Subrule (2) limits the request to 50 documents.
6 The first matter on which I was asked to make a decision was whether to accept tender of a bill to amend the Registered Clubs Act to take out part of s 41X. The tender was opposed. I do not see how one can use the fact that Parliament is currently considering the repeal of legislation to show that the legislation properly construed means what those seeking its emendation fear it means. In any event, the tender would be irrelevant to my consideration of the present problem. Accordingly I rejected the tender.
7 The second matter argued deals with the proper construction of Part 23 r2 of the Supreme Court Rules. It will be noted that there was no document alleged to be referred to in originating process, pleading, affidavit or witness statement. One must accordingly look for a request to produce any other specific document. The fact that "other" is used gives an ejusdem generis flavour to a specific document. In 2(1)(a) one knows exactly which document needs to be produced. One would expect, accordingly, that the same would apply to a request under (b). The authors of the Supreme Court Practice in note [23.2.2] come to the same conclusion using the reasoning that the underlying intention of the Rules is that parties are not to be subjected to any kind of general discovery obligation unless there is an order of the Court so that rule 2 must be construed accordingly.
8 The words "clearly identified", or their equivalent in s 88 of the Conveyancing Act "clearly indicate", mean that there must be something more than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; there must be a pointing out in a manner that is distinct and free from confusion; see eg Papadopoulos v Goodwin [1982] 1 NSWLR 413.
9 The word "specific" conjures up the idea of something which is identified and not merely identifiable; see per Sargant LJ in Kursell v Timber Operators & Contractors Ltd [1927] 1 KB 298, 313, 314.
10 There was some debate before me as to the origin of Part 23 r2. In particular I am indebted to Ms Robinson of counsel for her research which, as not infrequently happens with research projects, turned out not to produce much by way of answer. Mr Coles QC said that anecdotal evidence is that M H McLelland CJ in Eq suggested the present rule. There is also a lot to be said for the proposition that the remarks of Nicholls VC in Khanna v Lovell White Durant [1995] 1 WLR 121 at 126 that the then informal practice in the Commercial Court and Chancery Division in England of allowing specified documents to be produced in advance of the trial, was an impetus for our rule. In commenting on cases like Khanna Professor Zuckerman in his Civil Procedure (Lexis Nexis, UK, 2003) [14.93] notes that it is significant that the procedure relates to specific documents because this will mean that the conduct money payable will be minimal.
11 Mr Coles says that all that a person seeking to take advantage of the rule needs to do is to give a sufficient description to enable the person served to perform the obligation to produce the document. In view of what I have said above, I would not endorse this submission.
12 There was then a debate as to whether, in the light of other evidence, the defendants were being asked to produce more than 50 documents. Mr Coles pointed out that merely because there appeared to be a large number of lever arch files in court, each looking as if they contained more than 50 sheets of paper, did not necessarily mean there were 50 documents. Mr Singleton said that he had more than 50 documents which fell within the description. Mr Coles said that that fact had not been established and that it was up to the defendants to establish it. I think Mr Coles is correct, but it did not really matter in the instant case because of my other rulings.
13 Before passing from this topic I should note that Mr Coles correctly submitted that there were two requirements in Part 23 r2; one is the identification of the document, and the other is that the document must be relevant to a fact in issue. He says there is no further requirement such as the requirement of the document being sought for a legitimate forensic purpose. As a general statement, this must be correct though the tests of "relevant to a fact in issue" and "legitimate forensic purpose" to some extent overlap.
14 The fourth matter was whether the proper procedure had been adopted. Originally the plaintiffs had issued a subpoena and then informally by letter, turned the subpoena into a notice to produce. Mr Coles said that Mr Singleton should move to set it aside, Mr Singleton said that as there was no actual notice he could not move to set it aside. However, eventually it was agreed that under Part 23 r4 the Court of its own motion could vary an obligation under rule 2, and that the defendants did not wish to put any procedural problems in the way of the Court exercising that jurisdiction.
15 The fifth matter is that Mr Coles then applied to vary the obligations arising under rule 2 by amending the notice to include documents described or identified in the plaintiffs' letter to the defendants of 17 October 2004. There were some clearly identified documents which Mr Loewenthal's affidavit in these proceedings identified. In particular, what was sought was a report from Mr Gardener.
16 Apart from the report of Mr Gardener, Mr Singleton said that this was not an indication of a specific document. Mr Coles said that it would be sufficient if the evidence was that the defendant had said to the plaintiff "I have a box of documents corresponding with this description" or "I have in my tea chest 6 copies of my title documents to Blackacre", a notice to produce could say "Produce the documents in the box" or "Produce the documents in the tea chest". Mr Singleton denied that proposition, submitting one cannot merely mention a category of documents, one has to refer to the specific documents.
17 In asking for an expanded version of his demand, Mr Coles made the point that as Mr Loewenthal had now identified the documents being in several lever arch files and one further document from Mr Gardener, it could not be said that the documents were not specific documents. They had actually been identified in an affidavit of the other side within the meaning of the rule. This argument must be correct with respect to Mr Gardener's report. However, the documents in the lever arch files would, to my mind, bear no difference to reference to documents in a box about which I have already commented.
18 I upheld Mr Singleton's submission.
19 The next application was for production of Mr Gardener's report.
20 The production of this document was objected to on two grounds: (1) that it was privileged; and (2) that it was an abuse of process to ask for it under the Rule. I upheld the claim of privilege for reasons I will shortly relate, and so it was not necessary to deal with the question of abuse of process. I would note, however, that the ground of abuse of process would, on my first thoughts, have stood a better than even chance of being established.
21 So far as privilege is concerned, Mr Singleton read an affidavit of Darrell Loewenthal who said that the Director General of the Department of Gaming and Racing objected to producing any documentation unless and until a legitimate forensic purpose was demonstrated. He said that one of the documents caught by the terms of the proposed call was a 35 page report to the Director General prepared by Albert Gardener. Mr Loewenthal said that that document related to the official duties of the Director General and that its disclosure would be contrary to the public interest as it was important to the proper and efficient discharge of the Director General's duties that he be able to receive confidential advice and information from the Department in respect of sensitive matters. Furthermore, the report discloses the use and identities of confidential sources of information.
22 Mr Coles sought to cross examine this gentleman. Mr Singleton objected on the basis that it was contrary to all authority to allow such cross examination and Mr Coles acknowledged that he had no right to cross examine, without leave, which leave I declined as I could not see any especial reason for granting it.
23 The debate then revolved around s 130 of the Evidence Act 1995.
24 Section 130(1) of that Act provides:
"If the public interest in admitting into evidence information or a document that relates to matters of State is outweighed by the public interest in preserving secrecy of confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence."