Con Ange v Fairfax Media Publications Pty Ltd & Ors

Con Ange v Fairfax Media Publications Pty Ltd & Ors - [2010] NSWSC 1200 - NSWSC 2010 case summary — Zoe

[12]

Procedural background 5 On 30 July 2009, which was the day upon which they filed a notice of appearance, Fairfax filed a notice of intention to elect for trial by jury in accordance with s 21(2) of the Defamation Act 2005. 6 There have been various interlocutory applications which have been heard and disposed of by Nicholas J and Simpson J. As a consequence of these applications, both of the pleadings have been amended and they are now, so far as the issues relevant to this application are concerned, in their final form. 7 Since 12 November 2009, there have been orders made by the Court on six separate occasions that the plaintiff, Mr Ange, is to serve a verified list of documents by way of discovery by specified dates. Only the last of those has been the subject of apparent compliance. 8 The verified list, which was served on 6 August 2010, listed only a number of newspaper articles published variously by the Sydney Morning Herald, the Daily Telegraph, and the Age Newspapers in the period from 21 May 2009 to 17 March 2010. 9 On 6 September 2010, Fairfax made an application to Simpson J in the Defamation List for various orders to deal with the adequacy of discovery including an order for the cross-examination of the plaintiff on his affidavit which verified the list of documents of 6 August 2010. 10 On the same day, Mr Ange made an application to the Court that the Court should dispense with a jury and proceed to a hearing of the matter without a jury. 11 Simpson J gave procedural directions to ensure that the matters were ready for hearing. The motions seeking orders with respect to discovery and also the dispensing of the jury came on for hearing before the Court on Friday, 5 November 2010. 12 On that day, the hearing of the motions was completed. With respect to the question of whether or not the jury ought be dispensed with I reserved my decision. With respect to the application for orders relating to inadequate discovery, I made orders which determined the application, but indicated that I would give reasons in due course. 13 This judgment provides the reasons for the making of the orders with respect to discovery which were made on Friday, 5 November 2010. I will deliver a separate judgment in respect of the jury application.

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Court's Power to Order Discovery 26 Rule 21.2 of the UCPR deals with the provision of discovery. The rule specifically provides for discovery of documents within a class or classes specified in the order for discovery. 27 Specifically, r 21.2(3)(c) permits the Court to specify the class of documents in a manner which it considers appropriate. 28 The order for discovery which the Court made with the consent of both parties was, so it seems to me, in the nature of an order for general discovery. It is clear that Mr Ange's solicitors so regarded it. 29 Whilst the order was perhaps vulnerable on that account, no submission was made that it ought to be wholly set aside. Commendably, Mr Smark SC, who appeared with Ms Chrysanthou for Mr Ange, accepted that an order for discovery might be made properly within the rules, and did not engage in an arid debate merely about the form of the order. He was content to proceed with submissions which addressed the substance of the issues. 30 Accordingly, there is no need for me to express any concluded view as to whether an order for general discovery is any longer permissible under the UCPR. 31 It is important to note however that r 21.2(4) prohibits an order for discovery being made in respect of a document unless "… the document is relevant to a fact in issue". 32 This rule reinforces the underlying proposition with respect to all discovery, namely, that discovery is only appropriate with respect to documents which are relevant to the issues joined between the parties, or else relevant to a fact in issue. 33 The phrase "relevant to a fact in issue" which is included in r 21.2(4) is defined in r 21.1(2) in the following terms: "(2) For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence." 34 There are no specific rules in the UCPR dealing with situations which may arise where one party asserts that the discovery provided by the other party is inadequate. The two remedies commonly encountered for such circumstances are:

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38 In Proctor & Gamble Australia Pty Ltd v Medical Research Pty Ltd [2001] NSWSC 183 at [64], Hunter J summarised the principles for granting an order for further discovery as follows: "The affidavit verifying discovery is conclusive of the question unless it can be shown (i) by recourse to the documents discovered; (ii) from the content of the affidavit verifying discovery; (iii) from the pleadings, or "from any other source that constituted an admission of the existence of a discoverable document" that the discovery has been insufficient. Further, where the discovering party has misconceived the nature of the obligation of discovery it is not necessary to infer the existence of relevant documents other than those discovered…" 39 The principles were further discussed by Hoeben J in Preston v Star City Pty Limited [2007] NSWSC 293 at [21]: "Although the basic rule remains that an affidavit of discovery is conclusive, some exceptions to that rule have been recognised by the common law and by the rules of court ( Mulley v Manifold (1959) 103 CLR 341, Fruehouf Corporation Pty Limited v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359). Those exceptions are narrow and require that the insufficiency of the affidavit of discovery appear either from the documents themselves or from any other source that constitutes an admission of the existence of a discoverable document. In applying one of those exceptions the court has to "on the face of it or from admissions in other documents … have reasonable grounds for being fairly certain that there were other relevant documents which ought to have been disclosed …" ( British Association of Glass Bottle Manufacturers Limited v Nettlefold (1912) AC 709 at 714, Beecham Group Ltd v Bristol Myers Co (1979) VR 273 at 276)." 40 The same principles were applied by James J in Economos & Co Pty Ltd v Bowlers Club of NSW Ltd [2000] NSWSC 1065 at [45]-[67], by Harrison J in NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2008] NSWSC 472 at [11], by R.A. Hulme J in Adelaide Bank Ltd v Property Builders Pty Ltd [2009] NSWSC 1147 at [20]-[38], and by Einstein J in Ace Hire Aust Pty Limited v ADI Limited [2006] NSWSC 969, in circumstances which may have some similarity with the current proceedings. 41 I note that Giles J in Fruehauf (at 366F) expressed his disquiet as to whether the "old Chancery aversion to a "conflict of affidavits" was a proper justification for limiting the investigation with which the matter before him was concerned. 42 For my part, particularly in light of the provisions of s 56 of the Civil Procedure Act 2005 and the extensive use of the modern tools of case management to ensure that the real issues in dispute are addressed in a cost effective manner, I share in the disquiet of Giles J. I see no compelling reason to accord to an affidavit verifying a list of documents by way of discovery any special status. Proper compliance with a party's obligations of discovery under the overall supervision of the Court is an important and necessary part of modern litigation. The Court has the capacity to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous. 43 That said, it is appropriate in determining this application that I pay regard to the existing authorities.

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The Obligations of Discovery 48 Shortly put, it is the obligation of a party, when ordered to give discovery, to provide a list in the appropriate form of all documents which are relevant to the issues in the proceedings or else to a fact in issue in the proceedings. 49 The term document is not interpreted narrowly. It includes both a part of a document which might be relevant, and a copy of any document which might be relevant: see UCPR Dictionary. As well the term is caught by the meaning attributed to it in the Interpretation Act 1987. Section 21 relevantly provides: "Document means any record of information, and includes: (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or (d) a map, plan, drawing or photograph." 50 This definition is sufficient to encompass documents held in electronic form, as well as paper documents. It is sufficient to include emails, and other forms of electronic communication. 51 The obligation to provide discovery extends to documents which may not be admissible in proceedings. In other words, the obligation is not constrained by the same considerations which apply to the admissibility of evidence in the ultimate hearing of the proceedings in Court: Ferguson v Mackaness Produce Pty Ltd [1970] 2 NSWR 66 at 68 per Macfarlan J. 52 The term "possession" includes power and control: see s 3 of the Civil Procedure Act. Although that definition is applicable to the term as used in the Act, it would be anomalous to interpret the term in any other way in the UCPR in the absence of any contrary provision in the UCPR. The usual principles of statutory interpretation including those of coherence and concordance in the interpretation of the principal statute and the subordinate legislation are sufficient to justify this approach. 53 Accordingly, the obligation falling on a party is to include documents in a verified list provided by way of discovery, which are not only in the possession of the party, but also in its power and control.

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