WILLIAMS v Grainger
[2000] WASC 89
•7 APRIL 2000
WILLIAMS & ANOR -v- GRAINGER & ORS [2000] WASC 89
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 89 | |
| Case No: | CIV:1171/2000 | 5 APRIL 2000 | |
| Coram: | MASTER SANDERSON | 7/04/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Orders made requiring identification of documents by list or otherwise and permitting person inspecting documents to take copies | ||
| PDF Version |
| Parties: | RUTH EILEEN WILLIAMS MARK CURTIS WILLIAMS GEOFFREY ORMOND GRAINGER JOAN HARRINGTON GRAINGER WESFARMERS DALGETY REAL ESTATE (WA) PTY LTD (ACN 009 238 993) WESFARMERS DALGETY LTD (ACN 008 743 217) |
Catchwords: | Practice and procedure Application of O 26 r 8A(2) to documents produced under O 26 r 8(2) Right of party inspecting documents to take photocopies at time of inspection Right to payment for photocopies |
Legislation: | Rules of the Supreme Court, O 26, r 8 and r 8A |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
MARK CURTIS WILLIAMS
Second Plaintiff
AND
GEOFFREY ORMOND GRAINGER
First Defendant
JOAN HARRINGTON GRAINGER
Second Defendant
WESFARMERS DALGETY REAL ESTATE (WA) PTY LTD (ACN 009 238 993)
WESFARMERS DALGETY LTD (ACN 008 743 217)
Third Defendants
Catchwords:
Practice and procedure - Application of O 26 r 8A(2) to documents produced under O 26 r 8(2) - Right of party inspecting documents to take photocopies at time of inspection - Right to payment for photocopies
(Page 2)L
egislation:
Rules of the Supreme Court, O 26, r 8 and r 8A
Result:
Orders made requiring identification of documents by list or otherwise and permitting person inspecting documents to take copies
Representation:
Counsel:
First Plaintiff : Mr M A R Blundell
Second Plaintiff : Mr M A R Blundell
First Defendant : Mr I A Morison
Second Defendant : Mr I A Morison
Third Defendants : No appearance
Solicitors:
First Plaintiff : Solomon Brothers
Second Plaintiff : Solomon Brothers
First Defendant : Martin de Haas
Second Defendant : Martin de Haas
Third Defendants : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)1
MASTER SANDERSON: This is the first and second defendants' application in relation to the manner in which documents discovered by the plaintiffs are to be produced. Because of the unusual nature of the application and the relief sought, I will quote the chamber summons in full:
- "1. Pursuant to Order 26 rule 8(3), the Plaintiffs make available at the office of their solicitors the following documents for inspection and copying by the Solicitors to the First and Second Defendants: documents ('the Documents') defined or referred to in the Plaintiffs' Statement of Claim as:
1.1 'Article' in paragraph 8.1A,
1.2 'advertisements' in paragraph 8.4A,
1.3 'finance arrangements' in paragraphs 14.4 and 14.5,
1.4 'Soil Conservation Information' in paragraph 29.1B,
1.5 'written ... statements' in 32C, and
1.6 'motion' in paragraph 32C.
2. Pursuant to Order 26 rule 8A(1)(a) and (b), the Plaintiffs:
2.1 group the Documents according to the topic or allegation in issue as pleaded by the Plaintiffs; and
2.2 identify the Documents so that each document can be readily retrieved at a later date.
3. Pursuant to Order 26 rule 8A(2), the Plaintiffs do provide the solicitors for the First and Second Defendants with access to photo copying facilities to allow the solicitors for the First and Second Defendants to copy the Documents at the time of the inspection.
4. The Plaintiffs pay the First and Second Defendants costs of this application to be taxed."
(Page 4)2
The facts giving rise to this application can be summarised in the following way. The plaintiffs' statement of claim made reference to the documents referred to in par 1.1 through to 1.6 of the chamber summons. The first and second defendants' solicitors wish to inspect the documents referred to in the plaintiffs' statement of claim and they therefore issued the appropriate notice under O 26 r 8(2). At all material times Mark Gregory Clay ("Clay"), a solicitor and an associate of the firm acting for the first and second defendants, represented the first and second defendants' solicitors. This notice was given by facsimile transmission sent by the first and second defendants' solicitors to the plaintiffs' solicitors on 3 March 2000. A copy of this facsimile appears as Annexure "MGC1" to the affidavit of Clay, sworn 21 March 2000. By letter dated 10 March 2000 the plaintiffs' solicitors advised the first and second defendants' solicitors that the documents referred to in their facsimile would be available for inspection at the solicitor's office. (See page 5.1 of Clay's affidavit.) By facsimile dated 15 March 2000 the first and second defendants' solicitors, through Clay, advised that he (Clay) would attend the plaintiffs' solicitor's office later that morning to inspect the documents. Up to this point there is no dispute between the parties as to what occurred, nor is there any suggestion that the actions of either party were inappropriate.
3 At about 11.30 am on 15 March Clay attended at the offices of the plaintiffs' solicitors. He was provided with a bundle of documents which were said to be the documents he had come to inspect. He thereafter had discussions with Jeremy Christopher Giles ("Giles"), a solicitor employed by the firm representing the plaintiffs. Summarising the correspondence which subsequently passed between the solicitors, it seems that Clay raised two matters. First, he said that the documents that were provided to him were not identified or indexed by number, contrary to the provisions of the rules. Secondly, Clay was refused access to the plaintiffs' solicitor's photocopier so that he personally could make copies of the documents. What Giles offered was three options. Clay could either copy the documents manually, he could return with his own photocopier and copy the documents or he could indicate to the plaintiffs' solicitors which documents he wanted copied and they would be copied by the plaintiffs' solicitors and provided to the first and second defendants' solicitors in due course. Clay regarded none of these alternatives as acceptable. It would appear that there were some exchanges between the parties as to their respective positions. There is some dispute as to precisely what occurred. For present purposes, the nature of these exchanges is irrelevant.
(Page 5)4
In making the application, the first and second defendants rely upon the provisions of O 26 r 8A. That rule, which is headed "Procedure on Discovery", is in the following terms:
- "8A (1) Documents delivered or produced under these Rules are -
(a) to be -
(i) in bundles, files, folders or receptacles; and either
(ii) grouped according to topic, class, category, allegation in issue or otherwise; or
(iii) in an order or sequence,
making the documents readily accessible to and capable of convenient inspection by the party to whom they are delivered or produced; and
(b) to be so identified or indexed by number, description or otherwise as to enable particular documents to be readily retrieved on later occasions.
(2) The party producing the documents must provide facilities for inspection and copying of the documents and make available a person able to -
(a) explain the arrangements used; and
(b) assist in locating and identifying particular documents or classes of documents.
... "
(Page 6)p
ointed out, r 8A(2)(a) seems to anticipate that there is a duty on the solicitor whose premises the documents are being inspected to facilitate copying of those documents. A person inspecting the documents and wishing to take copies of them is not to be left stranded by the mysteries of photocopying technology.
6 In response, counsel for the plaintiffs submitted that the documents in this case were relatively straightforward and could easily be characterised without the need for any list or any particular identification. Further, counsel submitted that, properly construed, r 8(2) was not covered by r 8A. Rule 8A dealt with the procedure on discovery, whereas r 8(2) dealt with documents which were to be considered as part of the pleadings and available to the solicitors for the first and second defendants on that basis. In relation to the photocopying of documents, counsel for the plaintiffs made the point that it was the almost universal practice in this State for a party wishing to obtain copies of documents to identify these documents to the other party and for that party to provide copies in due course. The parties generally negotiated an appropriate price per photocopy which was paid by the requesting party on provision of the copies.
7 Counsel for the plaintiffs also made submissions in relation to the threat to legal professional privilege which might be occasioned by providing to the first and second defendants' solicitors unrestricted access to photocopying facilities. To this end, counsel tendered an affidavit of Giles, sworn 5 April 2000. Counsel for the first and second defendants took objection to the third paragraph of this affidavit. This paragraph refers to the fact that Clay is suing the solicitors acting for the plaintiffs in his own right and in proceedings which have nothing to do with the present proceedings. I am prepared to allow Giles' affidavit to stand. It seems to me to cover matters which are relevant to this application.
8 Giles' affidavit can be summarised in the following way. He says that the plaintiffs' solicitors have a room in which all photocopying facilities are located and all faxes are sent and received, all shredding of documents, including confidential documents, takes place and where documents of a confidential nature are spread out on work benches to allow them to be dealt with in various ways. On this basis, it is said that to give Clay unrestricted access to the photocopying equipment risked compromising in some way legal professional privilege, either in relation to this matter or in relation to other matters. The plaintiffs' solicitors do not suggest that this compromise would have occurred had Clay been given unrestricted access to photocopying facilities on 15 March. Nor do
(Page 7)t
hey suggest that it would be impossible to secure the photocopying room so that Clay would not be exposed to any confidential material. It is not clear from Giles' affidavit what disruption would be occasioned to the plaintiffs' solicitors, if any, by making the photocopying room secure.
9 During the course of argument a bundle of documents, being the documents in question, was shown to me by counsel for the first and second defendants. However, I do not think this application can be resolved by looking at the documents produced in this case. Rather, there is a wider question of principle involved. Does r 8A apply to documents produced under r 8(2)? In my view, it does. Although the subheading of r 8A refers to the procedure on discovery, the wording of r 8A(1) refers to "documents ... produced under these rules ... ". Documents produced under r 8(2) are clearly produced "under these rules". That being the case, the provisions of r 8A apply and the documents ought be identified or indexed as required by r 8A(1)(b). That has not been done and it should have been done. I will make orders accordingly.
10 I also accept that the rules require that a party inspecting documents be provided with copying facilities. It may well be the case that the procedure in this State has been for a party inspecting documents to request copies of those documents which are provided in due course by the solicitors. There are no doubt good practical reasons why this should be the case. But the rules clearly anticipate that if a party wishes to obtain copies of documents at the time the inspection is taking place, copying facilities must be provided and the party must be advised as to how those copying facilities are operated. That was not done in this case and it should have been done. Once again, I will make orders accordingly.
11 In relation to the arguments put by counsel for the plaintiffs with respect to the prospect of Clay seeing confidential information, in my view these considerations do not affect Clay's right to take photocopies. The wording of r 8A(2) is mandatory - "the party producing the documents must provide facilities" (my underlining). If a party inspecting documents insists on copying those documents at the time of the inspection, it is up to the solicitors to ensure that they are not compromised by the copying procedure. Whatever the difficulties, I have some doubt as to whether or not the court is empowered to release a party from its obligation to provide the photocopying facilities.
12 During the course of submissions by both counsel, there was some discussion as to what, if any, payment for the copying could be extracted by the solicitors providing the copies. Rule 8A is silent on this question.
(Page 8)R
11A anticipates that the costs should be included in the party/party costs in the proceedings. However, the rule does anticipate an order to a different effect being made by the court. In my view, where a party obtains photocopies at the time the documents are inspected, an invoice for a reasonable amount per copy should be raised and rendered to the party obtaining the copies. These costs should be paid forthwith.
13 Having resolved the dispute between the parties, I cannot conclude these reasons without saying something about the conduct of the solicitors involved in this matter. The conduct of either firm of solicitors does them no credit. There appears to be no good reason why Clay could not simply have requested copies of the documents and he would no doubt have been provided with them in due course. To insist upon obtaining copies at the time of inspection, while consistent with the letter of the Rules, was at odds with what is common practice. His actions were unnecessarily provocative. So far as the solicitors for the plaintiffs are concerned, when it became apparent to Giles that Clay was insisting on exercising his rights under the rules, he should have ensured photocopying facilities were provided. It is difficult to accept the photocopying facilities could not be made secure for the short time involved. If necessary, they could have had someone watch Clay's every move - they are not precluded from doing so by the Rules.
14 What appears to have happened is that intransigence on both sides, perhaps inspired by mutual antipathy, has scuppered any prospect of compromise by either party. The conduct of litigation in such a way is to be deplored. As I have said, neither firm of solicitors emerges from this incident with credit.
15 I will hear the parties as to the precise form of orders and as to costs.
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