Supreme Court of WA|2009-03-25|Before: Martin CJ

AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [No 3] [2009] WASC 67 (25 March 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [No 3] [2009] WASC 67

HEARD : 10 & 29 OCTOBER 2008, 12 & 24 NOVEMBER 2008, ON THE PAPERS

BETWEEN : AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782)

SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078)

Practice and procedure - Discovery - Discovery of extracts of documents rather than whole documents on the grounds of irrelevance and legal professional privilege - Masking of parts or sections of discovered documents - Application for inspection of unredacted documents - Whether oath of discovery conclusive as to relevance of extracts - Whether entitlement to mask exists - Interpretation of 'document' - Orders 26 and 37 Rules of the Supreme Court 1971 (WA) - Relevance of O 1 r 4A and r 4B to masking of documents

Rules of the Supreme Court 1971 (WA), O 1, O 26, O 37

First Defendant : Mr B Dharmananda & Mr C L Zelestis QC

Fourth Defendant : Mr B Dharmananda & Mr C L Zelestis QC

Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259

Australian Competition & Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353

Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55

Council of the New South Wales Bar Association v Archer [2008] NSWCA 164

CSBP Ltd v Gerling Australia Insurance Co Pty Ltd [2005] WASC 69

Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335

Egglishaw v Australian Crime Commission (No 2) [2009] FCA 12

Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041

Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93

GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172

Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045

Gunns Ltd v Marr [2008] VSC 464

Harris Scarfe Ltd (Receivers & Managers Appointed) (in liq) v Ernst & Young (No 10) [2006] SASC 325

Harris Scarfe Ltd (Receivers & Managers Appointed) (in liq) v Ernst & Young (No 11) [2006] SASC 389

Jones v Andrews (1888) 58 LT 601

Menkens v Wintour [2006] QSC 342; [2007] 2 Qd R 40

Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2004] QSC 329

Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34

Optus Communications Pty Ltd v Telstra Corp Ltd [1995] FCA 1215

Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335

Telstra Corp Ltd v Australis Media Holdings (Unreported, NSWSC, 10 February 1997)

Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611

Wimmera Industrial Minerals Pty Ltd v RGC Minerals Sands Ltd [1998] FCA 299

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

1 MARTIN CJ: The plaintiff, Areva NC (Australia) Pty Ltd (Areva), applies for an order that the first defendant, Summit Resources (Aust) Pty Ltd (SRA) and the fourth defendant, Summit Resources Ltd (Summit - and with SRA, the Summit parties), provide for inspection by the legal representatives of Areva (who have proffered undertakings as to confidentiality) unredacted (unmasked) copies of documents which have been discovered by the Summit parties, and attached to affidavits filed and served by the Summit parties in redacted form.

2 In the substantive proceedings, Areva seeks orders pursuant to a number of sections of the Corporations Act 2001 (Cth) (Corporations Act). Central to the relief sought by Areva is the grant of relief pursuant to s 237 of the Corporations Act granting Areva leave to intervene in proceedings brought in this court by SRA against Resolute Limited and Mt Isa Uranium Pty Ltd who are, respectively, the second and third defendants in these proceedings. It is unnecessary to set out in detail the issues which arise in the substantive proceedings for the purposes of resolving Areva's application for inspection, other than to observe that the good faith of both parties is in issue, with the result that the potential scope of inquiry is quite broad.

3 Orders were made in the substantive proceedings for the discovery of documents in categories which had been agreed by the parties. Orders were also made to the effect that the evidence-in-chief in the substantive proceedings be adduced by way of affidavit, and a timetable was set for the filing and service of the affidavits upon which the parties proposed to rely at the hearing of the substantive proceedings. Pursuant to those directions, the Summit parties gave discovery, and provided inspection of a number of documents in redacted form. Those documents were annexed to affidavits which were filed and served by the Summit parties pursuant to the directions to which I have referred, being in particular the affidavit of Mr Malcolm Randall sworn 12 September 2008, and the affidavit of Mr David Berrie sworn 15 September 1008.

4 Prior to the commencement of Areva's application for inspection, the Summit parties had not provided any affidavit identifying the basis upon which the redaction of the documents had been performed, or asserting any claim for privilege from inspection of the masked portions of those documents.

5 However, following the exchange of written submissions between the parties, and my enunciation of certain tentative views, the Summit parties filed and served an affidavit of Mr David Benson in opposition to Areva's application for inspection. Thereafter the parties exchanged further written submissions. The application was eventually decided on the papers.

6 Mr Benson is a solicitor employed by the firm of solicitors representing the Summit parties in these proceedings. He deposes that he is involved in the conduct of those proceedings on behalf of the Summit parties under the supervision of a partner of the firm.

7 Mr Benson points out that some of the documents annexed to the affidavit of Mr Randall are the same as documents annexed to the affidavit of Mr Berrie. Mr Benson's affidavit provides a convenient table showing the correlation between those documents.

8 Mr Benson is the person who decided which portions of the redacted documents should be masked. The reasons which he gives for masking the documents can be conveniently grouped in the following categories:

(a) 'matters relating to the internal management of Summit to be discussed at an upcoming meeting of the Board of Summit ...' that are 'irrelevant to the matters in issue ... and are confidential to Summit';

(b) agendas for a proposed meeting of the Board of Summit or minutes of meetings of the Board of Summit referring to 'matters relating to the internal management of Summit including (amongst other things) the proceedings that were brought by SRA against the second and third defendants to these proceedings ...' that are 'irrelevant to the matters in issue in these proceedings and are confidential to Summit';

(c) board papers for a meeting of the Board of Summit held on 19 June 2008 referring to 'numerous different matters relating to the internal management of Summit including (amongst other things) the proceedings that were brought by SRA against the second and third defendants to these proceedings ...' that are 'irrelevant to the matters in issue in these proceedings and are confidential to Summit';

(d) other documents which 'were relevant to a number of different matters to be discussed at the meeting of the Board of Summit on 19 June 2007 and relate to the internal management of Summit ...' that are 'irrelevant to the matters in issue in these proceedings and are confidential to Summit';

(e) matters that 'are subject to a claim of legal professional privilege on the basis that ... (it) ... consists of, contains, or evidences, professional communications of a confidential nature passing between the officers, servants or agents of Summit and SRA and the legal advisers of Summit and SRA which were brought into existence or made for the dominant purpose of obtaining legal advice and assistance from Summit's and SRA's legal advisers and/or memoranda and notes made to or by Summit and SRA of such communications' (and which, in one case is also said to contain material that is irrelevant to the matters in issue in the proceedings and which are confidential to Summit); and

(f) four paragraphs of an email referring to various categories of information stored on the laptop used by Mr Berrie during his time as an executive director of Summit relating to the internal management of Summit and which are said to be irrelevant to the matters in issue in these proceedings and confidential to Summit.

9 There are a number of observations which I would make in relation to Mr Benson's affidavit. The first is that the basis on which he has concluded that masked material is irrelevant to the matters in issue in the proceedings is not at all clear from the terms of his affidavit. In each case, the justification for the conclusion that the material is irrelevant is provided in words of such general application and breadth as to be almost meaningless. That conclusion is supported by the fact that the same terminology is used to justify the conclusion of irrelevance drawn with respect to a significant number of different documents - that is, that the matters relate to 'the internal management of Summit'. It is perhaps to be expected that most documents brought into existence within a company relate in some way or another, either directly or indirectly, to the management of that company. The phrase 'internal management' is, of course, tautologous, as there is no suggestion in this case of any form of external management. Characterising information in that way is therefore virtually meaningless. Further, characterising the information in that way is irrelevant, because it does not follow that information is irrelevant to the matters in issue in these proceedings merely because it relates to 'the internal management of Summit'.

10 The lack of utility of an affidavit expressed in such general and meaningless terms is reinforced by the observation that, in some cases, documents 'relating to the internal management of Summit' are said to be irrelevant notwithstanding that they relate to the proceedings that were brought by SRA against the second and third defendants which are the proceedings in respect of which Areva seeks leave to intervene. Mr Benson provides no explanation for his conclusion that, notwithstanding that the masked material relates to those proceedings, he has concluded that it is irrelevant.

11 The second observation I would make in relation to Mr Benson's affidavit is that his assertion that the masked material is 'confidential to Summit' is nothing more than that. Mr Benson is not an officer or employee of either of the Summit parties, and provides no basis whatever for the assertion of confidence. To the extent that his assertion might be taken to be a statement of information or belief, it does not comply with O 37 r 6(2a) of the Rules of the Supreme Court 1971 (WA) which requires that affidavits containing such statements set out the sources or grounds of the relevant information or belief. Although no formal objection was taken to that portion of Mr Benson's affidavit, Mr Benson's assertions of confidence appear to me to be entirely devoid of evidentiary value.

12 The third observation I would make in relation to Mr Benson's affidavit concerns the asserted claim for legal professional privilege. No claim for privilege from inspection on this ground was made in respect of the masked portions of the documents prior to the service of Mr Benson's affidavit. Mr Benson's affidavit does not follow the conventional form followed when such a claim of privilege is made. First, Mr Benson is not an officer or employee of either of the Summit parties. It is those parties who are entitled to any privilege, and it is therefore those parties who must assert the claim by an appropriate affidavit. Second, Mr Benson's affidavit does not depose to the substantive nature of the communications which are said to be subject to the claim. Rather, his affidavit takes the form of an explanation for the masking which he performed by reference to the making of a claim. He does not himself depose to the facts which would sustain such a claim - namely, the purpose or purposes for which the documents were brought into existence - other than to advance a broad assertion that the documents were 'brought into existence or made for the dominant purpose of obtaining legal advice and assistance'.

13 For these various reasons, it seems to me that Mr Benson's affidavit is of little or no use in the resolution of the issues raised by Areva's application beyond a mere assertion, by a legal practitioner, of the irrelevance of the masked portions of the documents. I will deal with the significance to be attached to such an assertion in the context of the cases dealing with the practice of redaction in a number of different jurisdictions, to which I now turn.

Approaches to redaction of documents in different jurisdictions

14 In GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172, Hoffmann LJ (as his Lordship then was) cited with approval the following passage from Bray E, Digest of the Law of Discovery (2nd ed, 1910):

'Generally speaking, any part of a document may be sealed up or otherwise concealed under the same conditions as a whole document may be withheld from production; the party's oath for this purpose is as valid in the one case as in the other. The practice is either to schedule to the affidavit of documents those parts only which are relevant, or to schedule the whole document and to seal up those parts which are sworn to be irrelevant.' (174)

This passage was relied upon to support the conclusion that the practice was long established. Hoffman LJ also observed:

The oath of the party giving discovery is conclusive, 'unless the court can be satisfied - not on a conflict of affidavits, but either from the documents produced or from anything in the affidavit made by the defendant, or by any admission by him in the pleadings, or necessarily from the circumstances of the case - that the affidavit does not truly state that which it ought to state' per Cotton LJ in Jones v Andrews (1888) 58 LT 601, 604 (174)

15 That test was applied, and it was concluded that there was nothing in the documents produced which supported the conclusion that the masked material was relevant, in the sense described in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63 (see also Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341, 345). Hoffman LJ considered that the test of relevance had to be applied to the information contained in a document, rather than to the document as a whole, with the consequence that information conveyed by some parts of the document may be relevant, requiring those parts to be discovered, whereas information contained in other parts of the document may be irrelevant, with the consequence that those parts are not required to be discovered, and can be masked (175 - 176).

16 Following the introduction of new rules of court (see Pt 23 of the Supreme Court Rules 1970 (NSW)) relating to the provision of discovery, in Telstra Corp Ltd v Australis Media Holdings (Unreported, NSWSC, 10 February 1997) McLelland CJ in Eq, observed that under the new rules, documents required to be discovered may be specified not by reference to relevance to a fact or facts in issue, but by description of the nature of the documents, with the result that considerations of relevance were unnecessary. McLelland CJ in Eq further held that in such a case, if a party giving discovery wished to withhold part of a discoverable document, unless there is an agreement to that effect with the party to whom discovery is being given, or unless relief from the obligation to give discovery of the entire document is obtained from the court, the entire document must be made available for inspection.

17 More recently, in Council of the New South Wales Bar Association v Archer [2008] NSWCA 164, Campbell JA referred to a statutory definition of the word 'document' and the etymological origin of that word to support the conclusion that its proper meaning is 'something that conveys information', rather than a single piece of paper or a number of physically connected pieces of paper. In this particular respect, the approach taken by Campbell JA is similar to that taken by Hoffman LJ in GE Capital Corporate Finance Group Ltd.

18 In Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045, Branson J referred to the 'established practice' of providing inspection of masked documents, and included references to a number of previous decisions in the Federal Court and the decision in GE Capital Corporate Finance Group Ltd, which supported that practice. Nevertheless, her Honour expressed the view that the practice to be adopted in the Federal Court should correspond with that asserted by McLelland CJ in Eq in Telstra Corp Ltd. In her view, a party seeking to mask portions of a discoverable document carried the onus of either obtaining the agreement of the party (or parties) to whom discovery was given or the authority of the court for that course.

19 This approach was followed in Australian Competition & Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 (ACCC v McMahon), in which Selway J expressed the view that:

Once part of a document must be discovered, then in my view all of it should be produced for inspection, unless part of it is privileged, or unless the court has ordered that part not be produced. [10]

20 The earlier practice in the Federal Court was consistent with the line enunciated in GE Capital Corporate Finance Group Ltd (see for example Optus Communications Pty Ltd v Telstra Corp Ltd [1995] FCA 1215 and Wimmera Industrial Minerals Pty Ltd v RGC Minerals Sands Ltd [1998] FCA 299). However, the practice enunciated by McLelland CJ in Eq in New South Wales now appears to be established in the practice of the Federal Court (see in addition to Gray and ACCC v McMahon, Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335; Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649; Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93; Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611 and Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041, especially [48]).

21 However, most recently, in Egglishaw v Australian Crime Commission (No 2) [2009] FCA 12, Besanko J drew a distinction between a case in which an order for general discovery (in the Peruvian Guano sense) had been made, and a case in which a more limited order had been made - for example, by reference to specific classes of documents. In his view, in the former case, the more traditional approach enunciated in G E Capital Corporate Finance Group Ltd should be followed, whereas in the latter class of case, the approach enunciated by the more recent decisions of the Federal Court should be followed. It remains to be seen whether this distinction will be embraced by other members of the Federal Court.

22 In Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335, McPherson J charted the history of the practice of the courts of Chancery relating to the sealing up of parts of documents to be discovered, in a judgment which Hoffman LJ, in GE Capital Corporate Finance Group Ltd, described as 'masterly' and 'required reading on this subject'. McPherson J concluded from that historical analysis that the practice of masking parts of documents where objection was taken to production was well established both at common law and in equity (although in that case the objection to production was taken on the ground of privilege).

23 Although recent authority in Queensland is sparse, as recently as 2004, Curlex Manufacturing was still followed in the case of Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2004] QSC 329. In that case, Douglas J, citing Curlex Manufacturing, stated:

The portions of those documents disclosed appear to be relevant but there is nothing in particular to alert me to any reason why the balance of the documents undisclosed should be regarded as relevant. It is, of course, that it is 'appropriate to disclose only the relevant parts of documents'. [23]

24 More recently in Menkens v Wintour [2006] QSC 342; [2007] 2 Qd R 40, McKenzie J followed the practice enunciated by McLelland CJ in Eq in Telstra Corp. The applicants in this case relied on Telstra Corp and ACCC v McMahon 'as an expression of a practice that, generally, if a document contains discoverable material, the whole of the document should be disclosed'. MacKenzie J in Menkens emphasised that Telstra Corp was considering classes of documents where it was not necessary to consider relevance to a fact or facts in issue, whereas in Menkens the duty under the relevant rules was to 'disclose to each other party each document in the possession or control of the party which is directly relevant to an allegation in issue in the pleading'. However, MacKenzie J went on to emphasise another passage in the reasons of McLelland CJ in Eq in Telstra in which reference is made to the need for caution in exercising a discretion to allow parts of documents to be concealed given that this may 'create gaps affecting the ready comprehensibility of the remaining portions of the document'. MacKenzie J 'was not persuaded that the difficulty referred to in that passage [of McLelland CJ in Eq] will be avoided or that anything that has been placed before me by the respondents leads to the conclusion that disclosure of the documents in their original form should not be made'.

25 In Harris Scarfe Ltd (Receivers & Managers Appointed) (in liq) v Ernst & Young (No 10) [2006] SASC 325 (Harris Scarfe v Ernest & Young (No 10)), Debelle J, referred with apparent approval to the established practice of producing a document for inspection with any irrelevant parts masked. In that case, the existence of the practice was not in dispute. Rather, the question was whether the court should accept as conclusive an affidavit of the party producing the document to the effect that the masked portion of the document was irrelevant. On that subject, Debelle J concluded that the views of Hoffman LJ in GE Capital Corporate Finance Group Ltd, to the effect that such an affidavit was conclusive, did not represent the law of South Australia, in part because a rule of the Supreme Court specifically provided that where objection had been taken to production, the court might inspect the document for the purposes of deciding the validity of the objection. That conclusion was also supported by contemporary practice in Australia: see for example Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34. It was further reinforced by the practical consideration that it would be extremely difficult, if not impossible, for a party confronted with discovery of a redacted document, to discharge the obligation imposed by Hoffman LJ of showing, from the circumstances of the case or the disclosed portions of the document, that the masked portion was relevant.

26 Accordingly, Debelle J concluded that while there was no invariable practice whereby the court would inspect documents or portions of documents where objection had been taken to production, in many cases this would be desirable practice. Further, his Honour was of the view that the affidavit of the party objecting to production should not be regarded as conclusive. After inspecting the masked portions of the document, Debelle J directed that some of them be unmasked and provided for inspection.

27 Debelle J's decision was upheld on appeal in Harris Scarfe Ltd (Receivers & Managers Appointed) (in liq) v Ernst & Young (No 11) [2006] SASC 389 (Harris Scarfe v Ernst & Young (No 11). Gray J was of the view that the affidavits of the solicitors were not conclusive as to relevance, and that the court had an unfettered discretion to inspect the document in question for the purposes of deciding on the objection. In the result, the appeal court was divided on the question of the relevance of the portions of the document which had been masked. Gray J was of the view that the masked portions were relevant, whereas Anderson and White JJ were of the view that they were not directly relevant. However, White and Anderson JJ nevertheless joined in the dismissal of the appeal, on the ground that the provision of inspection of the entire document was in the interests of justice, as it would assist in the expeditious resolution of the matters in issue. Put another way, the majority were of the view that inspection of the masked portions could be ordered wherever it would be in the interests of justice to do so, irrespective of relevance.

28 In Gunns Ltd v Marr [2008] VSC 464, Kaye J referred to a long established practice entitling a party who objected to inspection of parts of a discovered document to mask or redact those parts. However, he referred also to the power of the court to inspect the document in its unmasked form in order to assess the objection to production. In response to the submission that the affidavit of the party making discovery was conclusive as to the irrelevance of the parts masked, after referring to GE Capital Corporate Finance Group Ltd, Kaye J concluded that there was a substantial body of Australian authority to the contrary, and which supported the proposition that where there was a dispute as to the right of a party to mask part of a discovered document, it was for the court to determine, on the material before it, whether that party had a right to do so. Kaye J was also of the view that ultimately the onus rested on the party resisting production of the whole of the document to establish an appropriate basis for doing so. Further, he took the view, similar to that enunciated in the Court of Appeal in Harris Scarfe v Ernst & Young (No 11), that, in the end, the criterion to be applied by the court was identifying that course which would best serve and enhance the attainment of justice between the parties. In this case, Kaye J inspected a sample of the documents to which objection had been taken, nominated by the parties, in order to test the proposition that the party giving discovery had masked only confidential and irrelevant parts of those documents.

29 Before referring to the Western Australian cases, it is appropriate to identify the relevant rules of court. Order 26 of the Rules of the Supreme Court deals with discovery and inspection. For the purposes of that order, 'document' is described to mean:

[A]ny record of information and includes -

(a) any disc, tape, sound-track or other device in which sounds or other means of transmitting data (not being visual images); and

(b) any film, negative, disc, tape or other device in which one or more visual images,

are embodied so as to be capable, with or without the aid of some other device, of being reproduced therefrom.

30 Order 26 r 4 sets out the requirements of an affidavit verifying a list of documents discovered, and the requirements of the list. Order 26 r 8 provides that a party who has served a list of documents must allow the other party to inspect the documents mentioned in the list, other than any which he objects to produce. Order 26 r 10 and r 11 provide:

At any stage of the proceedings in any cause or matter the Court may subject to Rule 11 order any party to produce to the Court any document in his possession, custody or power, relating to any matter in question in the cause or matter and the Court may deal with the document when produced in such manner as it thinks fit.

No order for production of any documents for inspection or to the Court shall be made unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

31 As I have mentioned, the documents the subject of Areva's application have been annexed to affidavits which have been filed and served by the Summit parties. Order 37 of the Rules of the Supreme Court deals with affidavits. Order 37 r 2(8) provides:

Subject to Rule 9(1), a document that is to be used in conjunction with an affidavit must be attached to the affidavit and be referred to in the affidavit as being attached.

32 The word 'document' is also defined by s 5 of the Interpretation Act 1984 (WA) for the purposes of that Act and every other written law (which would include the Rules of the Supreme Court), but in terms which do not appear to me to be of any significance to the issues in this case.

33 Turning now to the cases, in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 Master Newnes (as he was then) referred with obvious approval to the decision in GE Capital Corporate Finance Group Ltd. The same approach was taken by Master Sanderson in CSBP Ltd v Gerling Australia Insurance Co Pty Ltd [2005] WASC 69. More recently, in Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 [52], Le Miere J stated:

It is an established principle and accepted practice that where a discoverable document contains material that is both relevant and irrelevant, the document can be produced for inspection with the irrelevant part or parts of the document sealed up or covered up in some way so that only discoverable material is disclosed. The oath of a party who has covered up parts of a document, that the uncovered parts are the only parts relevant to matters in question, or that the covered parts do not relate to matters is question, is prima facie conclusive: see GE Capital Corporate Finance Group v Bankers Trust Co [1995] 1 WLR 173, 174; Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [12]; Harris Scarfe Ltd (Receivers & Managers Appointed) in Liq v Ernst & Young (No 10) [2006] SASC 325 [22].

34 Le Miere J does not appear to have been referred to the lines of authority in New South Wales, Victoria and in the Federal Court which are inconsistent with the approach and practice enunciated in GE Capital Corporate Finance Group Ltd, and the decisions of the Masters to which he referred. Further, it seems likely that the initials 'cf.' were inadvertently omitted from the passage I have set out because, as I have observed, the decision in Harris Scarfe v Ernst & Young (No 10) does not support the proposition asserted.

35 This review of the authorities suggests that the English approach, as enunciated in GE Capital Corporate Finance Group Ltd, which is to the effect that a party giving discovery has a right to mask portions of a discovered document which are said to be irrelevant, and that, in the event of a dispute, an affidavit asserting irrelevance will be taken as conclusive unless there is material which establishes to the contrary, does not reflect the contemporary approach in a number of Australian jurisdictions. In each of the Federal Court, and the courts of New South Wales and Victoria, it is established that, in the event of dispute, the party who seeks to mask portions of a discovered document carries the onus of establishing that it is appropriate for those portions to be masked. In each of those jurisdictions and in South Australia, it is established that the affidavit of a solicitor asserting irrelevance will not be taken to be conclusive of that assertion. In all of those jurisdictions it is established that in cases of doubt, the court has an unfettered right to call for the document and itself inspect the document in its entirety in order to determine the objection to inspection. Further, the more recent decisions in South Australia and Victoria emphasise that the approach to be taken in the resolution of these issues is not confined to the assessment of relevance, but involves broader considerations, including the course which is best designed to advance the interests of justice.

36 The express provisions of the Rules of the Supreme Court 1971 (WA) do not appear to me to compel a choice, one way or the other, between these divergent lines of authority. While the term 'document' is defined, for the purposes of O 26, by reference to 'information' (consistently with the approach taken by Hoffman LJ in GE Capital Corporate Finance Group Ltd), if a document has been listed in a list of documents attached to an affidavit of discovery, in such a way as to connote the entirety of a document, O 26 r 8 appears to provide a presumptive entitlement to inspect the entire document, but on the other hand appears to reserve a capacity in the party giving discovery to object to production.

37 It therefore seems to me that the general provisions of the Rules of the Supreme Court found in O 1 r 4A and r 4B, provide greater guidance to the resolution of these issues than the express provisions of O 26 and O 37 to which I have referred. Those rules provide:

4A. Elimination of delays

The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.

4B. System of case flow management

(1) Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of -

(a) promoting the just determination of litigation;

(b) disposing efficiently of the business of the Court;

(c) maximising the efficient use of available judicial and administrative resources; and

(d) facilitating the timely disposal of business at a cost affordable by parties.

(2) These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in paragraph (1).

38 Those overriding principles appear to me to support the adoption in this jurisdiction of the practices which are now supported by a preponderance of contemporary Australian authority, and no longer following the practices enunciated in GE Capital Corporate Finance Group Ltd. In summary, the practice should be that while it is open to a party providing inspection of documents to mask a document provided, in the event of contention, that party will carry the onus of satisfying the court that masking the document was appropriate. An affidavit of that party or its solicitor will not be regarded by the court as conclusive, and in cases of doubt, the court may itself inspect the document in its entirety in order to evaluate the objection. In making its determination, the court will not be confined to an assessment of the relevance of the portion of the document masked, but will take into account broader considerations of the kind enunciated in O 1 r 4A and r 4B of the Rules of the Supreme Court, and will adopt the course which is best designed to achieve those objectives and the attainment of justice between the parties.

39 This view is, of course, contrary to the view recently enunciated by Le Miere J in Absolute Analogue. One judge of this court should ordinarily follow a recent decision of another judge of the court. I depart from that practice in this case with hesitation, and only because it seems clear that Le Miere J was not referred to the extensive line of contemporary Australian authority which departs from the older English authority upon which he and the Masters relied.

The application of that approach to this case

40 Applying that approach to the issues that have arisen in this case, the Summit parties were entitled to mask the parts of the documents which they provided for inspection, and which they attached to the affidavits which they have filed and served. However, as Areva has exercised its right to object to that course, the Summit parties must discharge the onus of satisfying the court that masking was appropriate and is the course best designed to achieve the objectives identified in O 1 r 4A and r 4B of the Rules of the Supreme Court and attain justice as between the parties to this litigation. In this case, the Summit parties rely upon the affidavit of Mr Benson in order to discharge that onus.

41 In very general terms, the affidavit supports the objection of the Summit parties to production on two grounds:

42 In relation to irrelevance and confidentiality, for the reasons I have given, the affidavit of Mr Benson does nothing more than assert irrelevance and confidentiality. There is no evidentiary value in the affidavit beyond those mere assertions. As those assertions are not conclusive, neither those assertions, nor the masked documents themselves establish that masking the documents was appropriate. Further, in some cases, the description of the portion masked, which includes reference to the litigation between SRA and the second and third defendants, if anything, supports the conclusion that masking was inappropriate.

43 There is no evidence to the effect that disclosure of the masked portions of the documents would occasion prejudice to the Summit parties. In that context, while it would be open to me to call for copies of the documents in their entirety, and to inspect them for the purposes of forming my own view with respect to relevance, in my view the evidentiary materials provided by the Summit parties are of insufficient weight to justify that course. Another reason for not taking that course is that I am not at all confident that at this stage of the proceedings, in advance of the openings of counsel or any review of the ambit of the evidence to be adduced or the factually contentious issues which will arise from that evidence, it would be possible for me to form any meaningful view on the subject of relevance, or the related subject of whether the masked portions of the documents would shed any light on the portions of the documents which have been disclosed, or upon other documents which have been discovered.

44 In the end the question which I must determine is to be dictated by broader case management issues of the kind identified in O 1 r 4A and r 4B of the Rules of the Supreme Court, and the interests of justice as between the parties to this litigation. Given the lack of evidentiary substance in the assertions of irrelevance and confidence, the lack of evidence of prejudice, and the present limits upon my capacity to form any meaningful view of relevance merely from an inspection of the masked portions of the documents, it seems to me that the course most likely to achieve the objectives identified in O 1 r 4A and r 4B of the Rules of the Supreme Court, and justice as between these parties, is to direct disclosure of the portions of the documents which have been masked, and for which there is no claim of legal professional privilege. In this way, the case can be prepared for trial (which has been set down) without further distraction caused by this issue.

45 However, it seems to me that different considerations apply to those portions of the documents where there has been a claim for legal professional privilege foreshadowed. As I have observed, those claims are not supported in the conventional way by the affidavit of Mr Benson. On one view, having been given the opportunity to make out its claim for privilege from inspection, the Summit parties should be bound by the course they have taken, and precluded from adducing further evidence in support of that objection. However, taking into account the case management objectives to which I have referred, the broader interests of justice as between these parties, and the risk of significant disruption to the orderly progress of these proceedings to a hearing if I were to now order inspection of documents in respect of which a claim for legal professional privilege has been foreshadowed, it seems to me that the better course is to adjourn that aspect of Areva's application, and to invite the Summit parties to adduce evidence in the conventional form in order to attempt to sustain their claim for legal professional privilege. When that evidence is adduced, if Areva presses its claim for inspection, it may well be that the proper course for me to follow is to inspect the masked portions of the documents. In the case of claims for legal professional privilege, the problems that attend inspection for the purposes of assessing relevance do not apply, in that it should be a much simpler task to ascertain from inspection whether the documents have the characteristics which would sustain a claim for legal professional privilege.

46 For these reasons I will direct that Areva be entitled to inspect unmasked copies of the documents for which no claim of legal professional privilege has been made, being documents MR 13, MR 14, MR 15, MR 17, MR 18, MR 29, MR 30, DWB 18, DWB 48, DWB 49, DWB 51, DWB 52, and DWB 67, but will otherwise adjourn Areva's application for inspection.

47 I will further direct that the Summit parties file and serve any further affidavits upon which they wish to rely in support of their claims for legal professional privilege within 14 days, and, if Areva wishes to press its claims for inspection of those documents after service of any such documents, will list Areva's application for further hearing, at which the Summit parties should have available unredacted copies of the documents in question for inspection by the court.

AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [No 3] [2009] WASC 67 (25 March 2009)

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Judgment (107 paragraphs)

AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [No 3] [2009] WASC 67 (25 March 2009)

Legislation Cited (1)

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