Rule 20.31
13 Rule 20.31(1) of the Rules provides:
Notice to produce document in pleading or affidavit
A party (the first party) may serve on another party (the second party) a notice to produce, in accordance with Form 39, for the inspection of any document mentioned in a pleading or affidavit filed by the second party.
14 In Rubin v Expandable [2008] 1 WLR 1099 at 1108, [24], in dealing with an English rule in relevantly identical terms, Rix LJ said:
The second matter is that, subject to my first comment, the expression "mentioned" is as general as could be. This is not to my mind intended to be a difficult test. The document in question does not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned. Subject to Mr Lightman's second point, that the mention of a document within CPR r 31.14 amounts to automatic and absolute waiver of privilege in it, which if correct would give to that rule a most important effect, I do not see why there should be need for a strict approach to a request for inspection of a specific document mentioned in one of the qualifying documents. The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?
15 Putting to one side Rix LJ's optimistic observation that the word "mentioned" was not intended to be pose a difficult question, the task remains to construe it and apply it to the facts of this case, given that the CFMMEU has taken the point.
16 In Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731 at 738-739 Slade LJ equated the similar phrase "reference is made to" in the then applicable English rule with the phrase "direct allusion to", as follows:
[The plaintiff's argument] seems to us to involve reading the phrase "reference is made to any document" as including reference by inference. This we do not regard as the natural and ordinary meaning of the phrase. To our minds, the phrase imports the making of a direct allusion to a document or documents. If the plaintiff were correct in its broad submission, this would oblige the court to enter into a process of inference and conjecture …We cannot think that this is what the makers of the rule had in mind.
In our judgment, a mere opinion that, on the balance of probabilities, a transaction referred to in a pleading or affidavit must have been effected by a document, does not give the court jurisdiction to make an order under R.S.C., Ord 24, r 10, unless the pleading or affidavit makes direct allusion to the document or class of document.
17 The Australian cases have also repeated on a number of recent occasions since the judgment of Moore J in King v GIO Holdings Ltd [2001] FCA 1487 (see in particular [20]) that there has to be a direct allusion to a document or documents, and that it is insufficient to refer to a transaction or information, even though it appears almost certain that the transaction must have been effected by, or the information contained in, a document. See Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970 at [12] per Yates J, cited by Besanko J in Apotex Pty Ltd v ICOS Corporation (No 2) [2017] FCA 589 at [18], and by Burley J in Sanofi-Aventis Deutschland GmbH v Alphapharm Pty Ltd (No 2) [2018] FCA 1630 at [8].
18 The tenth to twelfth respondents submit that the Particulars "are presented in a way that the particularised conversation is necessarily a reference to documentary content - by transcribing a recording and/or another transcription of a recording". In particular they point to:
(a) the introductory words of the Particulars, which say that "the relevant aspects of the conversation … was in the following terms";
(b) the fact that what follows are word-for-word extracts of a conversation, which cannot be the result of human memory; and
(c) the fact that at several points, the text quotes the person misspeaking and/or correcting themselves.
19 The tenth to twelfth respondents submit that "the Particulars have been presented by the direct use of the content of a document in the form of an audio or video recording (or a transcription of the recording)." In this way, they submit, the document (or class of document) has been "mentioned" in a pleading within the meaning of that phrase in r 20.31 of the Rules in either of the following senses:
(a) by incorporation by reference to the contents of the document, in the form of a transcription of the recording (or another transcription of the recording); or
(b) by a direct allusion to such a document.
20 In light of the authorities, I am unable to accept those submissions.
21 The incorporation by reference point cannot be right, because it seeks to make an end run around the word "mentioned". As the reasoning of Slade LJ in Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731, referred to above at [16], makes clear, there is no relevant distinction between a document "mentioned" and a document which "reference is made to".
22 The more difficult point is whether the Particulars make a "direct allusion" to something (a recording or a transcript of it), by impliedly, rather than specifically, mentioning it. Without turning the phrase "direct allusion" into a statutory formula, it is worth noting that the Macquarie Dictionary defines "allusion" relevantly to mean "an incidental mention of something, either directly or by implication". See Macquarie Dictionary (7th ed, 2017). That, to me, does rather suggest that if an allusion is required to be a direct one, it cannot be brought about by implication or inference, however compelling the implication or inference might be.
23 In those circumstances, in my view, the Particulars do not make a direct allusion to any recording or transcript of it, however likely it is that one or other, or both, exist.
24 The tenth to twelfth respondents also submit that the Court has broad powers under s 23 of the FCA Act and r 1.32 of the Rules to make appropriate orders for proper and efficient case management, including making orders to avoid procedural unfairness. They submit that absent r 20.31, I should make the production order as an appropriate procedural order to avoid the risk of unfairness to them in preparing their defences. I decline to do so. I am not sure what procedural unfairness they have in mind, but in circumstances where it is not necessary to plead to particulars, I do not apprehend any relevant unfairness, at least at this point. See Turner v Bulletin Newspaper Co. Pty Ltd (1974) 131 CLR 69, at 80 (per Barwick CJ, Mason and McTiernan JJ agreeing): "[The plaintiff's] particulars…are not to be pleaded to: it is, in my opinion, bad pleading to do so. The defendant by not canvassing the particulars does not admit them, nor does he admit their relevance to the establishment of the cause of action or any part of it." See also Mann v Board of Health (Australian Capital Territory) (1996) 67 FCR 383, at 391, and Note 3 to r 16.41 of the Rules ("A party does not plead to the opposite party's particulars.")