaintiff had not been advised by any member of the Opposition or any member of the Opposition staff to the effect that they had been contacted by another;
(d)... the fact that the sheets of paper arrived in an unmarked envelope and contained no indication as its sender.
2.5... In or about the third week of March 1995 the plaintiff telephoned the defendant in his Parliamentary office in the evening of a Parliamentary sitting day. The defendant told the plaintiff words to the effect that Brown had had a meeting with Gerard prior to the previous election during which Gerard promised to bankroll the Brown campaign by arranging donations from friendly overseas companies with links to Gerard Industries Pty Ltd.”
By paragraph 4.2 of his written submission, Mr Heywood-Smith asserted that the “relevance of the holding of such documents by the defendant must clearly go to the issue of his capacity to leak them”. Such a submission may or may not go to the materiality of the documentation, but the plaintiff also has to establish that “there are grounds for a belief that [the documentation] may be or may have been in the possession, custody or power of” the defendant.
The defendant’s response to this request for discovery has been that the documentation is not material. It is not clear, but I think the submission of Mr Heywood-Smith was that if there was no other evidence that the documentation may have been in the custody, possession or power of the plaintiff, I should infer from the defendant’s solicitors’ response that the documentation is within the custody, possession or power of the defendant. I do not think such an inference is open to be drawn and for that reason alone this aspect of the plaintiff’s request for further and better discovery should be refused.
There is, in addition, another reason why it should be refused. The stated relevance of the documents as going to the issue of the defendant’s capacity to leak them does not appear to make sense. None of the allegations in paragraphs 2.1, 2.2, 2.4 and 2.5 assert that the defendant has wrongfully disclosed any such material; they merely assert that the plaintiff himself has formed the belief that the plaintiff may have done so. There is no admission in the rejoinder which assists. The plaintiff can only be speculating as to the materiality of this documentation and that is not enough: O Company v M Company [1996] Lloyds LR 347. For those reasons I do not consider that the plaintiff has made out a case in respect of paragraph (i) of his application.
Paragraph 1(ii) of the application is as follows:-
“... all documents relating to the negotiations and subsequent contractual arrangements between the State and Electronic Data Systems (EDS), including documents relating to the proposed location of EDS’s head office in Adelaide and the proposed Delphin Lend Lease Development planned for Technology Park.”
In his affidavit of November 1998 Mr Storer sets out the factual basis for this aspect of the application. The relevant paragraphs are as follows:-
“3..... Paragraphs 2.6, 2.7, 2.7A, 2.8, 2.10, 2.11 and 2.14 of the Second Further More Explicit Reply raise issues pertaining to the defendant’s awareness of, and involvement in, negotiations and correspondence conducted and subsequent contractual arrangements formed between the State and Electronic Data Systems (‘E.D.S.’) during 1995 and 1996, including matters regarding the proposed location of E.D.S.’s head office in Adelaide and the proposed Delphin Lend Lease Development planned for Technology Park.
4...... The plaintiff asserts in paragraph 2 in the Further More Explicit Reply that he held an honest belief that the defendant, or his agent, leaked, or acquiesced in the leaking of, confidential information to the Opposition. The defendant’s capacity to leak confidential information is therefore a relevant matter.”
By paragraph 4.3 of his written submissions, Mr Heywood-Smith asserted that the documents in category (ii) must be discoverable on the same basis as category (i).
The relevant paragraphs in the reply are as follows:-
“2.6.. Kevin Foley MP (‘Foley’) is and was the Member for Hart and a Senior Opposition Shadow Minister at all material times. Foley is and was at all material times in a position of trust in respect of the plaintiff. The plaintiff was entitled to and did place reliance upon information provided to him by Foley. In or about late 1995 and during 1996 Foley advised the plaintiff verbally that the defendant as the then Minister for Infrastructure was providing information to Foley in respect of a major outsourcing contract which Brown had signed with a company known as Electronic Data Systems (EDS). Foley advised the plaintiff verbally that the defendant had told Foley that Brown had signed the EDS deal, had been a weak negotiator, and had not secured the best possible deal for South Australia. Foley so advised the plaintiff in or about late November 1995. During 1996 Opposition strategy and policy meetings were attended by the plaintiff and others and held usually in the morning and early afternoon of each Parliamentary sitting day. At a number of such meetings Foley provided information described by him as coming from a senior Government source. Without identifying its source the substance of the information raised by Foley concerned the matters pleaded in paragraphs 2.7, 2.8, 2.10 and 2.11 hereof and the fourth and fifth sentences of this paragraph. Such information was provided verbally by Foley. Outside of such meetings Foley advised the plaintiff verbally that the defendant was the senior Government source referred to.
2.7... On or about 29 August 1996 the defendant telephoned Foley when Foley was at home. During the course of the conversation the defendant said to Foley ‘Have you checked your mail lately?’. Shortly thereafter Foley inspected his mailbox in Parliament House. In the mailbox, in an unmarked envelope, was part of a document believed to be from the Cabinet Sub-committee for Information Technology. The document was partially cut up to remove marginal and source notes. Foley advised the plaintiff verbally of the circumstances of the receipt of this document on or about 2 September 1996. The plaintiff believed the document to be from a Cabinet sub-committee because the type-set and format appeared to him to be similar to Cabinet sub-committee documents seen by him when he was in Government and Foley concurred with him in that opinion.
2.7ASometime later in September 1996 Foley spoke to the defendant by telephone. The defendant discussed the subject matter of the document referred to in paragraph 2.7 (and in particular a monetary dispute in the sum of $2.1 million appertaining to the EDS contract) and, inter alia, the locating of the EDS Resources Centre at Technology Park or alternatively at a City location.
2.8... On or about 15 October 1996 in the early morning the defendant telephoned Foley at his home. The defendant gave information to Foley of and concerning the issue of the location of EDS’s head office in Adelaide. Such information formed the basis for questioning of Brown in the House that day and related to location of EDS headquarters in the old News building on North Terrace, co-location of the Department of Information Industries in the same building and the proposed Delphin Lend Lease development planned for Technology Park. Foley advised the plaintiff verbally of the circumstances of the receipt of this information shortly after the receipt of the information and on the same day.
...
2.10. On 4 November 1996 the defendant (by his office) telephoned Foley at Foley’s electorate office. Foley was not present and the defendant left a message. Shortly thereafter the defendant did speak with Foley by telephone and the topic of the EDS contract was discussed. On or about 5 November 1996 Foley received an anonymous mail item. The document was a letter dated 14 October 1996 from Brown to Hansen & Yuncken. The letter was embarrassing to Brown. The letter established that Brown had misled Parliament on 15 October 1996 when answering questions put to him by Foley. The document was provided by Foley to the plaintiff shortly thereafter at Parliament House. The plaintiff formed the view that the defendant was the source of the document and was seeking to undermine Brown’s leadership. The plaintiff formed the view that the defendant was the source of the document the moment that Foley provided same to him. The plaintiff formed the view that the defendant was seeking to undermine Brown’s leadership the moment that Foley provided same to him and such view was consistent with the same view held by the plaintiff continuously from the plaintiff’s contact with the defendant as pleaded in 2.1 hereof.
2.11. On or about 6 November 1996 Foley received an unmarked envelope in his Parliamentary mailbox containing cut up sections of what appeared to be a Cabinet submission relating to the EDS North Terrace building. The document disclosed inconsistencies in answers given by Brown to questions in the House on the issue. Shortly thereafter Foley provided the subject document to the plaintiff verbally advising him that the document was from the defendant. The plaintiff thereby formed the belief that the defendant was the source of this document. Foley believed the document was from the defendant because of his continuing contact with the defendant as pleaded in 2.6, 2.7, 2.8 and 2.10 hereof.
...
2.14. On 27 November 1996 Foley asked a number of questions in the Economic and Finance Committee of the State Parliament of senior Government bureaucrats. The questions asked and the answers given had the effect of embarrassing Brown. Material used by Foley included information provided verbally by the defendant to Foley over a long period of time and relating to Brown’s negotiation of the EDS contract, the location of EDS at North Terrace as opposed to Technology Park and the relative costs of the two alternatives. On the same day Foley verbally told the plaintiff that the defendant was the source of much of his information.”

The plaintiff has identified by way of Mr Storer’s affidavit the paragraphs in the reply filed by the plaintiff which raise issues in respect of which the documentation sought is said to be discoverable. The fact that there is an assertion in the pleading that the defendant either as a matter of direct evidence or as a matter of inference has or has had in his custody, possession or power particular documents does not constitute evidence for the purposes of an application for further and better discovery. The reference to the paragraphs in the reply merely set out those paragraphs which raise issues in respect of which the documentation would be discoverable if it is or has been in the custody, possession or power of the defendant. The plaintiff must otherwise establish “that there are grounds for a belief that [the documents] may or may have been in the possession, custody or power of the defendant”. In cases such as Mulley v Manifold, (1959) 103 CLR 341, it is said that the onus may be discharged by reference to uncontentious affidavit material or by reference to the pleadings, but the “reference to the pleadings” means by reference to matters that are admitted on the pleadings or where the document sought by way of further and better discovery is referred to in the pleadings of a party from whom the further and better discovery has been sought.

Mr Storer’s affidavit does not establish the required “grounds for a belief”. But even if I am wrong in that view, the category of documents sought by paragraph 1(ii) is much wider than the documents referred to in the paragraph of the reply referred to in paragraph 3 of Mr Storer’s affidavit and for that reason alone that aspect of the application must fail.
The fact that assertions are made in some of the paragraphs of the reply that Mr Foley informed the plaintiff of certain conversations that he allegedly had with the defendant does not constitute evidence to support the contention that the defendant had documents in his custody, possession or power. At the very least there would have to be an affidavit of the plaintiff and/or Mr Foley deposing as to those assertions. Alternatively, an admission by the defendant in his pleadings could be relied upon, but there is no such admission.
Even if it is assumed that the documentation sought is or has been in the custody, possession or power of the defendant, it is not discoverable by him because, in the paragraphs of the reply relied upon, the truth of the assertions made by the persons with whom either Mr Foley or the plaintiff had a conversation are not the issue. It is the fact that such statements were made to them. In those circumstances I do not see that any underlying documentation has any materiality in relation to the issues in dispute between the parties as defined by the pleadings.
The application by paragraph 1(ii) must be refused.
I have already dealt with category (iii).
As to category (iv), Mr Storer says in his affidavit as follows:-
“6..... In or about mid March 1997 the defendant announced an inquiry into the leaking of the $1.5 billion water and sewage outsourcing contract to Mr Kevin Foley. The defendant’s announcement was reported in the Advertiser in an article entitled ‘Olsen vows to jail the leaker’ on 21 March 1997. A true copy of the article appearing in the Advertiser dated 21 March 1997 is annexed hereto and marked ‘JMS2’.
7...... The results of that inquiry and the manner in which it proceeded are relevant to an issue asserted by the defendant to be relevant in the proceedings between the parties. On a similar basis any documents pertaining to an inquiry into the leaking of documents relative to the EDS contract are documents which, in the possession, custody or control of the defendant, are relevant to the within proceedings and discoverable.”
On the assumption that an enquiry into the leaking of the $1.5 billion water and sewerage outsourcing contract to Mr Foley was held, it seems to me that any documentation obtained by that enquiry which is in the custody, possession or power of the defendant may be material to the question of who was responsible for the wrongful disclosure of the water outsourcing contract to Mr Foley. There is nothing to suggest that the enquiry did not take place, that the enquiry did not obtain documentation relating to the question of who was responsible for the wrongful disclosure of the contract to Mr Foley and that the documentation has never been in the custody, possession or power of the defendant. It is also clear that the defendant has not discovered such documentation and, accordingly, I conclude that there are grounds for a belief that the defendant has not given full discovery to that extent. Nothing has been put before me to suggest that I should exercise the discretion to make an order pursuant to SCR 58.04(e)(i) in favour of the defendant. Accordingly, I propose to direct the defendant to file an affidavit in respect of the category (iv) documents.
For the above reasons, there will be an order that the defendant file and serve an affidavit pursuant to SCR 58.04(e)(i) deposing as to whether or not the documents referred to in paragraph 1(iii) and (iv) of the plaintiff’s application are or have been in his custody, possession or power.

[1999] SASC 237

11 June 1999