Citation : RANKILOR -v- CITY OF SOUTH PERTH [2014] WADC 110

Practice and procedure - Application for particular discovery - Whether primary judge could be fairly certain documents existed - Legal professional privilege - Assessor's report commissioned by insurer - Provided to insured's solicitor - No waiver of privilege

Practice and procedure - Subpoena not to be used as substitute for discovery

Australian Competition and Consumer Commission v Shell Co of Australia Ltd [1999] FCA 212; (1999) 161 ALR 686

Beecham Group Ltd v Bristol-Myers Co [1979] VicRp 27; [1979] VR 273

Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689

Diddams v Commonwealth Bank of Australia [1998] FCA 497

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601

Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83

Kizon v Palmer (1997) 75 FCR 261

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151

NSW Commissioner of Police v Tuxford [2002] NSWCA 139

The Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564

Theiss Contractors Pty Ltd v Terokell Pty Ltd [1993] 2 Qd R 341

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

1 JUDGMENT OF THE COURT: This is an appeal from a decision of Davis DCJ in the District Court who, on 25 August 2014, dismissed two appeals by the appellant, one from a decision of Deputy Registrar Harman and the other from a decision of Deputy Registrar Hewitt, both decisions relating to discovery.

2 The appellant now appeals to this court from the decision of the primary judge to dismiss those appeals.

3 As this is an appeal from an interlocutory decision, the appellant requires leave to appeal: District Court of Western Australia Act 1969 (WA) s 79(1)(b).

4 On 18 March 2012, the appellant was injured when she tripped on a protruding concrete slab in the footpath on Angelo Street, South Perth and fell (the incident). On 4 January 2013, the appellant brought proceedings against the respondent claiming damages for personal injury. The appellant alleged, in substance, that the respondent was negligent in failing to inspect and maintain the footpath in a safe condition.

5 In the action, the respondent gave unsworn discovery of documents by a certified list dated 27 March 2013. The appellant was not satisfied with it and, on 15 April 2013, filed an application for discovery on oath, including discovery of particular classes of documents. On 3 May 2013, the respondent filed a list of documents verified by affidavit.

6 The appellant remained dissatisfied with the respondent's discovery and there was subsequently a series of applications by the appellant in which she alleged that the respondent's discovery was, in one way or another, deficient. It is unnecessary to trace the history of those applications. It is sufficient to pick up events at 24 February 2014 when the appellant filed a chamber summons seeking 'default judgement' for non-compliance with discovery by the respondent. In an affidavit in support of the application, the appellant set out a number of documents that she said should have, but had not, been discovered by the respondent.

7 On 24 March 2014, Deputy Registrar Harman dismissed the application. The appellant's appeal from that decision was dismissed by the primary judge.

8 On 10 June 2014, the appellant filed another chamber summons, on this occasion for orders that an investigator's report (the report), in respect of which the respondent had claimed legal professional privilege, be disclosed to her. In that application the appellant also sought a number of documents set out in a subpoena which she had caused to be issued, directed to the respondent.

9 The report had been included in a list of documents, verified by the affidavit of Mr Dalton of 29 April 2013, where the claim of legal professional privilege was made. The basis of the claim of privilege was explained in an affidavit of the respondent's solicitor, Mr Eller, filed on 14 June 2013. In that affidavit, Mr Eller said that immediately upon being notified by a letter from the appellant that she intended to make a claim against it, the respondent had notified its public liability insurer. The insurer had then engaged the investigator to assess the appellant's allegations in order that the results of the investigator's enquiries could be provided to the insurer's legal advisers for advice in contemplation of the appellant's foreshadowed claim.

10 On 3 July 2014, the appellant's application of 10 June 2014 was dismissed by Deputy Registrar Hewitt. The appellant's appeal from that decision was also dismissed by the primary judge.

11 The primary judge noted at the outset of her reasons that an appeal from a registrar was a fresh hearing and it was not necessary for the appellant to establish error on the part of the deputy registrar: District Court Rules 2005 (WA) r 15(6). Her Honour then turned first to the appeal from the decision of Deputy Registrar Hewitt to dismiss the appellant's application of 10 June 2014.

The appeal from the decision of Deputy Registrar Hewitt

12 Before the primary judge, the appellant challenged the claim for privilege over the report and submitted, first, that it was described differently in documents filed on behalf of the respondent, sometimes as an investigator's report and sometimes as an assessor's report; and, secondly, that if the investigation was for legal purposes she had not been aware of that and had she known it at the time she was approached by the investigator to provide a statement about the incident she would not have given him a statement.

13 The primary judge considered it was irrelevant how the report was described, the issue being one of its substance [31]. Her Honour also rejected the appellant's submission that she was not aware the investigation was for legal purposes, pointing out that the appellant's statement about the incident (a copy of which had been provided to the appellant) contained a signed acknowledgement by the appellant that her statement may be provided to legal advisors [37].

14 Her Honour went on to find that the investigation was carried out after the respondent's insurer was notified of the appellant's proposed claim and was requested by the insurer in anticipation of legal proceedings being brought by the appellant against the respondent. Her Honour was satisfied that the report came into existence for the dominant purpose of its use in litigation and that it was privileged [38]. Having inspected a copy of the report, the primary judge concluded that there was no unfairness to the appellant in the respondent maintaining a claim to privilege over it [39]. The challenge to the claim of privilege therefore failed.

15 In relation to the subpoena, the appellant confirmed at the hearing that the documents which were sought by way of the subpoena were the same documents as were sought by way of discovery [41]. Her Honour pointed out that it was inappropriate for the appellant to issue a subpoena as a substitute for discovery and found that in respect of the subpoena, too, the application had been correctly dismissed by the deputy registrar [42].

16 The primary judge concluded that the appeal had no merit and should be dismissed.

The appeal from the decision of Deputy Registrar Harman

17 On the hearing of this appeal, the primary judge admitted into evidence two further affidavits of the appellant, dated 26 June 2014 and 7 July 2014 respectively, specifying additional documents of which discovery was sought by the appellant. The primary judge identified (at [48]) the following documents as being the subject of the appeal:

1. Document which gives accurate measurement of height difference of slabs rather than slab being raised by some 20 millimetres as stated in defence document.
2. Road condition report with footpath information filled out.
3. Road Inventory Sheet with footpath information filled out.
4. Purchase order dated 15.1.13.
5. Street tree information record for tree outside 1 Angelo Street, South Perth 4.2.12.

18 The primary judge noted that on an application for discovery of particular documents the question was whether there were reasonable grounds upon which the court could be fairly certain that the documents existed, were relevant, and ought to have been discovered. Her Honour found that in respect of each document, apart from the purchase order (which the appellant conceded had been discovered), the appellant had failed to demonstrate reasonable grounds to be fairly certain that the document was in existence.

19 The primary judge found there was no evidence to suggest that a document answering the description of item 1 above existed. An employee of the respondent had measured the height discrepancy by holding a mobile phone against the protruding slab and photographs had been taken of that being done. The photographs had been discovered by the respondent. There was no reason to believe there were other documents in existence containing an accurate measurement of the height difference.

20 As to items 2 and 3, while the appellant had produced blank documents of the respondent entitled 'Road Condition Rating Sheet' and 'Road Inventory Sheet', the primary judge considered there were no grounds upon which she could be reasonably certain that a document of either nature was completed following the incident or before the subsequent repair of the footpath in 2013. Whether such documents existed was simply a matter of speculation [53].

21 Her Honour noted that the appellant had accepted at the hearing that a document previously discovered by the respondent satisfied her request for item 4 [54].

22 In relation to item 5, the respondent had discovered its Tree Manager Network database with a screen capture which was said to record that the respondent did some work in the location of the incident in the month before the incident but contained no details of what was done. The appellant submitted that there must be a document containing comments about what was seen on the footpath on that occasion. That submission was rejected by the primary judge as being based simply upon an assumption by the appellant that something would have been entered in the database and that there was something to report. Her Honour concluded that on the evidence there were no reasonable grounds upon which she could be fairly certain that a document of the nature sought existed [57].

23 The primary judge also dealt with some additional documents referred to by the appellant in the course of the hearing. In particular, the appellant referred to information she had obtained from the respondent that it conducted audits of its footpaths every one to two years and submitted that there must be an 'audit report' of the footpath at the location of the incident. The primary judge rejected that submission, observing that it was based upon assumptions that a report is always generated when an audit is undertaken and that there was something at that location on which to report, assumptions which had no foundation in the evidence. Her Honour found there were no reasonable grounds upon which she could be fairly certain that a document of the nature sought existed [60].

24 The appellant also referred to a photograph taken of the location after the incident showing an orange barricade erected around it and submitted that the respondent should have discovered documents showing when the barricade was erected and when it was taken down. The primary judge rejected that submission as based simply upon conjecture as to the existence of such documents [61].

26 There are 23 grounds of appeal. It is not necessary and it would not be useful to canvass each of them in turn. A number are plainly misconceived; some, even if made out, are not material to the decision of the primary judge; and some, with respect, are simply incomprehensible.

27 However, taking the appellant's grounds of appeal and submissions as a whole, we understand the appellant's substantive contentions in respect of the appeal from the decision of Deputy Registrar Hewitt to be that the primary judge erred in finding that:

(1) the description given to the report was irrelevant to the question of whether it was privileged;

(2) there was no unfairness to the appellant in the respondent maintaining a claim to privilege over the report;

(3) the respondent was entitled to claim privilege for the report, as her Honour should have found that if the report was privileged, only the investigator or his employer was entitled to claim that privilege; and

(4) the appellant was not entitled to use a subpoena as a means of obtaining discovery of documents.

28 In respect of the appeal from the decision of Deputy Registrar Harman, we understand the appellant's substantive contentions to be that the primary judge erred in:

(1) failing to treat the appeal as a hearing de novo;

(2) finding that the appellant had failed to establish reasonable grounds to be fairly certain there were in existence documents of the nature set out in each of items 1 to 5 of [48] of her reasons;

(3) finding that the appellant had failed to establish reasonable grounds to be fairly certain that there were in existence documents relating to the erection and removal of the orange barricade; and

(4) finding that the appellant had failed to establish reasonable grounds to be fairly certain that an 'audit report' of the footpath existed.

29 In respect of each appeal, we will treat the issues we have identified as the grounds of appeal.

The disposition of the appeal The appeal from the decision of Deputy Registrar Hewitt

30 There is no merit in this ground. As the primary judge correctly observed, whether the report is described by the respondent as an 'investigator's report' or an 'assessor's report', or from time to time by those descriptions interchangeably, is of no significance. So far as the report itself is concerned, the question of privilege turns on the contents of the report, not which of those descriptions was used to refer to it.

31 There is also no merit in this ground. It was submitted that the primary judge was not in a position to determine whether the non-disclosure of the report would disadvantage the appellant as her Honour would not be the trial judge. There is no substance in that. Whether or not the primary judge was to be the trial judge had no bearing on her Honour's capacity to determine whether there would be unfairness in permitting the respondent to maintain a claim of privilege over the report.

32 We should say, however, that it is not clear how the issue of unfairness arose, if it did. As we have mentioned, the primary judge, having found that the respondent was entitled to maintain a claim of privilege, inspected the report, a copy having been provided to her in a sealed envelope. Her Honour said she had inspected it in light of the appellant's complaints in an affidavit of 10 June 2014 and in the course of the hearing, and referred to Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, 96. The specific complaints by the appellant which caused her Honour to do so are not stated in her judgment and nor do they clearly emerge from the affidavit or the transcript of the hearing before her Honour. We assume, however, that the primary judge understood the appellant to allege, in effect, that there had been an imputed waiver of the privilege by the respondent and inspected the report for the purpose of resolving any such allegation. Having done so, her Honour concluded there would be no unfairness in the respondent maintaining the claim of privilege.

33 It is not apparent on the material before this court on what an imputed waiver of privilege by the respondent might be based and we do not understand the appellant's contention on this appeal to be based on an imputed waiver of privilege. Rather, it appears to be based on an assumption that a claim of privilege is subject to an overriding principle of fairness to the other party operating at large. That is not the case: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [29].

35 On the hearing of this appeal, the appellant conceded that the respondent's insurer was entitled to maintain a claim of legal professional privilege in respect of the report but submitted that the primary judge had erred in failing to determine whether the investigator was also entitled to maintain such a claim (ts 8). We do not understand that. The report was prepared by the investigator on behalf of the insurer, which had engaged the investigator for that purpose in light of the appellant's foreshadowed claim. No question of a claim of privilege by the investigator arose. The relevant questions were whether the insurer was entitled to maintain a claim of privilege in respect of the report and, if so, whether the privilege was waived by disclosure of the report to the solicitors for the respondent. Although not directly raised on the appeal, it is appropriate to canvass these issues briefly.

36 In our view, on the evidence and unchallenged findings of the primary judge, the insurer was entitled to maintain a claim of privilege and that privilege had not been so waived. A document which is brought into existence for the dominant purpose of submission to legal advisors for advice or for use in legal proceedings is privileged and protected from production: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49. On the evidence, the primary judge found that the report had been brought into existence for the dominant purpose of use in the litigation foreshadowed by the appellant. That finding is not challenged and nor is it evident that there is any proper basis upon which it might have been challenged. The primary judge was therefore correct to find that the insurer was entitled to maintain a claim of legal professional privilege in respect of the report.

37 That entitlement was not affected by providing a copy of the report to the solicitors for its insured, the respondent. The insurer and the respondent had a common interest in defeating the appellant's claim. In those circumstances, the provision by the insurer of a copy of the report to the solicitors instructed to act for the respondent in respect of the appellant's claim did not constitute a waiver of privilege in the report: see Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689, 695; Theiss Contractors Pty Ltd v Terokell Pty Ltd [1993] 2 Qd R 341; Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601, 608; Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151 [42] - [43].

38 Finally, on the fourth ground, the primary judge was correct in observing that it is inappropriate to use a subpoena as a substitute for discovery. There is, by O 26 of the Rules of the Supreme Court 1971 (WA), a procedure for discovery of documents by which a party may obtain from the other party documents relating to any matter in issue in the action and, if a party is dissatisfied with the extent of discovery made by an opposing party, a procedure by which discovery of particular documents may be sought. The principles to be applied in respect of those procedures are well-settled. A subpoena to produce documents to the court is intended for a different purpose and is subject to different rules. A subpoena is not a different means by which the purposes of O 26 may be achieved and it is inappropriate to use a subpoena in substitution for an application for discovery or discovery of particular documents. That has long been established: see The Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564, 574 - 575; Kizon v Palmer (1997) 75 FCR 261, 271 - 272; Diddams v Commonwealth Bank of Australia [1998] FCA 497; Australian Competition and Consumer Commission v Shell Co of Australia Ltd [1999] FCA 212; (1999) 161 ALR 686 [49] - [51]; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 [19]. This ground must fail.

39 The appeal so far as it relates to the decision of Deputy Registrar Hewitt should be dismissed.

The appeal from the decision of Deputy Registrar Harman

40 The basis of the contention that the primary judge failed to treat the appeal as a hearing de novo is not explained by the appellant and is not apparent from a reading of her Honour's reasons for judgment. At the outset of her reasons, the primary judge expressly noted that requirement [5]. There is nothing to suggest she did not adhere to it. The ground is without merit.

41 The remaining grounds relate to documents in respect of which the primary judge found that the appellant had failed to establish there were reasonable grounds upon which the court could be fairly certain that the documents existed. That requirement on an application for particular discovery her Honour took from Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3] - [6], in which in turn it was taken from the well-known case of Beecham Group Ltd v Bristol-Myers Co [1979] VicRp 27; [1979] VR 273. There is abundant other authority to the same effect and, contrary to the appellant's submission, the primary judge was not in error in applying that principle.

42 It is necessary to take each of the documents in question in turn.

(a) Documents which give an accurate measurement of the height difference of the slabs

43 Before the primary judge, the appellant relied upon an affidavit in which she had described how a representative of the respondent had used a mobile phone to measure the height difference between the slabs. There was attached to the affidavit a photograph discovered by the respondent showing that being done. The appellant argued before her Honour, and again on this appeal, that the respondent must have a document which contained an accurate measurement of the height difference. It is not apparent why that should be so. The conclusion of the primary judge that there were no reasonable grounds upon which she could be fairly certain that any such document existed was one that was clearly open to her. No error has been shown. (We might mention in passing that the appellant had pleaded that the height difference was 'about an inch [25 mm]' and the respondent had pleaded that it was 'some 20 mm'. It was not apparent that anything turned on that discrepancy.)

(b) Road Condition Rating Report and Road Inventory Report

44 The appellant argued, in effect, that the primary judge should have inferred that the repair work carried out to the footpath after the incident would not have been carried out unless at least one of these documents had been completed. We do not accept that. The work in question was minor and there was no evidence of any practice or procedure that required such documentation to be completed for work of that nature or any other reason to infer that such a document existed. The primary judge was entitled to find that there were no reasonable grounds upon which she could be fairly certain that such a document existed.

45 Nor, contrary to the appellant's contention, were there reasonable grounds upon which the primary judge could be fairly certain that there was in existence an 'incident report'. The respondent had discovered a document entitled 'City of South Perth Customer Request' that contained a detailed account of the incident, as apparently reported by the appellant to an employee of the respondent, and an internal request for an employee of the respondent to investigate the footpath. The appellant submitted that the respondent must also have an incident report setting out the appellant's report of the incident to the respondent. There was no basis in the evidence for that submission or any reason to believe that such a document existed.

46 It must be borne in mind that whilst the incident was undoubtedly distressing for the appellant, in the context of the respondent's overall operations it was not of such a nature, nor were the appellant's apparent injuries of such a magnitude, that it might be expected to generate substantial documentation by the respondent, at least before litigation was instituted.

47 It was submitted that the primary judge erred in stating that the appellant had conceded that a document discovered by the respondent (entitled 'Requisition for Goods/Services' and dated 15 January 2013) had satisfied the appellant's request for a 'purchase order'. Her Honour was not in error. The concession was clearly made in the hearing before her Honour (see ts 264, 273). In any event, on the evidence there were no reasonable grounds upon which the primary judge could be fairly certain that a relevant 'purchase order' existed.

48 It was submitted by the appellant that the primary judge erred in concluding there was no evidence that such a document existed. The appellant submitted, in effect, that her Honour should have inferred from the fact that the respondent had a tree management plan, and that someone had attended the location of the incident in February 2012 to carry out pruning, that comments would have been entered in the database as to what had been done on that occasion. If pruning had been carried out, it was submitted, the protruding slab would have been noticed in cleaning up the prunings and recorded on the database.

49 In our view, that submission was correctly rejected by the primary judge as being based simply upon supposition. Her Honour was entitled to conclude that on the evidence there were no reasonable grounds upon which she could be fairly certain that a document of the nature sought existed.

50 The appellant argued that as an orange barricade had been erected and dismantled by the respondent there must have been a written work order for its removal; that is, as we understand it, it is to be inferred that the work would not have been carried out in the absence of a work order. We do not accept that. There was no basis in the evidence for such an inference to be drawn and the primary judge was correct to conclude that she could not be fairly certain that such a document existed.

51 Whether this is the subject of appeal is not clear from the appellant's grounds of appeal and submission, but given the confused nature of both we will deal with it. Before the primary judge, the appellant referred to information she had obtained from the respondent that it conducted an audit of its footpaths every one to two years and she sought a copy of the report on the footpath at the location of the incident in the first audit carried out after 18 March 2012 (ts 273).

52 The primary judge observed that the existence of such a document was based simply upon an assumption that a report for every location is generated whenever an audit is undertaken or that there was something at this location to report. Her Honour was not satisfied there were reasonable grounds upon which she could be fairly certain that any such document existed. That was a finding plainly open to her Honour. It was unnecessary for her Honour to consider the relevance of such a document, if it existed.

53 The appeal is without merit. We would refuse leave to appeal and dismiss the appeal.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RANKILOR -v- CITY OF SOUTH PERTH [2016] WASCA 28 (S)

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : RANKILOR -v- CITY OF SOUTH PERTH [2014] WADC 110

Costs - Appeal dismissed - Application to set aside costs order in favour of respondent - No reason to depart from usual order as to costs

Rankilor v City of South Perth [2016] WASCA 28

1 JUDGMENT OF THE COURT: This is an application by the appellant to set aside a costs order made against her following the dismissal of her appeal.

2 On 12 February 2016, this court dismissed an appeal by the appellant from a decision of Davis DCJ in the District Court who had dismissed two appeals by the appellant, one from a decision of Deputy Registrar Harman and the other from a decision of Deputy Registrar Hewitt: Rankilor v City of South Perth [2016] WASCA 28. The appellant was ordered to pay the respondent's costs of the appeal to this court. As the appellant did not attend when the court delivered judgment on the appeal, despite having been given prior notice of the time and date of judgment delivery, an order was made that the appellant have liberty to apply by 4.00 pm on 17 February 2016 to set aside or vary the costs order.

3 In an email to the court dated 14 February 2016, the appellant said that she was in Melbourne visiting relatives and sought an extension of time to 29 February 2016 to apply to set aside the costs order. That extension was allowed.

4 The appellant's application was filed on 29 February 2016, accompanied by an affidavit of the same date. It is unnecessary to canvass the contents of the affidavit. Suffice it to say that the appellant's only material contention is that this court was in error in dismissing the appeal. That is not a basis upon which the costs order might be altered. It is a matter that, if it is to be pursued, can be pursued only by way of an application to the High Court for special leave to appeal - a course the appellant says in the affidavit that she intends to take. As matters stand, the respondent was the successful party on the appeal and there is nothing before us that might justify a departure from the usual rule that the successful party is entitled to an order for costs.