Rogers v Hougland

[1991] TASSC 72

Serial No 54/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Rogers v Hougland [1991] TASSC 72; A54/1991

PARTIES:  ROGERS, Margaret Sandra
  v
  HOUGLAND, Mike

FILE NO/S:  57/1988
DELIVERED ON:  12 July 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  A54/1991
Number of paragraphs:  22

Serial No 54/1991
List "A"
File No 57/1988

MARGARET SANDRA ROGERS v MIKE HOUGLAND

REASONS FOR JUDGMENT  ZEEMAN J

12 July 1991

1. By an interlocutory application the defendant seeks orders to the following effect:

1That the plaintiff file an affidavit stating whether she has, or has at any time had in her possession, custody or power, certain specified documents, and if any such document has been, but is not presently, in her possession, custody or power, stating when she parted with the same and what has become of the same.

2That the plaintiff make serve and file a list of documents verified by affidavit.

3That the plaintiff produce for inspection by the defendant and his solicitors all the documents specified for the purposes of the first order sought.

4That in aid of such inspection the plaintiff make such requests and do such things as may be reasonably required to obtain relevant documents from the Department of Social Security by way of a request pursuant to the provisions of the Freedom of Information Act 1982 (Cth).

5That in further aid of such inspection, the plaintiff provide to the defendant's solicitors authority in writing to the Department of Social Security allowing those solicitors to inspect such of the documents as are held by that Department and to do all such other things as may reasonably be necessary to enable those solicitors to make a successful application for access to such documents under the Freedom of Information Act.

1. The plaintiff's action is one for damages suffered as a result of personal injuries. The application, which was filed on 16 May 1991, is made at a very late stage in the proceedings. The parties filed a certificate of readiness on 8 March 1990. Subsequent to the filing of that certificate, a number of pretrial conferences were conducted before a judge. At the time the certificate was filed, the plaintiff had delivered particulars of damages claimed, in what has become the usual form, whereby she provided full particulars of special damages claimed and of all heads of general damage. Those particulars did not suggest that the plaintiff was making any claim for loss of earning capacity whether past or future. As a result of discussions during the course of pretrial conferences, the plaintiff delivered amended particulars of the damages claimed by her on 13 November 1990. Those particulars, for the first time, suggested that the plaintiff was making a claim for damages suffered as a result of a loss of her earning capacity. The documents, the particular subject of the first of the orders sought, are of such a nature that if they are relevant to any issue which arises in this action, then they are relevant to the plaintiff's claim to have suffered damage as a result of a loss of earning capacity. For that reason, the making of an application for the discovery of specific documents and consequential and related orders at a late stage is entirely understandable. As a result, if otherwise it is appropriate to make any of the orders sought, I do not consider it appropriate to exercise any discretion which I might have to decline to make an order because of delay on the part of the defendant although there has been some delay beyond that necessarily occasioned by the way in which the plaintiff has conducted her case.

1. It is convenient that I first deal with the second of the orders sought. It appears that the plaintiff had not made discovery of documents in any way prior to a pretrial conference conducted on 21 December 1990. On that occasion, the judge conducting the conference ordered that the action could be listed for trial provided that there was joint certification as to a number of matters, including "that the plaintiff has informally discovered any discoverable documents not previously discovered". As a result of that order, the plaintiff made a list of documents in the form prescribed by the rules, save and except that it did not contain a second schedule, notwithstanding the fact that the body of the document referred to a second schedule. The list was not verified by affidavit, and there was of course no requirement that it be so verified. It made no reference to any documents which the plaintiff might have made and lodged with either the Department of Social Security or the Australian Taxation Office. Such documents might have been expected to have been referred to in a second schedule had the list contained such a schedule. The evidence before me in the form of the two affidavits of Mr Hudson, together with what is disclosed by the particulars of the plaintiff's damages, satisfy me that from time to time the plaintiff lodged documents with the Department of Social Security in which she stated particulars of income earned by her from time to time. The particulars suggest that the plaintiff may have lodged income tax returns with the Australian Taxation Office insofar as she was under an obligation to do so having earned income which was taxable. Both classes of documents would relate to relevant periods of time. I reject the submission that those documents would not be discoverable in any event upon the basis that they are not relevant to any issue. What sums the plaintiff earned at various times is plainly relevant to the issue of determining her loss of earning capacity both past and future. Contemporaneous statements made by her to various Commonwealth instrumentalities exercising statutory powers when in the exercise of such powers an ascertainment of such income was relevant are documents which are relevant to that issue and discoverable.

1. There seems to be a misunderstanding as to what is required by way of making discovery. A mere request for discovery (and the informal discovery referred to by the judge conducting the pretrial conference cannot amount to more than that) does not require the making of any list. Discovery is completed by producing to the other party for his inspection all discoverable documents in respect of which privilege is not claimed (O.33, r13(1)). It is only if the other party so requires that a list of those documents is required, which in turn is required to be in the form prescribed by the rules, and which form requires the disclosure of documents other than those capable of being produced. Even if a list is required, there is no requirement that that list be verified by affidavit unless notice to that effect is given pursuant to O33, r13(8). No such requirement was made prior to the filing of the certificate of readiness as is a requirement of the rule, but for the reasons I have expressed, this ought not to prevent the making of an order if otherwise appropriate.

1. Had the plaintiff made a list of documents which included a Second Schedule, the likelihood is that documents of the descriptions I have mentioned would have been disclosed in that schedule. To the extent that they exist, they ought to be so disclosed in any list of documents made by the plaintiff for the purposes of this action. The initial absence of any assertion that the plaintiff had lost any earning capacity makes the defendant's apparent early indifference to the plaintiff making discovery understandable. The issues now raised make discovery an important matter. I consider it appropriate that the plaintiff now be required to make a list of documents in the form provided for by O33, r16, and that that list be verified by affidavit. I do not consider it necessary to make any order as to the specific discovery of particular documents. I have expressed my view that documents of certain descriptions are discoverable, and it may be anticipated that the list of documents to be delivered by the plaintiff will disclose the existence of such documents. To impose upon the plaintiff a separate requirement to make an affidavit as to those documents would add needless expense. However, rather than dismissing that application for relief, I will adjourn its further consideration sine die, so that if it transpires that documents of that type are not disclosed in the plaintiff's list of documents, the matter can come back before me for further consideration.

1. It may be assumed that the mere disclosure of eg a declaration as to income made to the Department of Social Security in the Second Schedule to the plaintiff's list of documents will do little to assist the defendant. What the defendant is seeking is the ability to look at those documents. It may be assumed that those documents will be in the possession of the relevant Government instrumentality. The defendant seeks orders so that per medium of the plaintiff, he may have access to specified documents by way of obtaining copies and/or looking at the documents. Whilst the orders sought by the application relate to Department of Social Security documents, the defendant argued for orders in the terms of those numbered 3, 4 and 5 at the commencement of these reasons as to documents held by that department and by the Australian Taxation Office. Whilst I consider the making of the first of the orders sought to be presently unnecessary I need to consider the applications for inspection and for relief in aid of inspection.

1. Principally, the defendant is seeking to achieve inspection through the use of the provisions of the Freedom of Information Act. By s11 of that Act, every person has what is expressed to be a legally enforceable right to obtain access in accordance with the Act to a document of an agency other than an exempt document but subject to the Act. Both the Department of Social Security and the Australian Taxation Office are agencies for the purposes of that section. Section 20(1) provides that access to a document may be given in a number of different forms, including a reasonable opportunity to inspect the document and the provision of a copy of the document. An applicant may request access in a particular form, and, subject to what appear to be irrelevant exceptions, an applicant for access who requests access in a particular form shall be given access in that form. Section 41 of the Act deals with documents affecting personal privacy. A document which involves the unreasonable disclosure of information relating to the personal affairs of a person (but for present purposes other than the applicant) is an exempt document for the purposes of s11. It might therefore be assumed that if the defendant were to apply for access to the relevant documents, it would have no right to such access, the documents being exempt documents so far as an application by the defendant is concerned. On the other hand, s41 would not operate so as to make the documents exempt documents in relation to an application by the plaintiff. Whilst it does not appear as though there is any other provision of the Act which would operate in an obvious way so as to result in relevant documents being exempt documents, so that the plaintiff would not have a legally enforceable right to obtain access to them, the prima facie right conferred by s11 is qualified by many other provisions which may make a document an exempt document or which may otherwise affect the right to access. Nevertheless it appears from the Act that an application by the plaintiff for copies of the relevant documents, were she to make an application under the Act, would have a very substantial chance of being successful. An application by the defendant without more would have no prospects of success. If the plaintiff were to provide express consent to the defendant having access to the relevant documents it might result in the defendant obtaining such access as in those circumstances it might be thought that access would not constitute "unreasonable disclosure" as that expression is used in s41(1). I do not consider that s19(4)(c) of the Social Security Act 1947 adds a great deal to the matter. It confers no right upon any person, but merely ameliorates the general secrecy provisions contained in s19.

1. The primary submission made by counsel for the defendant was that documents in the possession of an agency as to which the plaintiff has a legally enforceable right to obtain access by virtue of the provisions of the Freedom of Information Act are documents which are within the "power" of the plaintiff for the purposes of Division II of O33, so that it is incumbent upon the plaintiff to allow inspection, calling in aid, if necessary, the provisions of the Freedom of Information Act. The meaning of "power" was considered by the House of Lords in Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627. Lord Diplock, at p635, said that:

"... the expression 'power' must ... mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future."

1. With respect, I would adopt that expression of principle (in which all other members of the House of Lords concurred) as correctly stating the principle to be applied in this case. Reference ought to be had to s38 of the Freedom of Information Act, but only to establish its irrelevance for present purposes. There is not in existence any enactment containing a prohibition of the type referred to in that subsection. General secrecy provisions do not fall into that category, and for that proposition, I adopt what was said by Bowen CJ and Fisher J in their joint judgment in News Corporation Ltd v National Companies & Securities Commission (1984) 52 ALR 277, at pp281–282. That decision has been followed on a number of occasions. In any event, by virtue of subs2, s38 has no application in relation to a document insofar as it contains information relating to the personal affairs of the person requesting access. All the documents sought to be produced, so far as relevant, relate to the plaintiff's personal affairs.

1. Primarily the defendant relied upon the judgment of Marks J in Palmdale Insurance Ltd v L Grollo & Co Pty Ltd [1987] VR 113. In the course of his judgment, his Honour appears to have placed at least some tentative reliance upon a dictum of Lyndhurst LC in Taylor v Rundell (1841) Cr & Ph 104 at p113, 41 ER 429 at p433. The nature of the proceedings in that case must be borne in mind. It was determined prior to the enactment of the Common Law Procedure Act 1854. Prior to that Act, common law courts had no power to compel discovery of documents. The power to compel discovery was vested exclusively in the Courts of Chancery so that a party to a common law action seeking discovery needed to file a bill of discovery in equity. Courts of equity had the power to grant injunctions to stay proceedings in the other court pending discovery being made. It was such a bill of discovery which was the subject of Taylor v Rundell (supra). It has been suggested that the powers in relation to discovery of common law courts, first conferred in England by the Common Law Procedure Act are not entirely commensurate with the former jurisdiction exercised by courts of equity (The British Empire Shipping Company Ltd v Somes (1857) 3 K & J 433, 69 ER 1179). I do not consider there to be any justification for using the dicta appearing in that case in determining whether the documents sought to be produced in this case are within the power of the plaintiff having regard to the nature of the proceedings in that case. Primarily the decision in Palmdale Insurance Ltd v L Grollo & Co Pty Ltd (supra) depended upon particular rules applying to cases in the commercial list of the Supreme Court of Victoria. In particular, his Honour relied upon the power conferred by ChII, O14, r5(3) which provided:

"Upon the hearing or further hearing of a summons for directions the judge in charge may give such directions with respect to any interlocutory step or proceeding and otherwise as in his opinion are expedient for the just and speedy determination of the matters in issue in the action."

1. His Honour relied upon that rule to justify an order requiring the defendant to provide to the plaintiff inspection of certain documents in the possession of certain Commonwealth Government Departments, access to which might be assumed to have been available by means of a request under the Freedom of Information Act. He described his directions as "somewhat unusual in nature", but being directions which increased the chance of "just and speedy determination of the matters in issue" in the words of r5(3).

1. Counsel for the defendant submitted that the Victorian r5(3) finds its equivalent in the Rules of the Supreme Court, O32A, r6(2). Whether that rule confers the breadth of power which Marks J held was conferred by the Victorian r5(3) may be doubted. I observe that the proceedings before me are not in the nature of being a pretrial conference, so that that in itself may make r6(2) irrelevant. In any event, I consider that r6(2) does not confer upon a judge any power not otherwise exercisable by him. It does no more than to provide that the exercise of that power is not dependant upon the jurisdiction having been invoked in the manner which otherwise may be thought to be required by the rules.

1. One thing is clear from an examination of the judgment in Palmdale Insurance Ltd v L Grollo & Co Pty Ltd (supra). It does not assist in determining whether a document to which a party has legally enforceable right of access under the Freedom of Information Act is a document within the power of that party for the purposes of the Rules of the Supreme Court. It was not held in that case that such a document was within the power of the relevant party within the meaning of the equivalent provisions in Ch 1 of the Victorian Rules of the Supreme Court, the source of jurisdiction for the order made in that case having been found in a special rule relating to commercial cases which special rule has no equivalent in the Rules of the Supreme Court.

1. The other case to which reference ought to be made is Theodore v Australian Postal Commission [1988] VR 272. That case was concerned with discovery by way of list of documents and not with the inspection of documents. The plaintiff's action was one for damages for personal injury suffered by him in the course of his employment with the defendant. He had previously made a claim for compensation arising out of those injuries pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1975. The defendant asserted that the plaintiff ought to discover the file held by the Commissioner of Employees Compensation relating to the plaintiff's claim for compensation. One issue in that case was whether all of the documents in that file were discoverable by the plaintiff merely because they were all within his power in the sense that he could obtain access pursuant to the provisions of the Freedom of Information Act, or whether only those documents which were originally in the possession of the plaintiff but later provided by him to the Commissioner, or documents sent to the plaintiff by the Commissioner ought to be discovered. It was argued that all the documents on the file, even if the plaintiff had never seen them and had at no time had them in his possession, were discoverable because they were within his power in the sense that he had an enforceable right of access. In dealing with that proposition and the proposition that the documents were in the power of the plaintiff because he was entitled to copies of them if he were dissatisfied with a determination of the Commissioner of Employees Compensation, Murphy J said, at p276:

   "Merely because the plaintiff could have called upon the Commissioner to provide, if dissatisfied with the determination, a copy of the defendant's documents filed in opposition to any such application, does not, in my opinion, mean that such documents were at any time in his power. Unless he did in fact so call for them (s 61(2)) the plaintiff would not even be aware what such documents were. But if he did call for them, and did receive them then, of course, they would be discoverable.

   As to the effect of the Freedom of Information Act 1982 on the issue whether documents thought available to be obtained on proceedings taken under that Act are, before any such proceedings are taken, in the 'power' of a party, I would not myself, in the absence of precedent binding me, incline to the view that such documents are discoverable – that is to say, unless and until such proceedings are taken and the documents are obtained."

1. At p277, his Honour said:

   "The phrase in his 'possession, custody or power' looks to the present and the past and not to the future. The essence of this view lies in the right being 'presently enforceable'. It is not to the point that the party could take steps that, if successful, will or may enable him to acquire such a right in the future."

2. Is the right of access conferred by s11 of the Freedom of Information Act a presently enforceable right? Murphy J, in the passage to which I have just referred, thought not. The section talks of "a legally enforceable right" and Murphy J appears to have proceeded upon the basis that such a right did not amount to a presently enforceable right until such time as appropriate steps had been taken successfully under the Freedom of Information Act.

1. A relevant question was considered by Beaumont J in Harris v Australian Broadcasting Commission (1983) 50 ALR 551. The immediate question requiring determination was whether a decision by an agency to make available a document pursuant to the provisions of the Freedom of Information Act is a "decision" within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In dealing with this submission, his Honour said, at p557:

   "Although no general objection is taken to jurisdiction, the respondents submit that there is here no 'decision' to be reviewed for the purposes of the Administrative Decisions (Judicial Review) Act 1977. They argue that, since s 11 creates a statutory right of access to the document in question, no 'decision' to make it available is involved: in this sense, it is said, the Act has a self–executing operation so that the public agency involved has no substantive role to play and thus no 'decision' to make.

   In my opinion, the submission takes too restricted a view of the position. Although s 11 confers a right to access, its introductory words, 'subject to this Act', make it clear that this is so prima facie only: the right is subject to provisions such as s 21 (deferment) and to the exemption provisions contained in Pt IV. In some cases, a decision to claim deferment or exemption may well need to be made. This is reflected in the provisions of ss 19 and 27 which speak, in terms, of a 'decision' made on a request for access. Further, the provisions of Pt VI dealing with 'review of decisions' by the Administrative Appeals Tribunal in certain cases, proceed upon the assumption that a decision is made on a request for access."

2. Underlying the proposition rejected by his Honour was the proposition, also rejected, that the Freedom of Information Act prescribed a right to obtain access in accordance with the provisions of that Act, leaving no room for any decision, it being a matter of law whether or not there was such a right of access by a specific person to a particular document. In the same context, Murphy J observed in Theodore v Australian Postal Commission (supra) at p279, as follows:

   "Every request for access to documents under the Act is subject to a decision in respect thereof by the responsible Minister or the principal officer of the agency or by some officer appropriately delegated (see s 23). There is no evidence in the present case as to what the decision might be, and the Act is so circumscribed that I do not think it possible to say that the files referred to would automatically be made available or be copied or that the plaintiff has a presently enforceable right to them."

   It must be borne in mind that that case was concerned with discovery and not production. His Honour's conclusions were that those documents which had never been in the physical possession of the plaintiff but which were on the plaintiff's file having emanated from the defendant or some third party, were not required to be discovered in the sense of being listed in a list of documents, those documents not having been in the possession, custody or power of the plaintiff notwithstanding the application of the provisions of s11 of the Freedom of Information Act thereto.

1. Having determined that those documents which did emanate from the plaintiff and which therefore were at some time in the plaintiff's possession, ought to be discovered in the list of documents, his Honour left open the question as to whether or not inspection could be ordered. His Honour left open the possibility that the plaintiff might be ordered to take steps to obtain some of such documents for inspection pursuant to the Victorian r29.09 but at the same time expressed doubts as to whether such an order would be appropriate. I consider those doubts to be well founded. Consonantly with the observations appearing in Theodore v Australian Postal Commission (supra) and Harris v Australian Broadcasting Commission (supra), I conclude that the relevant documents are not presently in the power of the plaintiff merely by the operation of the provisions of the Freedom of Information Act.

1. I turn to an examination of Division II of O33 of the Rules of the Supreme Court. The general obligation to make discovery of documents is contained in r12, but it is expressed to be subject to and in accordance with the provisions of Division II. The obligation is expressed to relate to "the documents that are or have been in their possession, custody or power relating to matters in question in the action." Rule 13 prima facie requires that discovery be made by production and only requires a list if the other party so requires. Plainly there cannot be production of documents that have been, but no longer are, in the possession, custody or power of a party, so it must follow that disclosure of such documents is not required unless a list of documents is required. Any list is required to be in the prescribed form, which requires the separate disclosure in one schedule of documents presently in the possession, custody or power of the person making the list, divided into those documents in respect of which privilege is not claimed and those in respect of which it is claimed, and in another schedule of documents which formerly were, but no longer are, in the possession, custody or power of the person making the list. Rule 21, on the face of it, entitles another party to inspect all documents referred to in the list (other than those in respect of which privilege is claimed) and to take copies thereof. That rule does not distinguish between those documents which are, and those which formerly were but no longer are, in the possession, custody or power of the person making the list. The duty to permit inspection may be enforced by an order under r23(1). A further power to order inspection is contained in r23(2), but that power is expressly limited to documents in the possession, custody or power of the relevant party. It may be that a similar limitation ought to be read into r21 and consequentially r23(1). However, the present applications relating to inspection can only be supported by reference to r23(2), there being no present list of documents which discloses the documents which the defendant seeks to inspect. When there is a further list of documents in accordance with the order I propose making, then the ambit of the power to require or order inspection under r21 and r23(1) may require further consideration, with particular reference to whether those rules are impliedly limited in their operation to documents in the possession, custody or power of the relevant party.

1. For the reasons I have expressed the documents of which inspection is sought are not documents in the possession, custody or power of the plaintiff. Accordingly, it is not appropriate to make an order for their inspection under O33, r23(2). There is no other proper basis upon which to make such an order.

1. It follows that I will order that the plaintiff make, file and serve a list of documents in the form required by O33, and that that list be verified by affidavit. I will hear the parties further as to time within which that order is to be complied with. I adjourn the application for specific discovery contained in paragraph 1 of the application filed 16 May 1991 sine die. Otherwise, I decline to make the orders sought by the defendant.