Judgment (Defendant's Notice of Motion for further discovery)
1 By Notice of Motion dated 18 October 1999 the defendant moves the Court for an order that the plaintiff provide further and better discovery of documents in what is described as "the categories set out in the schedule to this Notice of Motion". Appended to these reasons is that schedule of 35 classes of documents.
2 The application arises, inter alia, from the following: what is said to be the inadequacy of the discovery given by the plaintiff in each action in November 1986; the judgment I delivered in 23 June 1999 granting leave to the defendant to amend its case on justification (NSWSC 619: DLJT:44) and particularly the failure of the plaintiff to comply with consent orders made on 13 August this year which required both parties to give further discovery of documents by 10 September.
3 The plaintiff has failed to comply with that consent order.
4 Discovery is governed by the "old" Part 23 of the Rules.
5 An affidavit by Ian Robert Angus, solicitor for the defendant, was sworn on 18 October 1999. Exhibited to it is a folder containing 27 documents (Exhibit 2 on this application). A second affidavit sworn 25 October 1999 has exhibited to it two bundles of documents (Exhibits 3 and 4) produced by the Roads & Traffic Authority of New South Wales in response to subpoenas issued by the defendant on 1 February 1999 and 20 July 1999.
6 Other "source" material for the purposes of determining the application is constituted by the Amended Second Consolidated Particulars of Truth which have been delivered and the Further Amended Defences filed on 26 October 1999. Additionally, I have been provided with a folder of witness statements directed to be served by the defendant on the plaintiff.
7 From this material there was generated a useful compendium of the evidentiary basis for each of the categories. It is argued for the defendant that an analysis of the material referred to in this document discloses that there is evidence pointing to the existence of the relevant categories of documents.
8 Appendix 2 is made up of three pages of a "Discovery Schedule" which is a more focused analysis of evidence said to point to the existence of material in relation to motor vehicles, the plaintiff's house and photographs.
9 Exhibit 1 in the defendant's application is a bundle of correspondence passing between the defendant's solicitors and the plaintiff's solicitors and the plaintiff himself. In several letters, 26 August 1999 and 6 September 1999, the plaintiff candidly presents his position in relation to the various categories of documents now set out in the Schedule to the Notice of Motion. He refers to the existence or non-existence of documents, claims privilege and asserts that in respect to any document that he might have its proposed use will be for cross-examination.
10 The essence of this application is that the plaintiff be ordered to give discovery: that is, to deliver a list of documents in accordance with the "old" Part 23. In this context I am not concerned with the validity of any claim for privilege the plaintiff might make or the availability of any claim akin to that determined by me in the "Corrs subpoena" judgment delivered in these proceedings on 7 May 1999 (NSWSC 428: DLJT: 39). The real issue is the "ambit" of the asserted "requirements" of the defendant to be imposed upon the plaintiff as to the 35 categories of documents. This "ambit" has given rise to complaints on the part of the plaintiff akin to oppression, fishing and the like. The "relevance" of some of the material is asserted to be non-existent at worst, or doubtful at best. The ultimate use of any material of which discovery is given and in respect of which no claim for privilege can be maintained will be a matter that arises upon its deployment and tender. I cannot hypothesise, as I was invited to do by the defendant, as to a series of steps that may be taken in the course of evidence given by a particular witness that may give rise to the use of a document in some way (as corroborative material, for example). I am not concerned with any question of inspection at this stage.
11 What is available to me are the powers provided in SCR Pt 23 r 3 and the general power under Pt 26 r 1 (cf. Kimberley Mineral Holdings Limited (In Liq) & Anor v McKewan (1980) 1 NSWLR 210).
12 Nor am I concerned with any forensic advantage the defendant might wish to take of the fact that the plaintiff verifies the List. Nor am I concerned with questions of bare utility in the sense advanced for the defendant that it would be useful to have a numerated and particularised list of documents to obviate confusion. It certainly would be of utility to have such a document, but that will not be determinative of the nature and extent of the obligation in the plaintiff to give discovery particularly in the light of the proximity of the trial on the one hand but not ignoring, on the other, the plaintiff's default in compliance with the consent order referred to above.
13 It thus seems to me to be appropriate to resolve the matters in contention by reference to the 35 categories in the Schedule to the Notice of Motion.
14 In dealing with the following categories I will indicate pursuant to SCR Pt 23 r 3 the nature of any limitations I direct to apply to the List of Documents.
15 Category 1 (motor vehicles): the Discovery Schedule appended hereto in relation to paragraph 1 represents a more focused "requirement" of the defendant in relation to the five D persons referred to. It is not however perfect. In relation to D16 there is no paragraph 26 in the particulars and in relation to D17 there is no paragraph 13. In relation to D15 in paragraph 7(16) of the particulars there is a reference to a Mercedes Benz motor vehicle. In respect of D16 there is in paragraph 8(13), (14a) and (19) a reference to a "car". With respect to D17 paragraph 9(6) refers to a chauffeur driven car, paragraph 9(7) does not refer to a motor vehicle at all. The end of paragraph 9(11) refers to the complainant's being driven by a driver. In relation to D19 paragraph 11(3) there is reference to the plaintiff being observed "driving past the wall". In relation to D24 the relevant paragraph of the particulars is 16 (not 18) and paragraph (3) refers to a car and a driver; similarly paragraph (4) and (10) refers to the plaintiff arranging for someone to "drive" D24 back to Campbelltown.
16 The relevant years appear to be 1973, 1974, 1985, 1986, 1987, 1989 and 1990. Whilst Exhibits 3 and 4 on the application (material from the Roads & Traffic Authority) discloses to the defendant at least a great deal of material in relation to ownership and registration of motor vehicles, the plaintiff's obligation to discover will be limited to D15, D16, D17, D19 and D24 in respect of the years allocated to each in the Discovery Schedule.
17 A further limitation will relate to the ownership by the plaintiff, by the plaintiff's company or to any vehicle used by him in his capacity as an officer of the Law Society during any relevant year. The "use" of any other motor vehicle during the period 1970 to 1990 as a requirement for discovery is undue.
18 These documents are to be listed as classes of documents in relation to the respective D persons and the respective years.
19 Category 2 (the plaintiff's house): the second Discovery Schedule in relation to paragraph 2 indicates the following relevant years: 1970, 1976 to 1979, 1984, 1985, 1986 and 1990.
20 The relevant consideration appears to be the configuration, layout and furnishing of the plaintiff's house in relation to the specified D persons in the specified periods.
21 The plaintiff is to give discovery by reference to classes of documents allocated to each of the D persons for each of the relevant years in respect of items 2(b), (c), (d) and (e) in the Schedule to the Notice of Motion.
22 Category 3 (photographs of the plaintiff): this is perhaps the most controversial of the defendant's "requirements". Relevance is to some extent acknowledged in the plaintiff's letter of 26 August 1999 (part of Exhibit 1), paragraph 3. The plaintiff's concerns otherwise expressed as to the onerous nature of the defendant's "requirement" and the intrusion into privacy and similar considerations are, in my view, well founded. It does appear that it has to be acknowledged however that "identification" will be an issue. This is clear from Mr Marsden's letter just referred to.
23 Accordingly, the plaintiff is to include in the List of Documents, by reference to the periods allocated to each of the D persons only, photographs (but not photograph albums) of himself and as classes of documents.
24 As is the case in relation to all categories the plaintiff in compiling the List of Documents is free to claim any privilege that he considers appropriate.
25 Category 4 (photographs of motor vehicles): discovery of classes of documents should be given by reference to the D persons and periods referred to in category 1 and limited to the motor vehicles therein referred to but excluding any motor vehicle described as a motor vehicle "used".
26 Category 5 (D15 and D16 employment records): discovery by way of classes of documents in respect of each of these D persons should be given regarding employment by the plaintiff of each of them. The limitation is in respect of the D persons and the periods of time relating to each such D person as set out in the Consolidated Particulars.
27 Category 6 (business cards): this is another "undue" requirement by the defendant. It appears from the Consolidated Particulars of Truth (paragraph 7(10) in relation to D15) that there is one reference to a business card and that is in 1980. Mr Marsden deals with the defendant's "requirement" in his letter of 26 August 1999 (part of Exhibit 1).
28 The plaintiff is required to give discovery in relation to any business card or cards for the year 1980 only.
29 Category 7 (plaintiff's mobile telephone numbers): I disagree with the defendant's contention that Mr Marsden's letter of 26 August dealing with mobile telephone numbers (paragraph 7, page 4) implies that he has documents in that very broad category constituting the defendant's "requirement". The focus of relevance is D16 as set out in paragraph 8(18) and (19) of the Consolidated Particulars.
30 The plaintiff is required to include in the List of Documents by reference to a class of documents the records called for in paragraph 7 of the Schedule to the Notice of Motion.
31 Category 8 (Brett Whiteley pictures): it seems clear on the correspondence that there is no issue that the plaintiff has two Brett Whiteley pictures. The relevance is clear from the particulars. I am not persuaded that the plaintiff is required to give discovery of anything other than the two Brett Whiteley pictures and documents relating to their purchase.
32 By "give discovery" it is to be stressed that the requirement in the plaintiff is to do no more than comply with the "old" Part 23.
33 Category 9 (Regent Hotel - records of stays): the plaintiff should give discovery as classes of documents the material referred to in paragraph 9 of the Schedule of the Notice of Motion.
34 Category 10 (Regent Hotel - Law Society): as for category 9.
35 Category 11 (remuneration/benefits received by plaintiff): with respect to any vehicle provided by the Law Society this should be covered by discovery in relation to category 1 above. Otherwise the position of the defendant is really embarrassing particularly in the light of the legitimate remarks made by Mr Marsden in his letter of 26 August 1999 (paragraph 12). Once the defendant had to embark upon a process of elimination of material from this category its vulnerability was clearly exposed.
36 The plaintiff is not required to give discovery (save for the exception in relation to Law Society motor vehicles under category 1) of material referred to in paragraph 11 of the Schedule to the Notice of Motion.
37 Category 12 (contact records with D persons): the plaintiff is required to give discovery of the material in paragraph 12 of the Schedule to the Notice of Motion by reference to classes of documents.
38 Category 13 (records of contact between the plaintiff and named persons concerning D persons): the plaintiff is required to give discovery in the same way as was directed in relation to category 12.
39 Category 14: the plaintiff is to give discovery as per categories 12 and 13.
40 Category 15 (the statutory declaration): The plaintiff is to give discovery thereof.
41 Category 16: the generality of the defendant's "requirement" in this regard is such that I am unable to focus it in any way in relation to the exposed issues.
42 The plaintiff is not required to give discovery of the material referred to in paragraph 16 of the Schedule to the defendant's Notice of Motion.
43 Category 17 (photographs of the plaintiff in the company of the D persons): the plaintiff is required to give discovery (that is, to list the documents) of the material referred to in paragraph 17 of the Schedule to the Notice of Motion.
44 Categories 18, 19, 20 and 21: the fact that this material might have been the subject of earlier applications, successful or otherwise, does not preclude, in my view, the obligation on the plaintiff to give discovery of this material.
45 The plaintiff therefore is required to give discovery, by reference to classes of documents, of the material referred to in paragraphs 18, 19, 20 and 21 of the defendant's Notice of Motion.
46 Category 22 (statement by the Law Society): in a letter dated 26 August 1999 the plaintiff states that he has obtained statements from the Law Society ("which you can subpoena") which show that the Law Society did not pay for any Regent Hotel expenses in respect of the subject period.
47 The plaintiff is required to give discovery of these documents.
48 Category 23 (statutory declarations): again, irrespective of any claim for privilege hitherto successful in relation to any one or more of these statutory declarations, the plaintiff is nonetheless required to give discovery of them: paragraph 23 of the Schedule to the Notice of Motion conveniently, for the plaintiff, sets out the particular documents which are to be listed and he should so list them.
49 Again, if it has to be stressed, I am only concerned with the defendant's Notice of Motion for the discovery of the documents in the Schedule and the plaintiff is concerned only with compliance with the old SCR Pt 23 in accordance with these directions. It is open to the plaintiff in accordance with that rule to state or re-state any claim for privilege or other matter that may in due course affect questions of inspection, Notices to Produce and the tendering of material in evidence.
50 Categories 24, 25, 26 and 27: These individual documents should be listed by the plaintiff in the affidavit of discovery.
51 Category 28 (records relating to instructions received by Marsdens): in relation to these documents there would appear to available claims privilege. But that will be a matter later to be determined.
52 The plaintiff is required to give discovery of the material referred to in paragraph 28 of the Schedule to the Notice of Motion by reference to classes of documents.
53 Category 29 (diaries of plaintiff 1975-1984): the defendant refers to an affidavit of Jarrod Bruce Lovely sworn 9 October 1998 which appears itself to be an annexure to a statutory declaration of the plaintiff sworn in November 1998 and a statement by Mr Barker Q.C. on 11 February 1999 to the effect that the plaintiff has no diaries to produce. Mr Lovely's affidavit, which is behind tab 12 of Exhibit 2, relates to searches conducted by him and another person of telephone message books from 1986 to 1990 of the firm of Marsden's and the message books for the plaintiff 1986, 1989 and 1990, and 1987-1988. The message books are described as taking the form of "Collins-type diaries". The relevant focus appears from category 31 to be an asserted record of a message from D16 on 13 May 1986.
54 It is impossible to reconcile the "requirement" of the defendant in paragraph 29 of the Schedule to the Notice of Motion with the basis (Mr Lovely's affidavit) relied upon.
55 The plaintiff will be required to give discovery of the telephone message books of the period 1986-1999 of the firm Marsden's as is referred to in paragraph 2 of the affidavit of Mr Lovely and of the telephone message books referred to in paragraph 3 the years 1986, 1987, 1988, 1989 and 1990 of the plaintiff.
56 Category 30 (diaries of Marsden's the attorneys 1975-1984): the defendant has failed to persuade me of any principled basis for this wide-ranging "requirement" in respect of the diaries of a firm of solicitors for nine years.
57 The plaintiff is not required to give discovery of the material referred to in paragraph 30 of the Schedule to the defendant's Notice of Motion.
58 The requirements referred to in relation to category 29 above and category 31 below appear to me to be sufficient.
59 Category 31 (telephone message book for the plaintiff in respect of the period "1970 to date"): it is the defendant's "requirement" that the plaintiff give discovery of his message books for a period of 29 years. The plaintiff is not required to give discovery of the documents referred to in paragraph 31 of the Schedule to the Notice of Motion otherwise than in compliance with the direction given in relation to category 29. It is to be noted that discovery is to be given of the telephone message books by reference to year and not by reference to classes of documents.
60 Category 32 (documents re loan to D15): the plaintiff is required to give discovery by reference to class of documents of the material referred to in paragraph 32 of the Schedule to the Notice of Motion.
61 Categories 33, 34 and 35: the plaintiff is required to give discovery of the documents referred to in paragraphs 33, 34 and 35 by reference to classes of documents.
62 In making these directions I have borne in mind particularly the desirability of minimising activities that would otherwise be capable of interfering the preparation for and conduct of the trial of this case, not ignoring however the plaintiff's default which triggered the correspondence and the filing of the Notice of Motion. The trial is listed to re-commence on 15 November 1999.
63 It was submitted that I should change the views expressed in my ruling on the Corrs subpoena (7 May 1999 - NSWSC 428: DLJT: 39). The present application provides no basis for my so doing nor for my considering so to do. It is clear that the defendant consequent upon the grant of leave to amend its case on justification has gone through just about every document that the plaintiff has deployed in the course of a multiplicity of interlocutory applications and indeed, a lot of material that the defendant has subpoenaed, to embark upon this exercise of seeking wide-ranging discovery. Save for that which is reflected in the directions that I have given in the Schedule to the Notice of Motion, I have not otherwise been persuaded that either as a matter of principle, let alone as a matter of efficient trial management that the defendant's "requirements" should be unreservedly met.
64 The formal orders are: