Di Genova v Lefkovits [2004] VSC 491

Supreme Court of Victoria|2004-12-01|Before: KAYE J.

ADMINISTRATIVE LAW - Review of a decision of Medical Panel - Application for discovery of notes of Medical Panel - Accident Compensation Act 1985 s.48(2), 65(3).

The plaintiff, Louis Di Genova, was employed by the fifth defendant, Precision Plating Pty Ltd ("Precision") from about 1991 to 2000 as a metal polisher. Subsequently he returned to perform part-time work for Precision from 2001 to 2002. On 4 August 2002 the plaintiff made a claim for lump sum benefits pursuant to s.98C and/or s.98E of the Act. He claimed that he had suffered diffuse pulmonary fibrosis together with emphysema arising out of his employment with Precision. That claim was rejected. Accordingly, he commenced proceedings in the Magistrates' Court at Melbourne against Precision, claiming compensation under the Act. Precision defended the proceedings and filed a defence. On an application by the defendant, the magistrate referred two medical questions to a Medical Panel pursuant to s.45(1)(b) of the Act. The two medical questions which were referred were:

1. What is the plaintiff's medical condition relevant to the injury alleged to be diffuse pulmonary fibrosis together with emphysema?

2. Was the plaintiff's employment in fact, or could it possible have been, a significant contributing factor to the injury?

A medical panel was appointed to consider those questions. The panel consisted of Dr Robert Lefkovits, Dr Abraham Rubinfeld and Dr Jonathon Burdon, who are respectively the first, second and third defendants in these proceedings. Pursuant to s.65 of the Act certain material was provided to the panel. The plaintiff attended for medical appointments with the three members of the panel. By a certificate of opinion dated 1 April 2004, the panel answered the first question by stating that the plaintiff was suffering diffuse pulmonary fibrosis, of late onset, due to interstitial lung disease associated with pleural plaques and from emphysema, but neither of those conditions were relevant to any injury with Precision. The panel answered the second question by stating that the plaintiff's employment was not, nor could it have been, a significant contributing factor to the injury.

In response to a request by the plaintiff's solicitors, the panel, on 16 April 2004, provided "Reasons for Opinion". For present purposes two passages from those reasons are relevant. On the first page of its reasons the panel stated:

"He (the worker) worked for a variety of companies over the next 20 years, performing metal polishing work, often in environments where he would find himself coated in dust from the abrasives that were used in the polishing process. His last position in the workforce was when he was employed by Precision Plating where he had worked from 1991 through to 2000. The worker specifically commented that the dust extraction system at his last position in the workforce was of a high standard, unlike the environment in previous positions in the workforce."

"The panel considers it is possible that there may be a contribution to the development of interstitial fibrosis as a consequence of exposure to dust and in particular cobalt dust and possibly asbestos, but that this exposure would have occurred prior to his employment with Precision Plating."

Upon receipt of those reasons the plaintiff made application to the Supreme Court, pursuant to s.4 of the Administrative Law Act 1978, for review of the decision of the medical panel. The plaintiff swore an affidavit in support of that application. In paragraph 19 of his affidavit the plaintiff denied that he told the medical panel that the dust extraction system at Precision was of a high standard. In fact the dust extraction system was barely effective between 1991 and 1995. Although it was cleaner after 1995, there were times when the system was turned off. In paragraph 21 of his affidavit the plaintiff stated that he remembered telling at least one of the medical panel that the extraction system was greatly improved compared to before 1995, but that it was still dusty and dirty and that not all the dust would be sucked up by the extraction system.

By order dated 17 May 2004, Master Wheeler ordered that the defendants show cause before the court why the decision of the medical panel should not be reviewed. In paragraph 3 of the section of the order entitled "other matters", the Master set out three grounds (each with a number of sub-grounds) on which that order was made. For present purposes ground (b) is relevant. It recites:

"(b) The tribunal erred in law by taking into account matters it was not entitled to take into account, namely the incorrect work history allegedly taken from the appellant (plaintiff) at medical examinations taken by them, see

(i) the appellant's s.65(6A) statement dated 5 February 2004;

(ii) paragraphs 19 to 22 of the appellant's affidavit."

By a summons dated 20 October 2004, the fourth defendant (Victorian WorkCover Authority) and the fifth defendant (Precision) applied for an order for discovery of all the handwritten, typed or computer generated notes made by the members of the medical panel. On 15 November 2004 Master Wheeler refused that application. The Master ordered that any appeal against that order be returnable before the trial judge.

The first, second and third defendants were represented before me by Mr D. Masel. Consistent with the statements by the High Court in The Queen v The Australian Broadcasting Tribunal and others; ex parte Hardiman and ors[1], those defendants do not intend to assume a role of protagonists in the proceeding. However, the first three defendants did participate in the appeal from the order of Master Wheeler, and intend also to apply to have set aside subpoenas which have been served on the three defendants. In addition, a notice has been served on the solicitors of the first defendant requiring him to attend for cross-examination.

When the matter came before me, Mr J. Noonan SC who appeared with Mr M. Fleming on behalf of the fourth and fifth defendants, submitted that I should hear first, as a preliminary matter, a submission that ground 3(b), set out in the order of Master Wheeler, is not an appropriate ground for judicial review. Mr Noonan submitted that if that point were decided in the favour of his clients, it would not be necessary to persist with the appeal from the order of Master Wheeler on the issue of discovery. In response Mr M. O'Loghlen QC, who appeared with Mr I. Miller on behalf of the plaintiff, opposed that course. After discussing the matter with counsel, I declined Mr Noonan's application to deal with the issue relating to ground 3(b) as a preliminary matter. The course suggested by Mr Noonan did have some attraction. In particular, I have some doubt whether ground 3(b) identifies a jurisdictional error, as foreshadowed by Mr O'Loghlen; compare Craig v The State of South Australia[2]; The Returned and Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commissioner and anor [3]. Nevertheless, for reasons which I explained during discussion with counsel, I did not consider it appropriate to deal with that issue first.

It is therefore for me to consider the appeal by the fourth and fifth defendants from the order of Master Wheeler of 15 November refusing their application for discovery. Mr Noonan contended that, on the assumption that ground 3(b) in the Master's order of 17 May identifies a reviewable error, the documents sought on discovery are relevant to the factual issue raised by that ground. In particular, the documents are relevant to the question whether the plaintiff told the medical panel the matters which are set out in the panel's reasons and which I have referred to above. These proceedings were not commenced by writ. Accordingly, the fourth and fifth defendants are not entitled to discovery as of right, but must seek leave of the court; see Rule 29.07(2) of the Rules of the Supreme Court. In support of that leave Mr Noonan pointed out that his clients were not in a position to know what the plaintiff told the members of the medical panel. The fourth and fifth defendants have no other means of eliciting that knowledge. Accordingly, in the interests of justice, it is appropriate that an order for discovery be made in the form sought on the appeal.

Mr Masel opposed the order for discovery on a number of grounds, which can be condensed into five grounds, namely:

(1) There was no occasion to seek discovery, as ground 3(b) does not amount to an allegation of error of law on the face of the record.

(2) There would be no utility in ordering discovery. Any document obtained on discovery could not be admitted in evidence in these proceedings because of the operation of s.65(3) of the Accident Compensation Act 1985.

(3) Any order for discovery would offend s.48(2) of the Accident Compensation Act, since to require an affidavit of documents would be to compel the panel to give evidence.

(4) As a matter of discretion the application by the fourth and fifth defendants was made late, and in disregard of an order of Byrne J of 15 June 2004. If the appeal were to succeed the hearing of the substantive proceeding would need to be adjourned.

(5) As a matter of policy the order should not be made. The intent and scheme of the Accident Compensation Act is to ensure confidentiality of information imparted to the medical panel. Further, the order sought would encourage the panel to enter into the fray, contrary to the strictures of the High Court in Hardiman's case (above).

Mr O'Loughlen, on behalf of the plaintiff, supported the third, fourth and fifth grounds argued by Mr Masel.

I have already declined Mr Noonan's invitation to consider, as a preliminary point, whether ground 3(b) identifies an allegation of an error of law on the face of the record or a jurisdictional error, which would attract judicial review. Accordingly, I would not refuse to order discovery on the first basis argued by Mr Masel.

The second contention by Mr Masel is based on s.65(3) of the Accident Compensation Act. That section provides:

"(3) Information given to a Panel cannot be used in any civil or criminal proceedings in any court or tribunal, other than proceedings -

(a) before the County Court, the Magistrates' Court or the Tribunal under this Act or the Workers Compensation Act 1958;

(b) for an offence against this Act or the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958;

(c) for an offence against the Crimes Act 1958 which arises in connection with a claim for compensation under this Act."

Mr Masel submitted that if discovery were obtained of the notes of the medical panel concerning the information given to the panel by the plaintiff, the use of those notes in this proceedings would be precluded by s.65(3) of the Act. Accordingly, he submitted that there was no utility in ordering discovery of the notes.

The short answer to Mr Masel's contention is that discovery may be obtained of a document, notwithstanding that that document may not be admissible in evidence; Hutchison v Glover[4]; Commonwealth of Australia v Northern Land Council[5]; Esso Australia Resources Limited v Commissioner of Taxation[6]. Thus in Hutchison v Glover Blackburn J, delivering judgment for the Court of Queens Bench, stated:

" ... it is objected that it is not clearly shown that the document would be evidence for the plaintiffs. But the fact whether a document would be evidence or not for the party claiming inspection is not a test of the right to it. Everything which will throw light on the case is prima facie subject to inspection."

The fact that the document may not be admissible in evidence is of course relevant to the discretion which I have whether to order a discovery of the documents. However, even if I were to conclude that s.65(3) of the Act precluded the use of the documents in evidence, that conclusion, as a discretionary factor, would be outweighed by the matters adverted to by Mr Noonan, and in particular by the fact that the fourth and fifth defendants are necessarily without any means of knowledge as to what was imparted to the medical board by the plaintiff. Without access to the documents of which discovery is sought, the fourth and fifth defendants are at a disadvantage in respect of the factual issue raised by ground 3(b) of the order of Master Wheeler of 17 May. Thus even if I were to conclude that s.65(3) of the Act precluded the use of the document in evidence, I would not consider that that factor should persuade me not to order discovery of the document.

The conclusion which I have reached on Mr Masel's second submission makes it unnecessary for me to express any view whether s.65(3) precludes the use of the information, contained in the medical panel's notes, in the proceedings before me. I am reluctant to express my views on that difficult question, particularly since, at this time, I am involved hearing another part-heard matter, and may not be able to hear the trial of this case. However, the matter was argued fully before me and the parties are entitled to my views in relation to it. I would consider that those views would bind me if the matter returned to me for the trial of the proceeding. However, they are obiter dicta, which would not necessarily bind any other judge who heard this matter.

On a strict literal construction, s.65(3) is expressed in terms which would preclude the use of any information contained in the medical panel's notes, which was imparted to the medical panel by the plaintiff, in evidence in these proceedings. The opening part of s.65(3) proscribes the use of such information "in any civil or criminal proceedings in any court or tribunal." The proceedings before me do not fall within any of the three specific exceptions to s.65(3).

Mr Noonan relied on two principal submissions to contend that I should not adopt such a literal construction of s.65(3). First, he contended that, taken literally, s.65(3) would place an embargo on the use in any other litigation of any information provided to the panel. Thus, he contended, if s.65(3) were to be construed literally, medical reports which had been obtained for other purposes but which had been provided to the medical panel could not later be used in any proceedings, other than those specified in exceptions to s.65(3). Secondly, Mr Noonan contended that s.63(1)(c) of the Accident Compensation (Miscellaneous Amendment) Act 1998 has specifically preserved the jurisdiction of the Supreme Court to review proceedings of a medical panel. Mr Noonan relied on the principle that the legislature should not be presumed to have overthrown fundamental rights by using general words of prohibition in a statute: see for example Potter v Minahan[7]. Mr Noonan contended that if s.65(3) did apply to proceedings in the Supreme Court for judicial review of a medical panel, the parties would be precluded from calling evidence concerning a number of matters which might otherwise be the subject of review. For those reasons, Mr Noonan contended that s.65(3) should not be construed as applying to proceedings in this court for judicial review of a medical panel.

In my view, the submissions made by Mr Noonan are correct. It is well-established that the processes of the medical panel may be the subject of judicial review by this court; Masters v McCubbery[8]. Indeed, as Mr Noonan pointed out, s.63(1)(c) of the A_ccident Compensation (Miscellaneous Amendment) Act_ 1997 was expressed to preserve that jurisdiction of the Supreme Court. The law favours a narrow construction of statutes which, in their literal terms, might otherwise restrict or exclude a right of judicial review; see for example Magrath v Goldsbrough Mort and Co Limited[9]. If s.65(3) applied to cases of judicial review of the decision of a medical panel, it would limit the ambit of review, and may conceivably preclude review, in some cases. For example, in cases in which allegations of bias and other breaches of natural justice are made, the issue of what information was given to a panel may be particularly relevant. Section 65(3) does not in express terms refer to proceedings by way of judicial review. The apparent intention of s.65(3) is to preclude the use of information imparted to a panel in any other civil or criminal proceedings (apart from those specified in the three exceptions), so that the person imparting that information can do so without thereby suffering any adverse consequence in any other proceeding. That purpose would not be undermined if s.65(3) were construed so as not to apply to proceedings for judicial review of the decision of the medical panel. The legislative purpose of s.65(3) is not served by precluding the use of the information, given to the medical panel, in proceedings for review of the procedures of the medical panel. Accordingly, it is my view that s.65(3) would not preclude the use, in the present proceedings, of information given by the plaintiff to the medical panel.

If in fact s.65(3) were to proscribe the use of such information in these proceedings, then it would also preclude, at the very least, the plaintiff giving evidence in the current proceedings as to what he told the medical panel. In my view, and despite the contention of Mr O'Loughlen to the contrary, it would also preclude the plaintiff from denying that he told the medical panel the matters which are set out in the medical panel's Reasons for Opinion. In light of that, Mr O'Loughlen contended that s.65(3) does not preclude the use of information, given to the panel, in these proceedings, because if it were construed in the manner contended for by Mr Masel, s.65(3) would be rendered ineffective to that extent by s.85(6) of the Constitution Act 1975. In view of the conclusion which I have reached - that s.65(3) does not preclude the use, in the present proceedings, of information given to the medical panel - I do not consider it necessary or desirable to express any views on Mr O'Loughlen's submission.

The next submission made by Mr Masel was that if I were to order the defendants to swear an affidavit of documents, that order would be contrary to s.48(2) of the Accident Compensation Act which provides:

"A member of a Medical Panel is competent to give evidence as to matters in a certificate or report given by the Medical Panel of which he or she was a member, but the member may not be compelled to give any such evidence."

The debate before me, relating to s.48(2), centred on the question whether, if members of the medical panel were required to give evidence in this case, that evidence would be "as to matters in a certificate or report given by the Medical Panel". However, there is a simpler answer to the contention raised by Mr Masel. I do not consider that the provision of an affidavit of documents by a member of a medical panel constitutes the giving of evidence. The process of discovery of documents " ... is the process whereby the parties in civil proceedings are able to obtain from each other a list of all documents relevant to the proceedings that are in the custody or control of the party making discovery."[10] That is, the process of discovery is an interlocutory procedure designed to ensure the comprehensive disclosure of documents relevant to the litigation; it is a step separate to and distinct from the giving of evidence in the litigation. Consequently, I reject the submission that, by compelling the first, second and third defendants to provide an affidavit of documents, I would be compelling them to give evidence contrary to s.48(2) of the Act.

That short answer is sufficient to dispose of Mr Masel's third contention. It is not necessary for me to express my views as to the more substantive issue which was argued before me relating to the construction of s.48(2). However, I shall express my views on that question, since the matter was debated in full before me. If the case were to return to me I would regard those views as binding on me, but, again, they are, strictly speaking, obiter dicta.

The issue relating to the correct construction of s.48(2) is not only relevant to discovery, but is also relevant to the question whether the members of the panel may be subpoenaed to give evidence concerning the information conveyed to them, on examination, by the plaintiff.

Mr Masel submitted that the words of s.48(2) are plain and should be construed as such. In support of that submission, Mr O'Loghlen, on behalf of the plaintiff, emphasised that it is significant that s.48(2) uses the phrase "evidence as to matters in a certificate or report", and not "evidence of matters in a certificate or report." He contended that s.48(2) was sufficiently wide to cover evidence by the panel concerning information conveyed to it, and on the basis of which the panel formed the conclusions contained in its certificate.

In response Mr Noonan made two submissions, namely:

(a) Section 48(2) refers to a certificate or report. The evidence of the members of the panel would be in respect of the information which the plaintiff told them and which is recorded in the panel's reasons. The reasons provided by the panel are separate and distinct to the certificate or report of the panel.

(b) Section 48(2) should be given a confined construction so as not to apply to proceedings for judicial review of the decisions of the Medical Panel.

Mr Noonan is correct in drawing a distinction between, on the one hand, the certificate or report of the Medical Panel, and, on the other hand, the reasons provided by the Medical Panel pursuant to s.8 of the Administrative Law Act 1975. Section 68(1) requires the Medical Panel to form an opinion on the matters referred to it. Section 68(2) provides that the panel must give a "certificate as to its opinion." Section 68(4) provides that the opinion of the Medical Panel is to be adopted and applied by any court and must be accepted as final and conclusive by the court. It is important to note that the opinion given by the Medical Panel constitutes its response to a "medical question" referred to it under s.45(1). "Medical question" is defined in specific terms in s.5. For example, sub-paras.(a) and (b) of the definition identify the two questions posed for the Medical Panel in this case.

Hence the certificate provided by the Medical Panel does not roam at large. Rather, it expresses a precise opinion as to the specific question or questions posed for the Medical Panel. In Lianos v Inner and Eastern Health Care Network[11] the Court of Appeal held that the reasons provided by the Medical Panel pursuant to s.8 of the Administrative Law Act do not constitute the opinion or report of the Medical Panel for the purposes of s.48(1). Chernov JA[12] emphasised the distinction between, on the one hand, the panel's opinion and certificate, and, on the other hand, the reasons provided by the panel for reaching the opinion recorded in the certificate. His Honour held that s.48(1) renders the former, but not the latter, admissible in proceedings under the Act.

Thus Mr Noonan is correct in drawing a distinction between the certificate or report on the one hand, and the reasons for the opinion contained in the certificate on the other hand. However, it is at this point that I consider that Mr Noonan's first submission fails. As Mr O'Loghlen pointed out, the critical words in s.48(2) are contained in the phrase "as to matters" in a certificate or report. The reasons of the Medical Panel may be a separate document to the certificate. However, the reasons are the basis of the conclusions stated in the certificate. Evidence concerning the reasons is evidence concerning the basis of the conclusions stated in the certificate. It follows that evidence concerning the reasons is evidence as to matters in the certificate.

If the submission on behalf of the fourth and fifth defendants were accepted, a member of a medical panel would be competent and compellable to give evidence relating to the history taken by him from the worker, and relating to the examination by him of the worker. However, he would be competent, but not compellable, to give evidence as to the conclusion formed by the member of the panel which is recorded in the certificate. There is no logical reason why Parliament would have intended s.48(2) to operate in such an incongruous manner.

The evident purpose of s.48(2) is to protect members of medical panels from the inconvenience of being compelled to give evidence concerning the matters in respect of which their opinion was sought by a court. The medical panel performs an important role in the legislative scheme; its opinion, as recorded in its certificate, constitutes a binding finding of fact (or of mixed fact and law) in the litigation to which it pertains. The obvious purpose of s.48(2) was to ensure that panel members undertake their role without the prospect of thereby rendering themselves liable to be compelled to give evidence concerning the matters which were the subject of their opinion. That purpose would not be served by leaving members of the panel compellable to give evidence as to matters such as the history taken from a worker, and the panel member's examination of the worker.

Mr Noonan's second submission was that s.48(2) does not apply to proceedings for judicial review. However, there is nothing in s.48(2) which would confine it so that it did not operate in proceedings of judicial review. Furthermore, s.48(2) is, in this respect, different to s.65(3), which I have considered above. If s.65(3) were construed to cover proceedings of judicial review, it would thereby restrict the ambit of the right of judicial review otherwise available to a party whose rights were affected by the finding of a medical panel. By contrast, if s.48(2) applied to proceedings for judicial review, it would not restrict the ambit of the right of review by such a party. Rather, s.48(2) protects one category of potential witness - a member of a medical panel - from being compelled to give evidence in any proceedings. Such a member is not precluded from giving evidence. If a member did choose to give evidence, he or she would be competent to do so. Therefore there is no cause to construe s.48(2) narrowly so as to preclude its operation in cases of judicial review. Moreover, the legislative purpose of s.48(2), which I have referred to above, would support the conclusion that s.48(2) does apply to any proceedings, including proceedings for judicial review.

For those reasons it is my view that s.48(2) does apply to this case so that the first, second and third defendants are competent, but not compellable, to give evidence as to the matters which are in dispute in this case, and in particular as to the information conveyed to them by the plaintiff relating to his working conditions. However, for the reasons which I have set out above, s.48(2) does not preclude the first, second and third defendants from being required to make discovery of the notes which they made in relation to the examination by them of the plaintiff.

Mr Noonan also submitted that in any event s.48(2) does not apply to the first defendant, who has provided a short affidavit in these proceedings. Mr Noonan submitted that the first defendant, by providing that affidavit, is already a witness and therefore there is no issue of his compellability. There are two answers to that submission. First, the affidavit has not been put into evidence. It was, apparently, provided by the solicitors on behalf of the first three defendants to the solicitors for the fourth and fifth defendants. As such, Dr Lefkovits has not, as yet, given evidence. Secondly, and more substantively, the affidavit of Dr Lefkovits does not give any evidence "as to the matters" contained in the certificate or report of the Medical Panel. It simply records that he was a presiding member, that he examined the plaintiff on 5 March 2004, that the other two members of the panel also examined the plaintiff, and that the panel formed the opinion set out in the certificate. None of those matters constitutes the giving of evidence "as to" the matters contained in the certificate.

The fourth submission by Mr Masel in opposition to the order for discovery is that, as a matter of discretion, the application by the fourth and fifth defendants has been made late and in disregard of an order of Byrne J of 15 June 2004. His Honour ordered that any affidavit sought to be relied upon by the defendants be served and filed by 15 July 2004, and that the proceeding be referred to the Listing Master forthwith for fixing for trial. The summons seeking discovery was not issued until 20 October 2004.

The application for discovery has been made late. However, the affidavit of the solicitor for the fourth and fifth defendants sworn in support of the application gives a satisfactory explanation for the delay. The fourth and fifth defendants acted expeditiously in seeking further information from the first, second and third defendants. When the affidavit of Dr Lefkovits was provided, the solicitor promptly responded that the affidavit was insufficient. He sought discovery of documents from the first, second and third defendants. The solicitors for those defendants responded by letter of 11 August 2004 to the effect that, in the absence of an order for discovery, their clients would not provide discovery. The only period of delay was between that date and the issue of the application for discovery on 20 October. Although that delay is unfortunate, nevertheless it is not sufficient to disentitle the fourth and fifth defendants to the discovery sought by them.

Finally, I do not consider that the matters of policy referred to by Mr Masel are sufficient to disentitle the fourth and fifth defendants, in the circumstances of this case, from the discovery which they seek. As I have noted, if discovery were denied to the fourth and fifth defendants, they would be without any information as to what transpired before the Medical Panel, and they would therefore be at a disadvantage in relation to the factual issues raised by ground 3(b) of the order of Master Wheeler of 17 May. It would not be appropriate to exercise the discretion against ordering discovery in circumstances where, to do so, would be to place the fourth and fifth defendants at such a disadvantage.

For the reasons which I have expressed above, I conclude that the fourth and fifth defendants are entitled to an order for discovery in the form sought by them in the appeal. Subject to hearing from counsel I therefore propose making an order that the decision of Master Wheeler of 15 November 2004 be set aside, and in lieu I order that the first, second and third defendants file and serve an affidavit of discovery of each and every document in his or their power or possession, if any, containing a record or other reference to any statements made by the plaintiff to him or them in their respective capacities as members of the Medical Panel convened to give a certified opinion in response to medical questions referred to them pursuant to s.45 of the Accident Compensation Act 1985.

In the course of submissions Mr Masel also foreshadowed an application by him to set aside subpoenas served by the fourth and fifth defendants on the first, second and third defendants to give evidence in the matter. It is appropriate that that application be dealt with at trial. The opinions which I have expressed concerning s.48(2) would bind me in relation to any such application, but, as I have already stated, they are obiter dicta, and would not be binding on any other judge who heard the trial of this proceeding.

[2] [1995] HCA 58; (1994) 184 CLR 163, especially at 176 - 178.

[3] [1999] VSCA 37; (1999) 2 VR 203 at 210 - 215 (per Phillips JA).

[4] (1875) 1 QBD 138 at 141, per Blackburn J.

[6] [1999] HCA 67; (1999) 201 CLR 49, especially at 59 (per Gleeson CJ, Gaudron and Gummow JJ).

[9] [1932] HCA 10; (1932) 47 CLR 121 at 134 (per Dixon J).

[10] See D.L. Bailey and E.K. Evans_, Discovery and Interrogatories Australia_ (Butterworths 1997) para 1005; Bray Law of Discovery and Digest (Reeves and Turner 1885) p.1.

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