Davis v Sagar Pty Ltd, unreported; SCt of WA; Library No 980443; 10 August 1998

Rules of the Supreme Court 1971 (WA), O 26A r 5(1)

Davis v Sagar Pty Ltd, unreported; SCt of WA; Library No 980443; 10 August 1998

Expectation Pty Ltd v PRD Realty Pty Ltd [1999] FCA 1207

Jovista Pty Ltd v FAI General Insurance Co Ltd [1999] WASC 44

Martin & Miles Martin Pen Co Ltd v Scrib Ltd (1950) 67 RPC 127

McCarthy v Dolpag Pty Ltd [2000] WASCA 106

1 MASTER NEWNES: I have before me two applications by the plaintiff for non-party discovery. The applications are opposed by the defendant and by the non-parties to which they are directed.

2 It is necessary, in order to put the applications in context, to refer briefly to the issues in the action.

3 In the statement of claim, the plaintiff pleads that both he and the defendant are and were at all material times qualified to practice, and practised, as specialist orthopaedic surgeons. The defendant is a member of the Royal Australasian College of Surgeons (the "College"), but the plaintiff is not.

4 It was a function of the College to approve from time to time certain training hospitals in Australia as being eligible institutes for the training of orthopaedic surgeons who were candidates for admission to membership of the College.

5 The Australian Orthopaedic Association (WA) Inc ("AOA") was an incorporated association located in Western Australia whose members were orthopaedic surgeons practising in Western Australia who were members of the College. The defendant was a committee member of the AOA.

6 Fremantle Hospital (the "Hospital") is, and was at the relevant time, owned and operated by the State of Western Australia and was an eligible hospital approved by the College for the training of orthopaedic surgeons who were candidates for admission to membership of the College.

7 The Hospital employed orthopaedic surgeons, provided facilities for the training of trainee orthopaedic surgeons and employed trainee orthopaedic surgeons ("registrars"), including trainees who were candidates for admission to the College.

8 In or about June 2002, the plaintiff commenced employment at the Hospital as a specialist orthopaedic surgeon. The plaintiff alleges (but the defendant denies) that it was a usual incident of the employment of a specialist orthopaedic surgeon at the Hospital that that surgeon would participate in the training of registrars at the Hospital. (The defendant, on the other hand, pleads that such training was only an incident of the employment of orthopaedic surgeons who were members of the College and the AOA.)

9 The plaintiff's claim in defamation arises out of a letter written by the defendant to the director of medical services at the Hospital on or about 2 July 2002. The letter concerned the training of registrars at the Hospital, in circumstances where the plaintiff was not a member of the College or the AOA.

10 The plaintiff says the letter was defamatory of him in a number of respects. It is unnecessary for present purposes to set those out.

11 The plaintiff also says that the purpose of the defendant in sending the letter was to put pressure on the Hospital to discriminate in their employment practices against specialist orthopaedic surgeons who were not members of the College and therefore substantially to lessen the competition in the market for the services of specialist orthopaedic surgeons in the Perth metropolitan area.

12 The plaintiff also alleges that in sending the letter the defendant intended to interfere in the carrying on by the plaintiff of his profession as a specialist orthopaedic surgeon and to cause economic harm and mental distress to him. The plaintiff alleges that the defendant thereby interfered by unlawful means in the conduct of the plaintiff's profession. The plaintiff alleges that the defendant is in breach of Pt IV of the Trade Practices Act 1974 (Cth).

13 The defendant denies that the letter was defamatory and further says that, if it was, it was published on an occasion of qualified privilege. In respect of the defence of qualified privilege, it is pleaded that the defendant, as chairman and a committee member of the AOA, had a common interest with the State of Western Australia, as operator of the Hospital and the employer of registrars at the Hospital who were candidates for admission to the College as Fellows, in ensuring that those registrars upon completion of their training would be eligible to join the College as Fellows and that the Hospital retained its status as an eligible institution for that purpose.

14 The defendant denies that he interfered with the plaintiff's employment as alleged or that he was in breach of the Trade Practices Act.

15 The plaintiff seeks, by these applications, orders that each of the College and the AOA give discovery of any of the following documents which are or have been in their possession, custody or power:

"1. Applications by the Plaintiff for Membership of the College and documents relating to the processing and determination of those Applications.

2. Applications of the Plaintiff in relation to selection for training under a program for training of Orthopaedic Surgeons and all documents relating to the processing and determination of those Applications.

3. Documents evidencing communications between:

(b) the AOA or College and any hospital or medical practitioner,

relating to the Plaintiff's Applications referred to in paragraphs 1 or 2 above or his non-membership of the College.

(e) Representatives or other officers or representatives of the College or AOA,

and the Health Insurance Commission relating to the Plaintiff.

6. Correspondence or other documents evidencing communications concerning the Plaintiff between the AOA and/or the College and:

The plaintiff also seeks an order that the College give discovery of the following documents:

"7. Correspondence or other documents evidencing communications concerning the Plaintiff between AOA and/or the College and any other party or institution subsequent to the letter from Vin Masano to the Plaintiff's solicitor of July 2000."

16 In the plaintiff's written outline of submissions it was submitted that the defendant had not discovered certain documents, and discovery of those documents was sought from the non-parties. Those documents were, first, the minutes of a meeting held on 10 August 1998 of the Board of Studies Selection Committee (WA Branch), which the plaintiff said "would have been a preliminary review of the applicants and the application [sic], the number of positions available, and how the selection process was to proceed"; secondly, various documents which it was contended would ordinarily have been considered at a meeting of the selection committee held on 18 August 1998; thirdly, the defendant's "committee deliberations of April or May 2002", on the basis that no minutes of such committee meetings or deliberations have been discovered by the defendant; and fourthly, documents relating to the processes in respect of which the ACCC has taken the view that the College's conduct is a matter of public interest, as reflected in its authorisation of 30 June 2003 by which it granted to the College authorisation for its selection processes, including for selecting basic and advanced surgical trainees for a period of six years. I should say that there is no mention of any of those meetings, or of the ACCC authorisation, in the pleadings.

17 It was submitted on behalf of the plaintiff that par 26(d) of the defence - relating to the qualified privilege plea - had put in issue how the College assesses the eligibility of registrars for admission to the College and all documents relating to the processing and determination of applications for fellowship, particularly those relating to applications made by the plaintiff, were therefore relevant to a matter in issue.

18 It was submitted that par 37 of the defence - which refers to a particular passage in the defendant's letter of July 2002 - had put in issue the intention behind a reference in the letter to the "withdrawal of Registrars". All documents evidencing communications between the defendant and the AOA and/or the College, including minutes of meetings, were therefore relevant to the matters in issue.

19 It was submitted that par 19 of the statement of claim - which pleads that the purpose of the letter was to put pressure on the Hospital to discriminate against specialist orthopaedic surgeons who were not members of the College - put in issue whether the defendant published the letter for an indirect or improper motive. Accordingly, all documents evidencing communications between the defendant and the AOA and/or the College, including minutes of meetings, were therefore relevant to a matter in issue.

20 It was submitted that par 20 of the statement of claim - which pleads that the defendant intended to interfere in the plaintiff's profession as a specialist orthopaedic surgeon and to cause him economic harm and mental distress - and the defendant's defence of qualified privilege, had put in issue the defendant's intention in writing the letter. As, by the defence of qualified privilege, the defendant claimed to have acted on behalf of the AOA and the College in writing the letter, minutes and internal correspondence of the AOA and the College, and any other documents relating to the defendant's alleged authority, were relevant to a matter in issue. I should say that that category of documents is not expressly sought in the applications.

21 It was contended that par 21 of the statement of claim - which pleads that by the letter the defendant had interfered in the conduct of the plaintiff's profession as a specialist orthopaedic surgeon by unlawful means - made relevant documents relating to how the College and the AOA had previously treated the plaintiff in his profession.

22 Counsel for the plaintiff argued that the claim by the plaintiff for aggravated and exemplary damages put in issue whether the defendant had engaged in "wanton conduct". That raised the issue of the past treatment of the plaintiff's applications for membership of the College, and all those applications and related documents were therefore relevant.

23 There was some contention in the course of argument as to the extent of the entitlement of the defendant to oppose the application. I was informed, however, by Senior Counsel for the defendant that he was also instructed to appear for the AOA and the College so, for all practical purposes, that issue fell away.

24 It was submitted on behalf of the defendant and the non-parties that the ambit of the documents sought in the applications was far too wide. Each of the categories of documents sought was unlimited in time and was not limited by reference to any issue that might be relevant in the action.

25 More specifically, Senior Counsel submitted that none of the documents which related to previous applications by the plaintiff for membership of the College or the AOA were relevant to any matter in issue. The action concerned the letter of July 2002 and each of the causes of action pleaded related directly to that letter. There was nothing which brought into relevance any documents relating to previous applications by the plaintiff for membership of the College. It was not in issue between the parties that the plaintiff was not a member of the College or the AOA. That fact was pleaded by the plaintiff and admitted by the defendant.

26 The only reference to previous applications by the plaintiff appeared in par 6 of the defence, in which the defendant admitted that the plaintiff is not and had never been a member of the College and went on to say "in amplification of that admission that the Plaintiff in the past unsuccessfully sought membership of the College, but was rejected". It was submitted that that did not open up the earlier applications. Apart from the express admission, the plea in par 6 did not go anywhere. Senior Counsel for the defendant accepted that the part of the plea in question was irrelevant and could probably be struck out, although that step had not been taken.

27 It is necessary, in order for a party to succeed on an application of this nature, for the party to demonstrate that there are reasonable grounds for believing that the non-party had, has, or is likely to have had or to have, possession of documents that relate to a matter in question in the action: O 26A r 5(1).

28 The applicant must specify the documents sought with a sufficient degree of particularity that the non-party can readily identify those documents, bearing in mind that it is not to be expected that the non-party will be familiar with the matters in issue in the action: see Davis v Sagar Pty Ltd, unreported; SCt of WA; Library No 980443; 10 August 1998; Jovista Pty Ltd v FAI General Insurance Co Ltd [1999] WASC 44 at [7].

29 Moreover, an order for discovery against a non-party will not be made as a matter of course. In McCarthy v Dolpag Pty Ltd [2000] WASCA 106, the Full Court said in relation to an application for discovery from a potential party:

"There is no doubt that caution must be exercised before making an order and that such orders should not be made as a matter of course. They should only be made when reasonably necessary to achieve the proper administration of justice: Tipperary Developments Pty Ltd v Western Australia [1999] WASC 62; (1999) 21 WAR 250, per Parker J at 24; O'Sullivan v Herdmans Ltd [1987] 3 All ER 129 at 135 - 6. It must be remembered that discovery 'constitutes a very serious invasion of privacy and confidentiality [and] the process should not be allowed to place upon a litigant any harsher or more oppressive burden than is strictly required': Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 308 per Lord Keith of Kinkel; and this is a fortiori the position where the discovery is sought before action and is for the purpose of determining whether or not there is an issue to litigate."

30 In my view, those considerations apply with at least equal force to an application for discovery against a non-party. The privacy of a person is not to be invaded for the purposes of litigation in which that person is not involved unless the applicant establishes that it is reasonably necessary to do so in order to achieve the proper administration of justice.

31 It is not in issue between the parties that the plaintiff is not, and has never been, a member of the College. What, in essence, is sought by the plaintiff are documents relating to the plaintiff's application for membership of the College, or communications or other documents relating to such applications. Having regard to the matters pleaded, I am not satisfied that there is any, or at the least a sufficient, connection between the documents relating to the plaintiff's previous applications for membership of the College and the matters in issue in the action. Moreover, the documents sought in the applications are, as Senior Counsel for the defendant and the non-parties submitted, not limited in time nor, in relation to categories 4, 5 and 6, are they limited by reference to any particular subject-matter beyond the fact that they relate in some way to the plaintiff.

32 On the pleadings, the only matter relating to a previous application by the plaintiff for admission to membership of the College is contained in par 6 of the defence, in the "amplification" of the admission to which I have referred above. In my view, that "amplification" is irrelevant, and so much was effectively conceded by Senior Counsel for the defendant. The fact that irrelevant material is pleaded does not give rise to an entitlement to discovery of documents, even against the other party to the action.

33 In Martin & Miles Martin Pen Co Ltd v Scrib Ltd (1950) 67 RPC 127 the defendant had made allegations in its defence that the Court concluded were irrelevant to the issues in the action but which the plaintiff had not applied to strike out. The defendant sought discovery of documents relevant to those allegations. Discovery was refused. Jenkins LJ, with whom Asquith LJ agreed, said (at 131):

"The object of discovery is to assist the proper determination of the relevant issues between the parties. It is not open to a defendant to enlarge the area of discovery indefinitely by making irrelevant allegations. The Court must be satisfied that the documents of which discovery is sought are relevant to the matters properly in issue in the action and are not merely made relevant by the inclusion by a defendant in his pleadings of irrelevant matter which, even if substantiated, could not affect the result of the action. ..."

See also Expectation Pty Ltd v PRD Realty Pty Ltd [1999] FCA 1207.

34 While those were cases where the irrelevant allegation had been pleaded by the party who sought discovery, in my view, at least in respect of an application for discovery by a non-party, it is irrelevant by which party the irrelevant allegation has been pleaded. On an application of this nature, discovery will not be ordered in respect of an irrelevant allegation which, even if substantiated, could not affect the result of the action.

35 In the present case, I consider that the part of the plea in par 6 of the defence which is relied upon is irrelevant, or at the least not sufficiently relevant, to justify an order for discovery by either non-party in relation to it.

36 I do not accept the submission by counsel for the plaintiff that par 26(d) of the defence makes relevant "documents concerning the processing and determination of applications for fellowship of the College, particularly those concerning the plaintiff."

37 The allegation in par 26(d) is pleaded in support of the defence of qualified privilege. Relevantly, it is there pleaded that the defendant prepared and published the letter to the medical director of the Hospital for the purpose of "resolving by dialogue with the operator of Fremantle Hospital the issue as to whether the carrying out of the current training of Registrars at Fremantle Hospital was being conducted by orthopaedic surgeons who were Fellows of the College, in accordance with College training requirements, to ensure that such Registrars upon completion of their training, would then be properly eligible for admission as Fellows of the College".

38 In the course of argument Senior Counsel for the defendant conceded (in my view, correctly) that any document containing the College's training requirements for eligibility for membership of the College would be relevant but, as he pointed out, no identifiable request for such a document had been made in the applications. In my view, there is nothing in the plea in par 26(d) which makes relevant any of the broad categories of documents sought by the plaintiff.

39 I do not accept the submission on behalf of the plaintiff that the plea in par 37 of the defence makes relevant "all documents evidencing communications between the defendant and the AOA and/or College, including minutes of meetings".

40 The plea in par 37 is in response to an allegation in the statement of claim that the defendant had acted in a manner likely to have the effect of substantially lessening competition in the market by implying in par 2 and par 4 of the letter that the AOA would withdraw registrars from the Hospital if the Hospital employed surgeons who were not members of the College. Paragraph 37 of the defence pleads that the reference in the letter to the withdrawal of registrars was not a reference to the withdrawal of currently employed registrars but a reference to the future employment of registrars in the context of a question as to the ongoing eligibility of the Hospital to remain accredited by the College as a training hospital.

41 I must say that I am quite unable to see how that issue makes relevant such a broad category of documents. If the documents sought were intended to be limited to those relevant to the parts of the letter referred to, no such limitation (which would need to be clear and explicit) was suggested.

42 Similarly, I do not consider that the pleas in par 20 and par 21 respectively of the statement of claim have made relevant, or sufficiently relevant, any of the broad categories of documents of which discovery is sought.

43 I understood Senior Counsel for the defendant to accept (again, in my view, correctly) that any documents in the possession of the AOA or the College which went to the authority of the defendant to write the letter of 2 July 2002 in his capacity as chairman and a committee member of the AOA, were relevant to the plea of qualified privilege. But again the applications do not specify such documents. They were first identified in the plaintiff's written outline of submissions.

44 I do not accept the plaintiff's contention that the claim for aggravated and exemplary damages makes relevant any documents in the possession of the AOA or the College which show how those organisations have treated past applications by the plaintiff for membership. The claim for aggravated and exemplary damages expressly relies upon the allegations that the purpose of the defendant in sending the letter was to put pressure on the Hospital to discriminate against orthopaedic surgeons who were not members of the College and to interfere in the plaintiff's profession and cause him economic harm and mental distress. As the plea for aggravated and exemplary damages is formulated, I do not consider there is any foundation for the assertion that the documents sought are relevant to that plea.

45 In my view, the application as it stands must fail. The plaintiff has fallen well short of establishing sufficient grounds for requiring the non-parties to give discovery of any of the categories of documents sought in the applications.

46 No application was made by the plaintiff to amend the applications to seek discovery of the two relatively narrow categories of documents which, in the course of argument it was acknowledged by Senior Counsel for the defendant and non-parties, were relevant, namely any documents which go to the authority of the defendant to write the letter of 2 July 2002 on behalf of the AOA, and any documents containing the College's training requirements for eligibility for membership of the College. The former category, however, was raised in the plaintiff's written submissions prior to the hearing and canvassed in argument, and I would be prepared to make an order that the non-parties give discovery of any documents in that category which are in their possession.

47 I will hear the parties on the appropriate form of orders and on the question of costs.