Supreme Court of Tasmania|1987-04-28|Before: Green CJ, Wright JJ

Lazenby and Anor v Zammit [1987] TASSC 5; (1987) Tas R 54 (28 April 1987)

2. Order that within seven days the respondent deliver to the appellants a further list of the documents referred to in para 1 of Part II of the First Schedule to the List of Documents dated 10 April 1986 describing each of them sufficiently to enable it to be identified.

GREEN CJ AND WRIGHT J This is an appeal from an order made by a judge in chambers on 9 May 1986 dismissing an application by the appellants in which they sought an order against the respondent for a "more precise description of the medical reports obtained by Messrs Dobson Mitchell and Allport, Messrs Page Seager and John Curtain and Associates, including the dates of the said reports and the names of the authors of the same". The medical reports referred to were mentioned in a list of documents verified by the respondent's affidavit. The medical reports in question were claimed by the respondent to be privileged documents on the ground that they "came into existence or were made after this litigation was in contemplation and in view of and solely for the purposes of the same".

2. The appellants sought, as an alternative to their primary application, a declaration by the Court that the description of the medical reports in the list of documents "is inadequate for the purposes of Order 33 rule 16 of the Rules of the Supreme Court".

3. The actual description of the medical reports contained in the list of documents was in the following terms:

1. Solicitors instructions for brief, diary entries,

telephone attendance notes by Solicitors and clerks

within the Plaintiff's Solicitors' office, correspondence

between the Plaintiff and his Solicitors, witnesses

proofs, notes of evidence and statements, medical

reports obtained by Solicitors:

(a) for Messrs Dobson Mitchell and Allport;

(b) for Messrs Page Seager;

(c) for Messrs John Curtain and Associates."

4. At the hearing of this appeal it was submitted that the appellants were entitled to such a description as would enable them to form a prima facie view as to the correctness of the respondent's claim of privilege in respect of these documents. In our opinion, this proposition although supported by the decision of the Full Court of South Australia in Kadlunga Proprietors and Others v. The Electricity Trust of South Australia (1986) 39 SASR 410, goes too far as it seems to be an unauthorised gloss upon the plain language of Order 33 rule 16(1) which provides as follows:

"16-(1) A List of documents made in compliance with rule

13 of this Order or with an order under rule 14 of this

Order -

(a) shall be in accordance with form No. 9 in Part II of

Appendix B; and

(b) shall enumerate the documents in a convenient order

and as shortly as possible but describing each of them or,

in the case of bundles of documents of the same nature

each bundle, sufficiently to enable it to be identified."

5. We think that the correct limits of that rule were drawn in Taylor v. Batten (1878) 4 QBD 85 when Cotton LJ in delivering the judgment of the Court of Appeal said at p 88:

"The affidavit is sufficient if the documents are

sufficiently identified. But it is said that the

plaintiffs are entitled to be put in such a position

as to test the truth of the affidavit by the description

of the documents. That, however, is, in our opinion,

erroneous. The only object of the affidavit is to

enable the Court to order the documents to be produced,

if it think fit to make an order to that effect; and if

words are used which, if true, protect the documents, no

further particularity is necessary than in the case of

documents for which protection is not claimed."

6. That is still regarded as an authoritative statement of the effect of O.24 r.4(2) of the English Rules of the Supreme Court 1965 which is in the same terms as O.33 r.16(1) - see the Supreme Court Practice 1985 Vol.1 at p 401.

7. Accordingly, it seems to us that the application for an order in the terms of the primary application made by the appellants was rightly refused.

8. However, the appellants also contended that the description of the documents in the list of documents is inadequate because it is insufficient for the purposes of identification. In our view, it is plain that a document is not described "sufficiently to enable it to be identified" as required by r.16(1) unless its qualities or features are so specified as to enable a person of reasonable intelligence merely by looking at the document to say "that is (or is not) the document referred to in this list". As a corollary the description of a group or bundle of documents should be of such a kind that by reason of some identifying mark, date or number it should be possible to determine objectively whether any individual document falls within the group or bundle so described and it should similarly be possible by inspecting the group or bundle on a subsequent occasion to ascertain whether or not one or more of the single documents comprising that group or bundle has or have been lost or mislaid since the list was compiled. It follows further that, in our opinion, the description of a document would be quite insufficient for the purposes of r.16(1) if it is so lacking in particularity that the intervention of a party or his solicitor or some other person, is necessary in order to provide supplementary information about the list or the document before the document is capable of being identified.

9. Applying this test to the present facts it seems to us that the respondent's description of the medical reports is deficient. The dates of the reports are not given, nor does the list say how many such reports are in existence. If the respondent were directed to produce the documents for inspection and (say) three medical reports were produced, it would be quite impossible to say if these were the only reports referred to in para 1 of Part II of the First Schedule. In our opinion, some greater particularity is required before it can be said that the respondent has complied with r.16.

10. We would allow the appeal, but, in our opinion, the declaratory relief which has been sought is inappropriate. We would order that within seven days the respondent deliver to the appellants a further list of the documents referred to in para 1 of Part II of the First Schedule to the List of Documents dated 10 April 1986 describing each of them sufficiently to enable it to be identified.

NETTLEFOLD J An examination of O.33 r.16 shows that in substance it is to the same effect as O.24 r.5 of the English Rules as set out in The Supreme Court Practice 1985 (Eng) vol 1, pp 400-401. The form of list of documents referred to in that English rule is the same as the Tasmanian form except for immaterial verbal differences. That is important because the English authorities are thus made relevant in Tasmania.

2. An examination of the authorities shows that this list of documents is inadequate in the following respects:

1. The documents for which privilege is claimed are not described as numbered or indicated in any fashion which would identify them as being the ones for which protection is sought. The list of documents has the defect exemplified by the list referred to in The Lion Rolling Mills Pty Ltd v. Noyes Bros (Melb) Pty Ltd [1915] VicLawRp 59; (1915) VLR 383 and the first affidavit referred to in the report of Taylor v. Batten (1878-79) LR 4 QBD 85. The appellants are entitled to insist that the documents be identified along the lines of, or to the same extent as, the further affidavit in Taylor v. Batten (supra). There must be a description which enables production, if ordered, to be enforced.

2. It does not contain a description of the documents alleged to be privileged sufficient to support the claim for protection. The minimum requirement is stated in the above volume of the Annual Practice at p 409 and in Williams: Supreme Court Practice 2nd ed, vol. 1, p 1487.

3. The relevant requirement is best stated in the words of the Annual Practice:

"As a general rule the list should specify the class of

documents (eg 'letters passing between myself and my

solicitor') as well as stating the ground of privilege

(eg 'for the purpose of taking my solicitor's advice') so

that the Court may see for itself on what ground privilege

is claimed and that the class of documents is one to which

that ground may apply. If those two conditions are

properly complied with - at any rate, if the list is

verified by affidavit - the plea is conclusive unless and

until disproved (eg by a successful application under r.7

or by proving an admission inconsistent with the plea).

But if the plea is insufficiently taken or the ground of

privilege is one not known to the law, the remedy of the

other party is either to apply by summons under r.11(1)(b)

for an order for production of the documents or to apply

under r.3 for a further and better list of documents,

verified by affidavit."

4. Of course, the English examples may not be appropriate in Tasmania. But, leaving that aside, that passage is applicable to the Tasmanian rules.

5. The same point is made in the following dictum from Taylor v. Batten (supra) at p 88:

"If an affidavit claiming protection for documents some

of which are, while others are not, privileged did not

sufficiently show which were entitled to protection, the

Could would either order production of all, or, as under

ordinary circumstances would be the proper course, allow

the party an opportunity of making a further affidavit

to identify the documents entitled to protection."

6. (See also Butters Gas and Oil Co v. Hammer and Ors etc (1980) 3 All ER 475 at p 500 per Brightman LJ.).

7. But, the appellants are not entitled to have the dates of documents and such other particulars, for example, the identity of the author, as may enable them to discover indirectly the contents of the documents and thus to cause the plaintiff to furnish evidence against himself (Gardner and Anor v. Irvin and Anor (1878) LR 4 Ex D 49 at p 53.

8. Some further explanation of the basis for finding the second inadequacy is required. Para 2 of the list of documents reads as follows:

"2. The Plaintiff objects to produce the documents

enumerated in Part II of the First Schedule hereto on the

ground that the same are privileged and came into

existence or were made after this litigation was in

contemplation and in view of and solely for the purposes

of the same."

9. The description of the documents in Part II of the first schedule of the list of documents raises a suspicion that some of the documents in fact may not attract that ground of privilege at all. We were told that the description should be taken as reading as follows:

"medical reports obtained by Solicitors:

(a) for Messrs Dobson Mitchell and Allport;

(b) for Messrs Page Seager;

(c) for Messrs John Curtain and Associates."

10. An issue in the case is whether the injuries allegedly suffered by the respondent in the accident the subject of the action are in fact a recurrence of old injuries suffered in another accident. The accident which gives rise to this action is said to have occurred on or about 8 October 1985. The action was commenced on behalf of the respondent by his solicitors, Messrs Dobson, Mitchell and Allport, by a summons dated 4 November 1985. It appears to be the case that Messrs Dobson, Mitchell and Allport have been the respondent's solicitors on the record since that time. One is left wondering what role the other two legal firms could have been playing after the date of the accident, 8 October 1985. Why would either of those firms be obtaining medical reports concerning the respondent "which came into existence or were made after this litigation was in contemplation and in view of and solely for the purposes of the same", bearing in mind that neither of those firms has been on the record as acting for either side? If they were acting as agents for Dobson, Mitchell and Allport, an unlikely suggestion, they should be so described. The suspicion is that one or more of the medical reports referred to may have been obtained for some purpose related to a previous accident suffered by the respondent before this action was in contemplation. If that is the case that report or those reports do not attract the ground of privilege relied on.

12. The respondent should be ordered to make and serve on the appellants within seven days a further and better list of documents verified by affidavit which satisfies the requirements referred to in these reasons.

Lazenby and Anor v Zammit [1987] TASSC 5;

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Lazenby and Anor v Zammit [1987] TASSC 5; (1987) Tas R 54 (28 April 1987)

Parties

Cases Cited (1)