Rann v Olsen No. Scgrg-97-913 Judgment No. S6832

RANN V OLSEN

ACTION NO 913 OF 1997

[1998] SASC S6832

Judge Burley

By application dated 8 May 1998 the defendant seeks the following order:-
“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 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:-
“16.2......... During 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.’
16.3.......... During 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.
Mr Whitington QC, counsel for the defendant, maintained that the documents sought by way of further and better discovery related to that part of the defendant’s case where he said that he did not make the wrongful disclosures as alleged by the plaintiff in his evidence before the parliamentary committee and that the plaintiff could not have held an honest belief that the defendant had done so.
The issue thus joined between the parties on this application is whether or not the documentation sought by the defendant is discoverable according to whatever test is applicable to the discoverability of documents. Mr Heywood-Smith referred me to paragraph 4.27 at page 100 of “Discovery”, Matthews and Malek, 1992 edition, which is as follows:-
“In libel actions relevance is defined strictly by reference to the pleadings and especially any particulars provided. When particulars have been served which limit a particular issue, then discovery on that issue is limited to the matters raised in the particulars. Hence, where in a libel action the defendant has relied on the plea of justification and gives particulars of specific instances, the defendant may only obtain discovery relating to those matters and accordingly this qualifies the general test of ‘train of enquiry’ embodied in Peruvian Guano.”
The case referred to at the conclusion of the passage just referred to is Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55.
The learned authors in support of that proposition, refer to a number of cases including Yorkshire Provident Life Assurance Co v Gilbert and Rivington [1895] 2 QB 148. In that case an action was brought by a life insurance company against the defendants for publishing a statement that the plaintiff’s habitually refused to pay legal claims on their policies. The defendants pleaded justification, and delivered particulars of 30 claims which, they alleged, the plaintiff had refused to pay. It was held that the defendants’ entitlement to discovery was limited to the 30 claims referred to in the particulars. Mr Heywood-Smith argued that on the authority of that case, the defendant was limited to the particulars advanced by the plaintiff in support of his contention that he held an honest belief that the defendant was responsible for the EDS disclosures.
If the principle advanced in that case is applicable to the circumstances of this application, and if the plaintiff is correct in his contention that, because his particulars do not include a reference to the E & WS disclosures, the only basis upon which the defendant would be able to obtain the discovery sought would be to plead in the rejoinder that by reason of having seen the documentation forming part of the E & WS disclosures, the plaintiff could not have held the honest belief referred to in paragraph 2 of the further more explicit reply. It is probable that the defendant could not include such an assertion in his rejoinder because, not being aware of the content of the documentation included in the E & WS disclosures, he could not provide particulars to substantiate that assertion.
It seems to me that the plaintiff’s argument overlooks two things: first, the Yorkshire Provident case involved a request for discovery which went beyond the particulars advanced by the defendant who was the applicant for further and better discovery, whereas in this case, the request for discovery is said to go beyond matters advanced by the respondent to the application, the plaintiff, in furtherance of his case that he held an honest belief in relation to the relevant matters. To that extent, if the plaintiff is able to rely upon the Yorkshire Provident case to defeat the defendant’s request for further and better discovery, he is setting the parameters of discovery by reference to his own particulars. To that extent he would be placed in the position of being judge of his own cause, at least so far as that involves setting the parameters for discovery. Second, the plaintiff’s reliance upon the Yorkshire Provident case overlooks the contention of the defendant that discovery of the documentation consisting of the E & WS disclosures, is material to the defendant’s contention that he was not responsible for the EDS disclosures.
In my view, the Yorkshire Provident case is not authority for the proposition advanced by the plaintiff. The effect of Mr Heywood-Smith’s submission is that discovery must be confined, for the purposes of this application, to the particulars advanced by the plaintiff in paragraph 2 of his reply which are said to provide the basis for his honest belief. The principle approved by the Court of Appeal in the Yorkshire Provident case is no more than that limits of discovery are determined by reference to the pleadings. The case does not support the proposition that the limits, for the purposes of this application, are set by the particulars given by the plaintiff because, as I said, that ignores the defendant’s contention that the documentation comprised in the E & WS disclosures may be material to that part of the defendant’s case where he says that he was not responsible for the EDS disclosures.
Mr Heywood-Smith also relied on the O Company v M Company [1996] 2 Lloyd’s LR 347. I do not think that case supports his contention that the parameters of discovery are to be set by reference to the particulars provided by the plaintiff, but it is a case, among many others, which contains a helpful exposition of how the parameters for discovery are to be set.
Colman J referred to counsel’s reliance upon Compagnie Financiere du Pacifique v Peruvian Guano Co (supra). His Lordship said (at 350):-
“Whether a class of documents as a whole is relevant for discovery purposes must depend upon what information it is reasonable to suppose the documents of the class contain and whether such information may enable the plaintiffs to advance their own case or damage that of the shipowners. The ‘case’ of the plaintiffs or the defendants respectively can be defined only by looking at the pleadings. It must be defined by reference to the plaintiffs’ pleaded claim in its general sense, as distinct from its detailed exposition and by the defendants’ pleaded defence in the sense of its general refutation of the plaintiffs’ claim. What matters for discovery purposes is the claim and defence to it in the broadest sense and not to the detailed particulars of either claim or defence. ...
The principle [in the Peruvian Guano case] was never intended to justify demands for disclosure of documents at the far end of the spectrum of materiality which on the face of it were unrelated to the pleaded case of the plaintiff or defendant and which were required for purely speculative investigation. ...
On the contrary, the document or class of documents must be shown by the applicant to offer a real probability of evidential materiality in the sense that it must be a document or class of documents which in the ordinary way can be expected to yield information of substantial evidential materiality to the pleaded claim and the defence to it in the broad sense which I have explained. If the document or class cannot be demonstrated to be clearly connected to issues which have already been raised on the pleadings or which would in the ordinary way be expected to be raised in the course of the proceedings, if sufficient information were available, the application should be dismissed.”
The requirement that the application for further and better discovery not be speculative is linked to what I have previously referred to as (I assume) the defendant’s inability to plead with the appropriate particularity in its rejoinder that receipt of the documentation comprised in the E & WS disclosures affected the question of whether or not the plaintiff had an honest belief that the defendant was responsible for the EDS disclosures. The question must be asked, if the defendant cannot plead the issue, is it speculative to seek discovery of documentation which may (not will) enable him so to plead?
I do not think that the defendant’s application is speculative because it does not solely depend upon whether or not the defendant is able to plead additional matters in the rejoinder as referred to by me. It includes consideration of the defendant’s contention that the discovery of the documentation comprised within the E & WS disclosures may lead to a train of enquiry material to the defendant’s case that he was not responsible for the EDS disclosures. As such, I do not consider that the application is speculative. The sequence of the disclosures cannot be overlooked. One disclosure took place before the defendant became Premier and the other one took place afterwards. According to the plaintiff’s evidence to the parliamentary committee, it was the Opposition’s view that the EDS disclosures were effected by the defendant so as to undermine the then Premier, Mr Brown. Clearly the same argument could not be advanced to disclosures that took place after the defendant became Premier. To that extent, if it is assumed that there is at least a possibility that the one person was responsible for the wrongful disclosure of both the EDS documents and the water contract documents, it would be highly unlikely that that person was the defendant. In my view there is a real possibility that the water contract documentation, both as to its contents and provenance, may provide evidence which is material to the question of whether or not the defendant was responsible for the wrongful disclosure of the EDS documentation.
It may also be material to the question of whether or not the plaintiff held an honest belief that the defendant was responsible for the disclosure of the EDS documentation. This is so notwithstanding the nature of the particulars provided in paragraph 2 of the plaintiff’s further more explicit reply. It seems to me that it will be a very live issue as to whether or not the disclosure of the water contract documentation after the defendant became Premier casts doubt on whether or not the defendant could be said to be responsible for the disclosure of the EDS documentation.
The doubt must be cast because the defendant could not be said to have an interest in disclosing the water contract documentation after he became Premier. It seems to me that the question of whether, and if so to what extent, the plaintiff took into account the subsequent disclosure of the water documentation in arriving at the honest belief he asserted he held when giving evidence before the parliamentary committee will, I anticipate, be a hotly debated issue at trial.
For the above reasons I have formed the view that the defendant has established that the documentation sought by this application is discoverable by the plaintiff.
It is not in dispute that the plaintiff has, or has had, documentation coming within the description of the order sought as set out at the commencement of these reasons. Given that I have concluded that such documentation is discoverable, I propose to order that the plaintiff file and serve the appropriate affidavit pursuant to SCR 58.04(e)(i). I will hear counsel as to costs.

[1998] SASC 6832

4 September 1998