Permanent Custodians Ltd v Nobilo

(a) Rule 21:10(1)(b) UCPR 15Rule 21.10(1)(b) UCPR provides: 21.10 Notice to produce for inspection by parties (1) Party A may, by notice served on party B, require party B to produce for inspection by party A: (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced. 16What is required under sub-r (1)(b) has been discussed in a number of cases which are conveniently summarised by Barrett J in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869: [9] Brereton J went on to make observations about rule 21.10 referring specifically to what had been said by Young CJ in Eq in Penrith Rugby League Club Limited v Brown [2004] NSWSC 1182. Brereton J said at [4]: "Part 21 r 10 authorises service of a notice to produce, in respect of documents referred to in originating processes, pleadings, affidavits and witness statements, and 'any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue'. The limitations with the requirement that there be a 'specific document' and that it be 'clearly identified' were explained by Young CJ in Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182. As his Honour explained, the rule was not intended to subject a recipient to any kind of general discovery obligation. The words 'clearly identified' mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required." [10] Brereton J then stated his conclusion on the matter before him at [5]: "In my view, this notice does not clearly identify specific documents, but calls for classes of documents. It was not the intent of this rule to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents. Accordingly, in my view, this notice is not a valid exercise of the power to serve a notice to produce under r 21.10, and I would set it aside on that basis." [11] It is thus clear that, in rule 21.10, the combination of "specific document" and "clearly identified" means that a notice can relate only to a document describe by means of characteristics peculiar to itself, such as a letter of a given date written by X to Y, or the minutes of a meeting of directors of Z Limited held on a given date. A notice relating to all letters written by X to Y in 2008 or the minutes of all meetings of the directors of Z Limited held in 2008 would not be permitted because referring to a class of document as distinct from what Harrison AsJ in Douglas Corporation v Currico Nominees [2007] NSWSC 113 termed "the individual document sought" is not a permissible course. 17In my opinion, the Notice to Produce does not require the production of documents which are "clearly identified" as that term has been explained. Rather, what is sought are categories of documents. Each of the paragraphs in the Notice to Produce commences with the words "any and all documents", and then goes on to identify the group or class of those documents in each case by reference to 4 paragraphs in Ms Moore's affidavit. It seems apparent, in the first instance, that the Cross-Claimants are not even certain if such documents exist - rather, it appears to be assumed that they would exist because the solicitor had conferences with the Cross-Defendants as appears in those paragraphs. That is a further indication that the description does not identify a particular document. 18Seemingly to avoid this result, the solicitors for the Cross-Claimants wrote on 17 October 2011 endeavouring to narrow the documents referred to in the Notice to Produce by confining them to documents relating to: (i) The Cross-Defendants acting or not acting for the Third Defendant; and (ii) Transfer of the 1% interest in the property to the Third Defendant. 19Two things can be said about this. First, the present Notice of Motion still seeks an order that the Cross-Defendants produce the documents referred to in the Notice to Produce. There is no qualification relating to the letter of 17 October 2011. Secondly, and more fundamentally, the narrowing in that letter does not remove the requirement in the Notice to produce a class of documents rather than identified individual documents. 20In my opinion, the requirements in the Notice to Produce do not comply with r 21:10(1)(b) UCPR because the documents are not "clearly identified" as that phrase is understood in the authorities. Relevance of documents 21The Rule also requires that the documents be relevant to a fact in issue. The facts in issue on the motion to withdraw the admission are the instructions received by the solicitor acting for the Cross-Defendants on the two occasions referred to. The solicitor gives evidence in her affidavit, in substance, of what the instructions were. 22The Cross-Claimants say that they do not question Ms Moore's explanation nor her truthfulness, and they do not wish to cross-examine her. It is difficult in those circumstances to see how the documents can be relevant to a fact in issue. The documents would only confirm or deny what Ms Moore has said, and what she has said is not disputed nor challenged. 23The real dispute is likely to be what instructions the Cross-Defendants received themselves rather than what instructions Ms Moore received when she came to act for the Cross-Defendants after they were joined to the proceedings. But the documents sought in the Notice do not include the Cross-Defendants' own documents - they are confined to Ms Moore's documents as are referred to in the identified paragraphs of her affidavit. 24The documents required could only affect Ms Moore's credit, and that is not challenged. Accordingly, the documents are not relevant to any fact in issue. In that way that aspect of the Rule is not satisfied. The Registrar was correct in holding that the Notice did not comply with the Rule.

(b) Section 68 Civil Procedure Act 2005 25Section 68 CPA provides: 68 Attendance at court and production of documents and things to court Subject to rules of court, the court may, by subpoena or otherwise, order any person to do either or both of the following: (a) to attend court to be examined as a witness, (b) to produce any document or thing to the court. 26The issue in relation to s 68 turned largely on what was meant by "Subject to rules of Court". The Cross-Claimants submitted that the power given by s 68 was not only a wider power than is contained in r 21.10 and r 34.1, but was also a wider power than the Rules generally allowed. This was said to be demonstrated by the resort to s 68 to enable the production of documents for a liquidator's examination. It was submitted that orders for production could not have been made in such cases were there not additional power in s 68 over and above that which was provided in the Rules. 27It is clear that the Cross-Claimants did not issue the Notice to Produce relying on any other provision than r 21.10. The first time that s 68 was raised was in submissions in reply before the Registrar. Nevertheless, a proper application of s 56 CPA may well permit appropriate amendments to be made, with appropriate cost protections to the Cross-Defendants, if s 68 could have been availed of by the Cross-Claimants. 28The Cross-Claimants drew particular attention to the decisions of Barrett J in Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1188 and Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1476 to show that s 68 itself can be availed of at least for the purpose of requiring the production of documents for a liquidator's examination. There was reliance in those cases on earlier decisions under Pt 36 r 12 Supreme Court Rules which s 68 has replaced. The Cross-Claimants submitted that what must be inferred from those cases is that the power in s 68 was wider than the power given in the various rules requiring production of documents. 29A reading of Pt 36 r 12 SCR shows that it was particularly, although not exclusively, directed to production of documents in connection with company examinations: Re BPTC (In Liq) (1993) 29 NSWLR 713. Moreover, the Rule was said to confer ample power on the court to make orders for the production of documents: Re BPTC at 718. But the power conferred by the Rule was more limited than the subpoena power because it was confined to the production of documents potentially relevant to the examination. 30The terms of s 68 are not so limited, and regard must be had to the fact that the power now derives from the Act rather than the Rules. But the section is introduced by the words "Subject to rules of court". The Defendants say that those words cannot mean only "as authorised by the Rules" because that would mean the use of s 68 in aid of company examination matters would not be allowable. 31It may be accepted that the power given in s 68 is wider than is contained in individual parts of the Rules (R 21.10; R 33.2; R 34.1) and, perhaps, wider than the sum of them. But that does not mean that s 68 can be resorted to whenever compliance with a rule is difficult or inconvenient. The words "Subject to rules of court" mean that the relevant rule must be complied with if there is such a rule. If they did not mean that, a party could step around the requirements of a rule (eg a "document...that is referred to" in (a); a "specific document...that is clearly identified" or "relevant to a fact in issue" in (b)) by invoking s 68 with no such limitation. The use of s 68 in company matters, without resort to a specific rule, is hallowed by usage acquired in such cases as Re BPTC when the same power was to be found in Part 36 R 12. That was a separate source of power at the time, but has now been made "Subject to rules of court". 32The Cross-Claimants are not entitled to rely on s. 68 independently of the Rules. The Registrar was correct in so deciding.

(c) Client legal privilege 33It is not strictly necessary to consider this issue because of my conclusions in relation to the two earlier issues that mean that the documents are not required to be produced. However, if I am wrong in that view I should consider this issue. 34The Cross-Defendants point first to the statement in Ms Moore's affidavit where she says, "Nothing in this affidavit is intended to waive any claim of client legal privilege". Such a statement cannot be the determining factor on any enquiry to see if the privilege has in fact been waived. 35The Cross-Defendants further submit that mere reference by a solicitor to instructions received from a client is not inconsistent with the maintenance of confidentiality in respect of any documents recording those instructions. 36In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 the plurality judgment said at [29]: What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. 37They also said at [34]: Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. 38In Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86; (2006) 151 FCR 341 the Full Court of the Federal Court said, having discussed the passage in Mann at [29] and some other authorities: These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication. 39A little later they posed the question concerning waiver in these terms: [68] In this case, everything turns on the particulars given by the Commissioner in response to Rio's request. The question is whether, by his particulars, the Commissioner made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege. To answer this, the relevant assertions must be considered in their proper context. 40A reading of paragraphs 12 and 13 on the one hand and 17 and 18 on the other, of Ms Moore's affidavit makes clear that she is comparing instructions that she received on the 2 occasions referred to about who it was that the Cross-Defendants were acting for. In paragraph 13 she expressly refers to the instructions (or some of them) that she received concerning the matter. 41When it is remembered that the purpose of the swearing of this affidavit is to provide a justification for the withdrawal of an admission made, it is difficult to see how there has not been a waiver of privilege in relation to the instructions received on the 2 occasions in question. The issue has been opened up for the precise purpose of the Cross-Defendants being able to change their defence to the case on this point. It is inconsistent with the privilege over the instructions received for the Cross-Defendants now, through their solicitor (although they do not themselves swear an affidavit to that effect) to make reference to the instructions for the desired purpose. The matter does not involve the provision of legal advice or the disclosure of such advice. The issue of waiver is concerned only with the giving of instructions. 42The Cross-Defendants point to 3 decisions of various courts which suggest that there is no waiver of privilege in these situations. I do not consider that the decisions in Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1349 and Stage 3 Productions Pty Ltd (in liq) v Pulbrook [2007] VSC 548 are of assistance. In both cases leave had been given to withdraw the admission prior to consideration of whether the documents were required to be produced and made available. Indeed, Harper J in Stage 3 gave that as the very reason for not requiring the relevant advice to be produced - see at [10]. 43Balnaves v Smith [2008] QSC 215 concerned whether privilege had been waived in respect of advice given. The relevant part of the affidavit said to result in the waiver of privilege simply referred to the fact that certain advice had been given and in response thereto the client had acted. The authorities have consistently held for a lengthy period of time that a mere reference to advice without the substance of it being disclosed will not give rise to a waiver of privilege - see for example Ampolex Ltd v Perpetual Trustee Co. (Canberra) Ltd (1996) 70 ALJR 603 at 607, and for a recent statement of the point see Osland v Secretary to the Department of Justice [2008] HCA 37. 44Obviously, it is a matter of fact in each case, whether there has been a waiver as the Full Court of the Federal Court said in Rio Tinto and as Hoeben J said in Adelaide Bank Limited v John Abdelkodous [2011] NSWSC 32. However, I find the approach taken by Hoeben J in that case to be persuasive in a case not so factually dissimilar from the present where explanations were provided associated with an application to set aside a default judgment. 45In my opinion, privilege has been waived in respect of the conference notes referred to in the 4 paragraphs to which I have referred. That does not cover the documents referred to in paragraph 4 of the Notice to Produce that is concerned with paragraph 36 of Ms Moore's affidavit. That paragraph appears only to be a conclusionary statement arising out of what has been dealt with in paragraphs 12, 13, 17 and 18. Conclusion 46Although I respectfully disagree with the Registrar's conclusion about client legal privilege, the Registrar's determination of the Motion was correct. Rule 21.10 applied and was not complied with by the terms of the Notice. The result is that present motion for review and seeking production of the documents must be dismissed. 47I make the following orders: (1) Cross-Claimants' Notice of Motion filed 14 October 2011 is dismissed. (2) The Cross-Claimants are to pay the Cross-Defendants' costs of the Motion.

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