Plaintiffs v Defendants

2 The proceeding originally commenced on 13 December 2004. The delay in the progress of the proceeding to date has been substantially due to problems encountered by the plaintiffs in pleading a statement of claim which would withstand challenge in this Court. Ultimately, the fourth, and current, version of the statement of claim was filed and served, pursuant to leave by Bongiorno J, in April 2007. Since then, the parties have been largely involved with issues relating to discovery.

3 The first plaintiff (to whom I shall refer as "the plaintiff") carries on the business of forest management and milling, processing and merchandising of timber products in Tasmania and elsewhere. The sixth defendant, the Wilderness Society Inc, is an incorporated association, which comprises members who have a special interest in environmental issues and in raising public awareness of environmental issues in Australia. In that capacity, the sixth defendant has engaged in public campaigns and activities for the purpose, inter alia, of raising public awareness of environmental issues in Australia.

4 In the present proceeding, the plaintiff alleges a number of acts of tortious conduct against the individual defendants and other persons arising out of events which are said to have occurred at the plaintiff's forest operation sites in Tasmania in 2003 and 2004. In particular, it pleads a number of tortious actions carried out by those persons: at Triabunna on 15 January 2003; at Triabunna on 15 February 2004; at Lucaston on various dates between 16 February 2003 and 4 June 2003, and, subsequently, on 24 March 2004; at the Styx 4A Coupe in the Styx Valley on 24 November and 25 November 2003; and at the Hampshire Mill site on 24 March 2004. The plaintiff, in respect of the conduct alleged against individuals at each of those locations, pleads three causes of action, namely:

(a) A cause of action based on intentional interference with contractual relations;

(b) Intentional injury to the first plaintiff in its trade and business;

5 In respect of each of those three causes of action, the plaintiff alleges that the Wilderness Society is liable for the actions of the particular individuals on three grounds, namely:

(a) That the actions of the individuals were carried out in the course of their employment by the Wilderness Society, by reason of which the Wilderness Society is vicariously liable for the wrongful act of those individuals.

(b) That the actions alleged against the individuals were carried out as agents for and on behalf of the Wilderness Society, by reason of which the Wilderness Society is liable for those wrongful acts.

(c) That, in carrying out the wrongful acts, each individual was acting in concert with the Wilderness Society to a common end.

6 I was informed by Mr I Waller SC, who appeared with Mr H Redd for the first plaintiff, that the claim relating to the Triabunna site, arising out of incidents which occurred there in 2004, has been resolved.

7 The sixth defendant has served three affidavits of documents, each affirmed by Gregory Roland Ogle, dated 20 November 2007, 16 January 2008, and 30 May 2008, respectively. The plaintiff's summons, which is the subject of the appeal, raises two principal issues. First, in its first and third affidavits of documents, the sixth defendant discovered a number of documents, stating that parts of them were masked. The sixth defendant claimed to be entitled to mask, or redact, parts of those documents, on the basis that those parts were either the subject of legal professional privilege or, alternatively, were irrelevant and confidential to the sixth defendant. The plaintiff challenges the right of the sixth defendant to mask or redact those parts of those documents, and seeks an order that the sixth defendant produce those documents free of any redaction. This part of the plaintiff's application affects 13 out of 53 documents discovered by the sixth defendant in its first affidavit, and 55 out of 84 documents discovered by the sixth defendant in its third affidavit of documents.

8 Secondly, the plaintiff seeks an order, under rule 29.08 of the Rules of the Supreme Court, that the sixth defendant make discovery of particular documents, or classes of documents, which were not discovered by the sixth defendant. In particular, the plaintiff seeks discovery of the following two categories of documents:

(a) Documents described as "constituent profiles" of 14 persons who, the plaintiff alleges, are or were connected with the sixth defendant, and whose actions are the subject of claims made by the plaintiff against the sixth defendant in this proceeding. During the course of submissions before me, the sixth defendant, through its counsel, provided to the plaintiffs one of those 14 documents, which it had, in the meantime, managed to locate.

(b) The plaintiff seeks discovery of particular categories of documents covering the period November 2002 to July 2003, namely, documents relating to meetings of the sixth defendant, travel records, and telephone records.

9 Mr Waller commenced by submitting that the sixth defendant was not entitled to mask parts of the documents in respect of which it had made discovery. He submitted that, under rule 29.04 of the Rules of the Supreme Court, a party must discover the entirety of a document which contains any information which is material to the issues in the case. He further submitted that, when such a party is called upon to produce a discovered document for inspection, that party is only entitled to mask part of the discovered document, if that part is either the subject of legal professional privilege, or if it is both irrelevant and the subject of confidentiality of a type recognised and protected by law. Mr Waller submitted that, in either case, the Court is not bound by the statement, on oath, of the party making discovery, asserting the basis of that party's entitlement to mask or redact part of the discovered document, when producing it to the other party. He submitted that the onus lies on the party, seeking to redact part of a discoverable document, to establish a legitimate basis upon which it claims to be entitled to do so. Unless, from the nature and contents of the document, the basis for claiming to redact part of it is clear, then the Court should not allow the party, making discovery, to produce for inspection the expurgated document, without first examining the document in order to ensure that the claim to censor part of it is legitimate.

10 In support of that proposition, Mr Waller referred me to a number of authorities, including Harris Scarfe Limited (Receivers and Managers appointed) (in liq) v Ernst & Young & Ors[1]; Telstra Corp v Australis Media Holdings & Ors[2]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd[3]; Candacal Pty Ltd v Industry Research and Development Board[4]; Rio Tinto Limited v Commissioner of Taxation[5] and Menkens v Wintour[6]. Mr Waller submitted that those cases departed from the principles stated by the Court of Appeal in GE Capital Corporate Finance Group v Bankers Trust Company[7], that the Court ordinarily does not disregard the oath of the party that the parts concealed are irrelevant, unless it appeared from the documents produced that that was not the case.

11 In the course of his submissions, Mr Waller referred, by way of example, to some of the documents which have been produced in a redacted form. He submitted that, when those documents are examined, particularly in light of other documents which have been discovered, and in the context of the facts asserted in the pleadings, doubt is cast on the claim by Mr Ogle, in the affidavits of documents affirmed on behalf of the sixth defendant, that the redacted parts comprised irrelevant material which was confidential to the sixth defendant. Mr Waller also submitted, by reference to those documents, that by masking such large parts of the documents produced for inspection, the sixth defendant had deprived those documents of their true character. He submitted that it is necessary that the masked parts also be produced, in order to give context and intelligibility to the remaining parts of the documents which have been produced unexpurgated.[8]

12 Mr Waller made similar submissions in relation to the documents, parts of which have been masked on the basis of a claim that they are the subject of legal professional privilege. He submitted that the onus lies on the party claiming privilege to establish that the documents, for which the claim is made, are privileged. A claim of privilege is not established by mere assertion that the privilege applies, unless that assertion is supported by the nature of the document discovered.[9] Mr Waller referred me to the 12 documents discovered by the sixth defendant, in relation to parts of which a claim for legal professional privilege is made. He submitted that neither the context, nature, nor content of the document provide support to the bare statement of the claim for privilege contained in the affidavits of Mr Ogle.

13 Mr Waller then turned to the second part of the plaintiff's application, namely, its claim for discovery of further documents pursuant to rule 28.09(2) of the Rules of the Supreme Court. The first category of document, sought in that application, consists of 14 "constituent profiles" in relation to persons, referred to in the plaintiff's claim, who are alleged to be associated with, or members of, the Wilderness Society. The sixth defendant has already discovered a number of such documents. Each of them provides the name of the "constituent", that person's address and telephone numbers, and a "membership summary", setting out the years during which that person has been a member of the Wilderness Society. The plaintiff has sought discovery of the sixth defendant's database of constituent profiles of the Wilderness Society, in respect of each person referred to in the plaintiff's statement of claim. Mr Ogle, in his affidavit affirmed 30 May 2008, confirmed that the sixth defendant had discovered nine constituent profiles, and that it does not have any database record of some constituent profiles for 48 other persons nominated by the plaintiff.

14 In paragraph 44 of his affidavit, Mr Ogle states:

"Except as discovered in these proceedings, the Wilderness Society Inc is not in possession of any constituent profile that contains any matter that relates to any of the alleged wrongful acts or any question in the proceeding."

15 As I have stated, this application initially related to the constituent profiles of 14 persons named in the plaintiff's statement of claim. During argument a constituent profile was produced for one of those persons, Simon Brown. It was explained to me that the sixth defendant had a number of persons on its constituent profile by that name, and that it had had difficulty identifying which constituent profile related to the "Simon Brown" referred to in the pleading. Mr Waller submitted that paragraph 44 of the affidavit of Mr Ogle does not deny that there are in the possession of the sixth defendant constituent profiles for the other 13 persons, who are the subject of this application. Since each of those persons is the subject of allegations in the statement of claim, if such a constituent profile exists, it would relate to the issues in the case. Accordingly, he submitted that the sixth defendant should make further discovery in relation to those constituent profiles.

16 The other category of documents claimed by the plaintiff, in its application for further discovery, relates to three classes of document for the period November 2002 to June 2003. The first class of document sought by the plaintiff consists of documents (whether final or draft) including invitations, agendas, papers circulated and tabled, and minutes, in respect of meetings of the Wilderness Society for the period November 2002 to July 2003. The sixth defendant has discovered documents, meeting that description, for the period July 2003 to April 2004. The plaintiff's solicitor has written to the sixth defendant's solicitor, requesting an explanation why similar documents were not discovered for the antecedent period, from November 2002 to June 2003. In response, the solicitor for the sixth defendant stated that the reason the sixth defendant has not discovered such documents for that period " ... is that those documents do not relate to any question in the proceeding". Mr Waller submitted that that proposition is misconceived, since the proceeding deals with torts alleged to have occurred from the period November 2002 to March 2004. In particular, the incident constituting the first Triabunna claim is alleged to have occurred on 15 January 2003, and the Lucaston claim includes incidents which are alleged to have occurred in the period from February to June 2003. Mr Waller submitted that the fact that the sixth defendant has discovered meeting papers, of the kind now sought by the plaintiff, for the period July 2003 to April 2004, gives rise to an inference that there are in the possession of the sixth defendant similar documents relating to the period November 2002 to June 2003.

17 The second class of document, sought in respect of the period November 2002 to June 2003, comprises travel records held by the sixth defendant. The sixth defendant has discovered travel records for the period July 2003 to April 2004. Again, Mr Waller relies on an inference that the sixth defendant, similarly, does have in its possession similar documents for the period November 2002 to June 2003, of which it should make discovery.

18 Finally, the sixth defendant has made discovery of its monthly Telstra itemised telephone bills from 1 August 2003 to 1 April 2004. However, it has refused to discover telephone bills for the period November 2002 to June 2003, on the basis that they do not relate to any question in the proceeding. Mr Waller submitted that the telephone bills for that period are discoverable, because they may lead to a train of inquiry, or throw light on communications between various members or volunteers of the sixth defendant at a time at which it is alleged that the wrongful acts occurred.

19 In response, Mr J Burnside QC, who appeared with Mr R Attiwill for the sixth defendant, commenced his submissions by questioning the purpose and motivation of the plaintiff in seeking further discovery. Mr Burnside took me through the history of discovery on behalf of the sixth defendant. He submitted that the sixth defendant had been conscientious in endeavouring to discover all relevant documents, and that it had acted in a thorough and proper manner in doing so. The sixth defendant filed and served two affidavits of documents, affirmed respectively on 20 November 2007 and 15 January 2008. Subsequently, the plaintiff issued its summons seeking further discovery on 20 March 2008. In response, the sixth defendant furnished a third affidavit of documents dated 30 May 2008, together with an affidavit affirmed by Mr Ogle on its behalf, addressing the matters raised in the summons. In addition, the sixth defendant's solicitor, Mr Farouque, swore an affidavit dated 2 June 2008, describing the process undertaken in redacting the documents which had been the subject of discovery. After the proceeding before Master Evans was adjourned, the sixth defendant provided a further affidavit, affirmed by Mr Ogle, dated 30 June 2008, waiving the redaction of some of the documents of which discovery had been made, and elaborating on the bases on which the sixth defendant claimed a right to redact parts of other documents, which had been discovered.

20 Mr Burnside submitted that, by contrast, the claim by the plaintiffs in this proceeding is, in monetary terms, relatively small. In total, the plaintiffs claim special damages amounting to some $113,000 in respect of the four campaigns which are the bases of those claims. The proceeding has now been on foot for almost four years, and it has been the subject of exhaustive interlocutory debate. The plaintiffs make serious allegations against the sixth defendant. Mr Burnside submitted that the applications which are now before me constitute a fishing expedition by the plaintiff, in order to trawl for material to establish allegations made by it, which it as yet cannot prove. Mr Burnside also submitted that these proceedings have been issued in order to put pressure on the Wilderness Society, and to tie up its resources, during the litigation.

21 With that background, Mr Burnside then turned to the issues arising from the redaction by the sixth defendant of documents discovered by it. He submitted that, on a proper reading of the affidavits of documents affirmed on its behalf, the sixth defendant had not discovered documents in a redacted form, but, rather, had foreshadowed its resistance to the production of parts of those documents. Mr Burnside submitted that it is now an established practice, particularly in Victoria, for discovered documents to be produced for inspection, with parts of them redacted. He submitted that a party, producing a discovered document, is entitled to mask or redact parts of it, if those parts are the subject of legal professional privilege, or, alternatively, if those parts of the documents are both irrelevant and confidential to the extent that it would be unreasonable to require the disclosure of those parts of the document to the other party. Mr Burnside submitted that, in fact, it is not necessary for a party, producing a discovered document, to justify a redaction of that document on the basis of confidentiality, and that it is sufficient to redact a document on the basis that the parts so expurgated are irrelevant to the matters in issue in the trial. Nonetheless, he submitted that in this case the sixth defendant had appropriately made out its right to mask parts of the discovered documents, on their production to the plaintiff, on the basis of legal professional privilege, and further or alternatively on the basis that the parts so masked are irrelevant and confidential to the sixth defendant.

22 Mr Burnside based the proposition, that the masked parts of the discovered documents relate to confidential matters, largely on the affidavit of Gregory Roland Ogle affirmed 30 June 2008. In that affidavit Mr Ogle described the adversarial, and what he described as "hostile", relationship between the plaintiff and the sixth defendant in respect of the issue of logging of Tasmanian forests. He then stated the claim to confidentiality in the following terms:

"34 Except for those documents discovered by the Wilderness Society Inc that have been redacted on the grounds of privilege, those parts of documents that have been redacted in this proceeding have been redacted as the redacted parts do not relate to any question in the proceeding. The redacted parts concern the campaigns and tactics of the Wilderness Society Inc but not the alleged wrongful acts and also contain very sensitive internal information regarding the policies, finances and administration of the Wilderness Society Inc. The redacted parts are also confidential. None of the documents has been publicly disclosed.

1. The Wilderness Society Inc fears that disclosure of this information will disclose to Gunns Limited the tactics, strategies and operation of the Wilderness Society Inc so as to give Gunns Limited a significant collateral advantage in its conduct of adversarial dealings with the Wilderness Society Inc concerning the conservation, logging and management of Tasmania's forests and Gunns Limited proposal to build the pulp mill. The Wilderness Society Inc fears disclosure of this information will significantly disadvantage it in its current and future dealings in relation to Gunns Limited and will cause it irreparable harm in such dealings."

23 Mr Burnside submitted that, as a matter of practicality, it is useful to draw a distinction between two broad categories of documents, when considering the right of a party to mask or redact parts of them on production to the other side. The first category consists of documents such as minutes, agendas and the like. It might be readily expected that, in that category of document, there would be a substantial amount of irrelevant and confidential material, which could be readily excised from the discovered document, without adversely affecting the intelligibility or meaning of the part of the document produced to the other party in litigation. The second category comprises documents which, from their description, may not be so readily susceptible of redaction, without impacting on the intelligibility of the residue of the document. He referred me to nine documents which would answer that description, of which the sixth defendant has made discovery, and parts of which had been redacted by the sixth defendant upon production to the plaintiff. He submitted that it would be appropriate for me to examine those documents, in unredacted form, in order to be assured that the redaction process undertaken by the sixth defendant did not affect the meaning of the parts which had been disclosed to the plaintiff on production. Mr Burnside submitted that an examination of those documents would be sufficient to confirm the statements, by Mr Ogle and Mr Farouque, in their affidavits, that the parts redacted in the discovered documents are not relevant to any issue in the case and are confidential.

24 Mr Burnside then turned to the second limb of the plaintiff's amended application to the Master, namely, the application under Rule 29.08 for further discovery. Mr Burnside drew my attention to paragraph 42 of the affidavit of Mr Ogle, affirmed 30 May 2008, which stated that nine of the persons referred to in the plaintiff's fourth statement of claim, and in its further particulars, as having participated in the wrongful acts, were, in the relevant period between 2002 and 2004, members of the Wilderness Society. Two of those persons are among the 13 persons, in respect of whom the plaintiff seeks discovery of constituent profiles. Accordingly, he submitted that the sixth defendant had identified, sufficiently, which of the 13 persons, the subject of this application, were members of it at the time of the alleged torts. He submitted that the constituent profiles so far discovered, and referred to in this application, demonstrate that those documents do not relate to the question whether a particular person was at the material time was a volunteer (as distinct from a member) of the Wilderness Society. Accordingly, he submitted that Mr Ogle was correct to aver, in his affidavit, that the Wilderness Society is not in possession of any constituent profile which contains any matter relating to any of the wrongful acts or any question in the proceeding.

25 Mr Burnside submitted that there is no basis established by the plaintiff for the proposition that the sixth defendant had failed to discover relevant documents for the period November 2002 to June 2003. First, he submitted it is not relevant to discover telephone records, for the purpose of enabling the plaintiff to identify telephone calls between the Wilderness Society and its members at or about the time at which an incident is alleged to have occurred in the statement of claim. He submitted that the records discovered for the later period (after June 2003) relate to a different issue, namely, whether there were telephone conversations between officers of the Wilderness Society and officers of Greenpeace, during that period. Thus, the discovery by the sixth defendant of the telephone records for the period after July 2003 does not constitute a basis for inferring that the sixth defendant must have in its possession telephone records, for the period November 2002 to June 2003, relevant to any issue in this case.

26 Similarly, Mr Burnside submitted that the travel documents of the sixth defendant are not relevant to any issue in the case. The fact that the Wilderness Society may have in its possession documents evidencing travel by its members to and from Tasmania, at the time of a particular incident referred to in the statement of claim, does not prove the involvement of the member in a particular incident in Tasmania, or that the sixth defendant was complicit in the involvement of that member in that incident.

27 Finally, Mr Burnside submitted that the plaintiff has not established that the sixth defendant may have in its possession meeting papers for the period November 2002 to June 2003, relevant to the issues in this case. Mr Burnside referred me to paragraphs 29 and following of the affidavit of Mr Ogle affirmed 30 May 2008, which, in substance, deposes that, apart from the meeting papers so far discovered, the sixth defendant is not, and has not been, in possession of meeting papers that relate to any of the alleged wrongful acts or to any of the questions in the proceeding. Mr Burnside submitted that the plaintiff has not established any basis upon which Mr Ogle's assertion to that effect should be disregarded. The fact that the sixth defendant has discovered some meeting papers and agendas, albeit redacted, for the later period, indicates that the sixth defendant has an appropriate understanding of which of those documents may be relevant.

28 The principles, applicable to the redaction by the sixth defendant of documents produced for inspection, are relatively uncontroversial and may be shortly stated.

29 Rule 29.02 and Rule 29.04 of the Rules of the Supreme Court require a party to a proceeding, upon service of notice on it by any other party to the proceeding, to discover any document which is or has been in that party's possession "relating to any question raised by the pleadings". Under rule 29.09, the party making discovery is required to produce the documents, so discovered, for inspection to the other party upon request. Rule 29.04(d) entitles a party making an affidavit of documents to state, in that affidavit, any grounds of privilege which it seeks to assert in respect of a document discovered by it.

30 Strictly, a party is required to produce for inspection the whole of a document discovered by it, notwithstanding that parts of that document may be irrelevant to the issues in the case.[10] However, there has now been a long established practice whereby a party, making inspection of a discovered document, is entitled to seal up or mask parts of the document which are irrelevant to the proceeding, and of which the party resists making inspection.[11] In particular, it has been recognised that a party is entitled to redact irrelevant parts of a document discovered by it, where the party has a legitimate claim on the basis of confidentiality or the like.[12]

31 Where there is a dispute as to the right of a party, making inspection, to mask or redact part of the discovered document, the Court may, in an appropriate case, inspect the document in its unmasked form, in order to assess the claim that the masked or redacted parts of the document are irrelevant to the issues in the case, and are parts which, by their nature, attract a valid basis for exclusion from the inspection processes.[13] In assessing the claim of a party to be entitled to mask up part of a discovered document, it is important to ensure that the redaction of irrelevant parts of the document does not create gaps affecting the intelligibility or meaning of the remaining portions of the document which are produced on inspection. In Telstra Corp v Australis Media Holdings & Ors[14], McLelland CJ in Eq cautioned:

"There is a serious risk that too assiduous a masking of documents on the grounds of irrelevance will create gaps affecting the ready comprehensibility of the remaining portions of the document and of the context in which those portions appear. If for this, or any other, reason, masking on the ground of irrelevance would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document, then such masking is not justified."[15]

32 There was some debate before me as to whether the affidavit of the party making discovery, as to the irrelevance and confidentiality of the parts redacted, is conclusive. In GE Capital Group Limited v Bankers Trust Co[16], the Court of Appeal regarded the oath of the party, making discovery, to be conclusive, save where that oath appeared to be in conflict with any admission in the pleadings or with any document discovered in the pleadings, or save where the circumstances of the case indicated to the contrary.[17] There is now a substantial body of Australian authority to the contrary, and which supports the proposition that, where there is a dispute as to the right of a party to redact part of a discovered document, it is for the Court to determine, on the material before it, whether that party had a right to do so.[18]

33 Ultimately, the onus lies on the party resisting production of the whole of the document to establish an appropriate basis for doing so.[19] No doubt, in a number of cases, the nature and description of the document may be sufficient to entitle a Court to be guided solely by the oath of the party, making discovery, that the redacted parts are irrelevant and confidential. On the other hand, there may be other cases where either the nature of the document, or other material, may be sufficient to put in doubt the claim by the deponent that a redacted portion of a document is irrelevant and unconfidential. As I stated, it is recognised, and not uncommon, for a Court, in an appropriate case, to inspect some or all of the redacted documents.

34 In determining the entitlement of a party to mask or redact a part of a discovered document, the courts have emphasised that the test is what is necessary to ensure the attainment of justice between the parties. The Rules of Court are designed to serve and enhance the ends of justice, and to facilitate the resolution and determination of disputes between parties. It has been recognised that the rules must not be permitted to become an instrument of oppression, or to cause unnecessary unfairness to one or other party in litigation. Thus in Grey v Associated Book Publishes (Aust) Pty Ltd (in liq)[20], Branson J stated:

"The Court has a discretion to order, or not to order, discovery or inspection of discovered documents and it will endeavour to avoid unnecessary discovery or inspection. The Court will be guided by what is necessary to ensure justice between the parties."[21]

35 The precise basis, upon which a party is entitled to mask or redact irrelevant parts of documents discovered by it, has not been defined in the authorities. In Telstra Corp v Australis Media Holdings & Ors[22], McLelland CJ (in Eq) referred to the practice of permitting the exclusion of irrelevant parts of documents from inspection " ... in order to avoid infringement, for no legitimate purpose, of interests of privacy and confidentiality, and thus to avoid injustice". Later in his judgment, his Honour identified the relevant question as "... whether it is apparent that there are, or may be, substantial privacy or confidentiality interests which ought to be given protection".[23] Those passages were referred to with approval by McKenzie J in Menkens v Wintour[24].

36 In that respect, some assistance may be derived from the principles which are applied where a party resists inspection of relevant documents on the basis that they are confidential. In Mobil Oil Australia Pty Ltd & Anor v Guina Developments Pty Ltd & Anor[25], Hayne JA described the protection provided by the law, where a party is required to produce confidential documents, the inspection of which by trade rivals may have an irreparable adverse consequence to the party so providing production. In the present case, the plaintiff and the sixth defendant are not trade rivals as the parties who were before the Court in Mobil Oil. However, it is clear, on the materials before me, that they are very much "in competition" with each other, in respect of the right of the plaintiff to conduct forestry operations in parts of the Tasmanian wilderness. The first plaintiff seeks to assert and protect its lawful right to carry out those operations in those areas. On the other hand, the sixth defendant, the Wilderness Society, seeks to advance its lawful objectives of protecting the environment, raising public awareness in Australia of environmental issues, and planning, coordinating and supporting public campaigns opposing the harvesting of timber and the sale and export of wood chips. The affidavit of Mr Ogle, affirmed 30 June 2008, demonstrates vividly the competitive and adversarial public stances adopted by the two parties in respect of that issue. In my view, in an appropriate instance, the law would permit either party to withhold from inspection parts of documents discovered by them in this litigation, where it is appropriately established that those parts are both irrelevant to the proceeding and, if disclosed, would reveal to the other party confidential information, such as strategies, financing, organisation and the like, relating to the manner in which either party seeks to assert and maintain its public position in relation to the issue of forestry operations in the Tasmanian wilderness. Although I apprehended that in their written outline, counsel for the plaintiff sought to contend that the type of interest, which I have just described, would not be protected by law, in oral submissions Mr Waller did accept that if the redacted portions of the documents were both irrelevant, and related only to the broader strategies, financing structure, and the like, of the Wilderness Society, the sixth defendant would be entitled to redact those parts of the document, provided that, by so doing, the sixth defendant did not adversely affect or alter the meaning of the remaining portions of the document produced to the plaintiff on inspection. In my view, that position, taken by Mr Waller, is correct.

37 The sixth defendant has also masked small parts of some 12 documents, discovered by it, on the basis that those parts are the subject of legal professional privilege. The plaintiff challenges the right of the sixth defendant to redact those parts of the documents on that basis. The relevant principles on this question are not controversial and may be briefly stated. A document which is created for the "dominant" purpose of obtaining legal advice may be the subject of legal professional privilege.[26] The party asserting the privilege bears the onus of establishing its entitlement to rely on it.[27] Where the existence of legal professional privilege is in issue, the Court is not bound by the ritual incantation of a formula asserting privilege by the party resisting production of the document.[28] In an appropriate case, the Court may inspect the documents, which are the subject of the claim for privilege, in order to determine whether the claim for privilege is well founded.[29]

38 In the present case, Mr Waller submitted that the claim by the sixth defendant, that redacted parts of discovered documents are either irrelevant and confidential, or alternatively are the subject of legal privilege, should not be accepted at face value. He drew my attention to some of the documents, which have been produced in redacted form. He submitted that an examination of those documents reveals that the claim of the sixth defendant, to be entitled to exclude parts of the documents from inspection, is called into serious doubt, on a proper analysis of the documents produced to date. In particular, he drew my attention to documents 11, 27 and 31. He submitted that the parts of document 11, which have been redacted on the basis of legal professional privilege, appear to be very small in compass. He submitted that, given the context of the excisions, and the short compass of them, it is doubtful whether those parts of that document were brought into existence for the dominant purpose of obtaining legal advice. Similarly, Mr Waller drew my attention to other parts of document 11, and parts of documents 27 and 31, and to the historical context in which those documents came into being, in order to call into question the claim made by Mr Ogle in his affidavit that the excised parts of those documents were both irrelevant and confidential. For example, document 27 is a document entitled "Draft Strategy for Gunns Markets Campaign - Background". Although it bears the date 5 January 2003, it is common ground that the correct date of the document is 5 January 2004. Mr Waller submitted that that document was brought into existence less than two months after the incidents which occurred in the Styx 4A Coupe, which are the subject of this litigation, and one month before the second incident at Triabunna, which was (but no longer is) the subject of this litigation. He submitted that, in that context, it "beggars belief" that the large parts of the document, excised from production for inspection, could relate to irrelevant and confidential matters.

39 In the course of submissions before me, Mr Burnside, with the agreement of Mr Waller, produced to me a folder containing the 12 documents, parts of which have been redacted on the basis of a claim for legal professional privilege. Those documents are numbered 11, 50 (being extracts of document 50), documents 76 to 79, and documents 81 to 86. Coincidentally, those documents also contain substantial parts which have been redacted on the basis of a claim that those parts are irrelevant, and confidential. After I had the opportunity to peruse those documents overnight, I considered that I was in the position to make a decision as to the right of the sixth defendant to redact, not only those parts of the documents which had been masked on the basis of legal professional privilege, but also the larger parts of the documents, which had been masked on the basis of irrelevance and confidentiality. It also occurred to me that the documents which had been provided to me by Mr Burnside were not a selective sample of documents redacted on the grounds of irrelevance and confidentiality. Rather, they were somewhat a "random" sample, because they had been produced to me on the basis that other (smaller) parts of them had been redacted for legal professional privilege.

40 Accordingly, on the second day of the hearing before me, I expressed the view that it might be appropriate that I use those documents, and any other documents identified by the parties, as appropriate samples, by which to test whether the sixth defendant had undertaken a valid exercise in redacting parts of the discovered documents on the basis of irrelevance and confidentiality. Mr Waller expressed preference for the position that I examine all of the documents redacted by the plaintiff. However, I was reluctant to accept that responsibility. Rather, it seemed to me more realistic that I examine a sample of documents, nominated by the parties, in order to test the claim by the sixth defendant that it had carried out redaction of discovered documents by masking only confidential and irrelevant parts of them.. Accordingly, Mr Waller nominated further redacted documents to be examined by me. Those documents are numbered 23, 27, 31, 36, 39, 42, 48, 50 (additional to the parts to which privilege have been claimed), 57, 63, 70, 88, 96, 98, 100, 105, 107, and 112.

41 I turn, first, to the documents, parts of which have been redacted on the grounds of legal professional privilege. As I have stated, they were contained in the first folder provided to me by Mr Burnside in the course of submission. In the three affidavits of documents affirmed by him on behalf of the sixth defendant, Mr Ogle has claimed that the parts of the documents, which are redacted on the basis of privilege, refer to confidential communications for the dominant purpose of obtaining or receiving legal advice. Apart from the parts redacted in documents 76, 78, 81, 83 and 85, I am satisfied that the parts redacted in the other documents may be the subject of a valid claim for legal professional privilege. Further, those parts do not relate to matters that are relevant in the litigation, and, on their face, relate to matters which are confidential to the sixth defendant. Documents 76, 78, 81, 83 and 85 are each agenda of meetings of the sixth defendant's national management committee. I have some doubt whether the parts which have been redacted, on the basis of legal professional privilege, refer to communications for the dominant purpose of obtaining or receiving legal advice. Certainly, they relate to legal matters which are irrelevant to the present proceeding. However, and in any event, the topic identified in each of those redacted parts is, I consider, sufficiently confidential, and irrelevant to these proceedings, to justify the redaction of them.

42 As I have stated, the sixth defendant, in producing the documents to which I have just referred, has also redacted significant parts of those documents, on the basis that they are irrelevant to the proceeding, and are confidential to the sixth defendant. Having read each of those documents, and the parts masked by the sixth defendant, I am satisfied that the claim by the sixth defendant to redact them, on that basis, is legitimate. Each of the parts so redacted is not relevant, and is sufficiently confidential to the sixth defendant, in the manner which I have already discussed, to justify the sixth defendant redacting it. I do not consider that the process of masking those parts of the documents has altered the intelligibility or meaning of the parts, which have been produced to the plaintiff.

43 One of the documents, to which I have just referred, is document number 11, which was the subject of specific submission to me by Mr Waller. In the course of his submissions, Mr Waller particularly focussed on the fourth page of that document, under the sub-heading "Where to with the Styx?" The document, containing that page, which was produced to the plaintiff, left intact the first line, and most of the second line, of the section under that sub-heading. It then redacted the balance of the second line and the next 11 lines under the same sub-heading. The document purports to be the minutes of a strategic meeting dated 29 July 2003. Mr Waller relied on the circumstance that the events in the Styx 4A Coupe in the Styx Valley, which are the subject of this proceeding, occurred four months later in November 2003. However, having had the opportunity to read the parts of that section of the document which were expurgated when produced to the plaintiff, I am satisfied that those parts do not relate to any of the issues in the case, bearing in mind the broad test applied by our Courts for the purposes of determining whether a document should be discovered and thus produced to the other party in litigation.[30] I am also satisfied that they relate to matters which are confidential to the sixth defendant, in the sense I have already discussed.

44 I turn, next, to the folder of documents, comprising documents identified by the parties, parts of which have been redacted by the sixth defendant on the basis of irrelevance and confidentiality. That folder contains two documents, numbered 27 and 31, which were the subject of specific submission to me by Mr Waller. I shall commence by examining them. Document 27 is entitled "Draft Strategy for Gunns Markets Campaign - Background". It bears the date 5 January 2003, but it is common ground that the correct date of the document should be 5 January 2004. Mr Waller pointed out that that document was created six weeks after the two incidents, pleaded by the plaintiff, at the Styx 4A Coupe in the Styx Valley in November 2003, one month before the second incident pleaded by the plaintiff (but not now relied on) at Triabunna in February 2004, and two months before the incident pleaded by the plaintiff at the Hampshire Mill Site on 24 March 2004. Having read the document, I am satisfied that none of the redacted sections do relate to the matters which are in issue in the present proceeding. They relate to issues such as general strategy and the like which, I consider, are sufficiently confidential to the sixth defendant to justify those parts being excised from the discovered document on production of a copy of it to the plaintiff.

45 Document 31 is entitled "Tassie Campaign Meeting Hobart 21 January 2004 Minutes". I have read that document, taking into account the same temporal context referred to by Mr Waller in his submissions to me. Having read the document, I am satisfied that none of the parts redacted are relevant to the matters which are in issue in this case, and that they are sufficiently confidential to justify the sixth defendant masking them on production to the plaintiff.

46 I have examined the balance of the documents provided to me by the parties, parts of which have been masked on the basis that those parts are confidential and irrelevant. Having had the opportunity to read and examine those sections of the documents, I am satisfied that the redaction of them by the sixth defendant is appropriate on the basis that the parts redacted are not relevant to the issues in the case, and that they contain matters which are confidential to the sixth defendant, in the meaning which I have already discussed.

47 Accordingly, in respect of the documents which have been provided to me for my examination, I am satisfied that the sixth named defendant has not redacted parts of the document which it ought to have disclosed, unredacted, to the plaintiff in this proceeding. In his submissions to me, Mr Waller pointed to the circumstance that, in the course of discovery, the sixth defendant had withdrawn its claim to redact parts of some of the discovered documents, which had previously been produced to the plaintiff in a redacted form. Mr Waller submitted that that process undermines the earlier assertion, by Mr Ogle in his affidavit of documents, that the parts of discovered documents which had previously been redacted (but in respect of which the redaction had been later reversed) were irrelevant and confidential. On the other hand, it might be fairly pointed out that the fact that the sixth defendant reviewed, and changed its position, about some of the redacted parts of the document, reveals that it has, by and large, been conscientious in selecting the parts of the documents which are to be masked on production to the plaintiff. Certainly, my review of those documents which have been provided to me, unredacted, for my examination, has satisfied me that, at least in respect of those documents, the sixth defendant has acted appropriately in selecting the parts of the documents which are irrelevant, and in respect of which a claim for confidentiality might be made. I am satisfied that, in addition, the redaction of those parts of the documents does not unfairly impinge on the intelligibility or meaning of the parts which have been produced, unredacted, to the plaintiff. The process thus undertaken by the sixth defendant reinforces the claim by Mr Ogle, in his affidavit, that the parts redacted are irrelevant and confidential. Based on that analysis, and on the affidavit of Mr Ogle, I consider that the sixth defendant has thus discharged the onus on it, that it has appropriately redacted the parts of the documents which have been produced to the plaintiff on discovery. Accordingly, I do not consider that the plaintiff should succeed on that part of the summons, which was before Master Evans, and by which it sought production to it of the documents, discovered by the sixth defendant, in an unredacted form.

48 The second part of the application to the Master, which is the subject of this appeal, comprised an application by the plaintiff for further discovery under rule 29.08(2) of the Rules of the Supreme Court. That rule provides:

"Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any action in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating -

(a) whether that document or any, and if so what, document or documents of that class is or has been in that party's possession; and

(b) if it has been but is no longer in that party's possession, when the party parted with it and that party's belief as to what has become of it."

49 The first part of the plaintiff's application for further discovery under rule 29.08 consisted of an application that the sixth defendant make discovery of "constituent profiles" for 14 persons identified in its summons. As I have stated, in the course of submissions, Mr Burnside handed to Mr Waller the constituent profile for one of those persons. The sixth defendant has discovered an 11 page bundle of documents entitled "Constituent Profile". Each such document contains the name, address and telephone numbers of a particular named individual, and contains details of that person's membership with the sixth defendant. As a consequence of that discovery, the plaintiff by its summons sought discovery of constituent profiles in relation to some 128 further persons. Each of those persons were either referred to in the pleadings, or in documents discovered by one or other of the parties in the proceeding. Subsequently the number of persons in respect of whom the constituent profiles were sought by the plaintiff appears to have narrowed. Mr Ogle, in his affidavit of 30 May 2008, deposed that the sixth defendant does not have any database record of, and could not generate constituent profiles for, 48 of the named individuals. In paragraph 42 of his affidavit, Mr Ogle then stated that he had examined constituent profiles for the remaining persons named in Annexure A of the summons. He then provided the names of nine persons, alleged in the statement of claim, or in the plaintiff's further and better particulars, to have participated in any of the alleged wrongful acts, who were, in the period 2002 to 2004, members of the Wilderness Society. Two of those persons - Jason Coles and Rebecca Hubbard - are among the 13 persons in respect of whom the plaintiff claims to be entitled to a constituent profile by further discovery. In paragraph 44 of his affidavit, Mr Ogle then stated:

"Except as discovered in these proceedings, the Wilderness Society Inc is not in possession of any constituent profile that contains any matter that relates to any of the alleged wrongful acts or any question in the proceeding."

50 Mr Waller submitted to me that the sixth defendant has failed to reveal whether it has in its possession constituent profiles for 11 of the persons nominated by it, as well as for Coles and Hubbard. He submitted that the sixth defendant is obliged to discover the constituent profiles for Coles and Hubbard, as well as for any of the other 11 persons named by it, in respect of whom the sixth defendant holds constituent profiles. Mr Waller contended that the constituent profiles are relevant for two reasons. First, they reveal whether the nominated person, who is referred to in the pleadings, was at any relevant time a member of, or in any other way associated with, the sixth defendant. Secondly, the constituent profiles, which have been discovered, disclose the telephone numbers of the members to whom they relate. Those telephone numbers are relevant, because they may be connected with the telephone numbers of persons who, according to telephone records discovered by the sixth defendant, were contacted by, or in telephone contact with, the sixth defendant, at or about the time of the commission of one of the torts alleged in the statement of claim.

51 In response, Mr Burnside submitted that the affidavit of Mr Ogle made it plain that, of the list of persons nominated by the plaintiff, the sixth defendant only has constituent profiles in respect of two of the 13 persons, with whom the proceedings are now concerned, namely, Jason Coles and Rebecca Hubbard. He submitted that Mr Ogle's affidavit of 30 May is sufficient verification of the membership of those two persons of the sixth defendant at the relevant times referred to by Mr Ogle. Further, he submitted that in any event the constituent profiles are not discoverable for the purpose of disclosing to the plaintiff the telephone numbers and addresses of members of the sixth defendant. Mr Burnside expressed concern that if that information was revealed to the plaintiff, and if such members were contacted by the plaintiff for the purpose of giving evidence in this case, that might deter persons from joining, or becoming volunteers of, the sixth defendant.

52 In my view, the constituent profiles do have one relevant purpose in the proceeding, namely, identifying whether a particular person, referred to in the plaintiff's statement of claim, was, at the time of a relevant event alleged in the statement of claim, a member of the sixth defendant. Mr Ogle, in his affidavit, has admitted, on behalf of the sixth defendant, that Jason Coles was a member of the sixth defendant for the period 2002 to 2004, and that Rebecca Hubbard was a member of the sixth defendant from 27 May 2003 to 2004. That admission is binding on the sixth defendant. In my view, given the making of that admission on behalf of the sixth defendant, it is not necessary for the sixth defendant to discover to the plaintiff the constituent profiles in respect of those two persons.

53 Further, as I understand it, the import of Mr Ogle's affidavit of 30 May 2008 is that, apart from those two persons, the sixth defendant does not have a constituent profile, for any of the remaining 11 persons now nominated by the plaintiff, evidencing that they were members of the Wilderness Society for the period in question. Nothing has been put to me which would, in terms of rule 29.08(2), make it appear that there may be in the possession of the sixth defendant constituent profiles for the other 11 persons now nominated by the plaintiff. Thus, there is no basis for an Order under Rule 29.08 in respect of those documents.

54 For the purposes of completeness, I reject the submission on behalf of the plaintiff that the constituent profiles are discoverable for the purpose of identifying the telephone numbers of particular members of the Wilderness Society. It is true that it is possible that the provision of those numbers may assist the plaintiff to link those members with telephone calls made to, or received from, the Wilderness Society, at about the time of particular incidents referred to in the statement of claim. However, any such link would, as a matter of evidence, be some steps removed from the issues in the case. Certainly, it would not have the immediate connection with the issues of the case that the documents, which were the subject of the decision of the Court of Appeal in Board v Thomas Hedley & Co Limited[31], had. That additional purpose, argued by Mr Waller in his oral submissions, would not justify the making of an order under rule 29.08(2) in respect of the constituent profiles.

55 In its third affidavit of documents dated 30 May 2008, the sixth defendant discovered, as documents 76 to 116, minutes and agenda of the National Management Committee, the National Campaign Committee, and the Forest Working Group, of the sixth defendant, for the period July 2003 to March 2004. The plaintiff seeks discovery of "documents (whether final or draft) including invitations, agendas, papers circulated and tabled, and minutes in respect of meetings of the kind discovered in paragraphs 76 to 116 of the third affidavit of documents ... for the period November 2002 to July 2003".

56 The Triabunna 2003 claim, pleaded in the statement of claim, is based on torts alleged to have been committed on 15 January 2003. The Lucaston claim, pleaded in the statement of claim, is based on torts alleged to have occurred on various dates between 16 February 2003 to 4 June 2003. Mr Waller submitted that I should find that the sixth defendant does have meeting papers for the period November 2002 to June 2003, which are relevant to the matters in issue in this proceeding, based on an inference drawn from the discovery by the sixth defendant of the meeting papers for the period July 2003 to March 2004. He further submitted that that inference is strengthened by the circumstance that the sixth defendant has discovered travel documents and telephone records for the period July 2003 and following, but that it has failed to discover like documents for the period November 2002 to June 2003.

57 In response, Mr Burnside submitted that the fact that the sixth defendant had discovered some documents for the period from June 2003 revealed that the sixth defendant does properly appreciate that such documents are discoverable, if they relate to any of the matters in issue in the case. Mr Burnside referred to and relied on the affidavit of Mr Ogle of 30 May 2008, which stated that, apart from the meeting documents discovered in the third affidavit of documents of the same date, the sixth defendant does not have, and has not had, in its possession documents in respect of meetings, which relate to any of the alleged wrongful acts or to any of the questions in the proceeding. Mr Burnside submitted that, in terms of rule 29.08(2), the plaintiff has not pointed to any relevant matter which makes it appear that there may be, or have been, in the possession of the sixth defendant meeting documents, other than those discovered by the sixth defendant.

58 In my view, the submission of Mr Burnside on this aspect should be accepted. As I have already stated, I have had the opportunity to examine a number of the meeting documents discovered by the sixth defendant, parts of which have been redacted. I have upheld the right of the sixth defendant to mask or redact those parts of those documents. It is plain that, although the sixth defendant does have meeting documents for the period June 2003 and following, which it has discovered to the plaintiff, the unredacted parts of those documents, produced to the plaintiff, are not particularly voluminous. The fact that, in total, the sixth defendant does not possess a significant amount of documentation after June 2003, relating to the issues in this case, weakens the argument on behalf of the plaintiff, that I should infer from the discovery by the sixth defendant of meeting papers after June 2003, that there are in the possession of the sixth defendant similar documents relating to the matters in issue for the antecedent period. In those circumstances, the plaintiff has not pointed to any matter which sufficiently disturbs what has been stated, clearly, in his affidavit by Mr Ogle. Thus the plaintiff has not made out any basis upon which I should make an order in respect of the meeting papers, for the period November 2002 to June 2003, under rule 29.08(2).

59 In its third affidavit of documents, the sixth defendant discovered, as item 117, a bundle of Qantas invoices and statements for the sixth defendant for the period 31 July 2003 to 30 April 2004; as item 118, a bundle of Virgin Blue invoices for "various States"; and as item 119, a bundle of Spirit of Tasmania invoices for "various States". In submission, it was put to me that the Virgin Blue invoices and travel records discovered by the sixth defendant only relate to the period August 2003 to February 2004, and that the Spirit of Tasmania invoices discovered are for the period November and December 2003.

60 The plaintiff maintains that the sixth defendant should discover travel records for the period November 2002 to June 2003. It was submitted that the documents are relevant because, first, they may demonstrate the presence in Tasmania of particular persons, referred to in the statement of claim, at or about the time of the alleged torts. Secondly, it was submitted that the records are relevant, if they disclose that the sixth defendant paid the travel expenses of those such persons to attend Tasmania at or about the time of the alleged torts.

61 In response, Mr Burnside submitted that the plaintiff has not pointed to any matter which indicates that the sixth defendant has in its possession travel records, other than those already discovered by it, relating to the issues in the case. In the third affidavit of documents dated 30 May 2008, in which travel records were discovered, Mr Ogle, on behalf of the sixth defendant, affirmed that the sixth defendant does not have, nor has had, in its possession, custody or power, any other documents relating to any question in the proceeding. The plaintiff has not pointed to any document or other circumstance which should call into doubt the statement thus made by Mr Ogle in the affidavit of documents.

62 In my view, the submission made by Mr Burnside on behalf of the sixth defendant is correct. The circumstance that the sixth defendant has discovered travel records for particular periods of time, relevant to this proceeding, does not, in my view, sufficiently make it appear that the sixth defendant may have in its possession travel documents for the earlier period, relating to any question in the proceeding. The matters relied on by Mr Waller are insufficient for me to disregard the affirmation of Mr Ogle. Indeed, in argument, I was only taken - albeit, by example - to two instances in which the travel documents, currently discovered, have any possible connection with this case. The connection of those documents to the issue in this case, pointed to by the plaintiff, is in one instance limited and in the other instance questionable. They are insufficient to indicate a proper basis for the order sought by the plaintiff under Rule 29.08.

63 In its third affidavit of documents, the defendant discovered a series of telephone bills for the period from 25 June 2003 to 24 March 2004. The plaintiff seeks discovery by the sixth defendant of its telephone bills for the period November 2002 to June 2003.

64 The telephone records discovered by the sixth defendant, for the period from July 2003, contain details of outgoing mobile, landline and satellite telephone calls, and facsimile transmissions. It was submitted by the plaintiff that the telephone bills in relation to the period November 2002 to June 2003 are relevant and discoverable, because they may lead to a train of inquiry, or "throw light on" communications between various members or volunteers of the sixth defendant, at a time at which alleged wrongful acts occurred.

65 In response, Mr Burnside pointed out that the telephone records were discovered by the sixth defendant in response to that part of the plaintiff's summons which sought discovery of documents relating to communications between the sixth defendant and Greenpeace from September 2003 to May 2004. Those documents were relevant to an issue raised in the pleadings as to communications during that period between Greenpeace and the sixth defendant. Mr Burnside submitted that, otherwise, the telephone documents are not discoverable by the sixth defendant.

66 In my view, the proposition that the sixth defendant's telephone records may disclose a communication between the sixth defendant and a person alleged, by the statement of claim, to have committed a tort pleaded in the statement of claim, at the time of that tort, is speculative. Further, if production of the telephone records disclosed any such communication, that part of the records, on its own, would be of tenuous relevance to the primary issue in the proceeding, namely, whether the sixth defendant was acting in concert with such person at the time of the alleged tort. On the other hand, in order to ascertain whether it is able to establish that point, the plaintiff seeks discovery of the whole of the telephone records of the sixth defendant for the period November 2002 to June 2003. Self-evidently, a very large majority of those records would be entirely irrelevant to the proceeding. In the sixth defendant's third affidavit of documents, Mr Ogle has deposed that the sixth defendant is not, and has not been, in possession of any other relevant documents to the proceeding. In that context, the application by the plaintiff is, in my view, fishing, and there is no reason for me to disregard the affidavit of Mr Ogle to the effect that the sixth defendant has in its possession no further records of relevance to the proceeding.

67 Thus, I am not persuaded that I should make any further order, under Rule 29.08, for discovery by the sixth defendant of meeting papers, travel records or telephone records, for the period November 2002 to June 2003.

68 Finally, I note that the terms in which orders were sought by the plaintiff under Rule 29.08(2) are particularly broad. In each case, the plaintiff sought further discovery of nominated documents (meeting papers, travel records and telephone records) "of the kind" discovered in the third affidavit of documents of the sixth defendant for the period November 2002 to July 2003. Such an order would, in my view, be too wide and uncertain, and would be directed to the discovery of documents which would include documents not relevant to any question in the proceeding.[32] In my view, it would not be appropriate to make an order in those terms, even if the plaintiff had made out a basis for relief under Rule 29.08. Further, and more significantly, the difficulty in drafting the relief sought by the plaintiff highlights a problem with the plaintiff's application. The sixth defendant, through Mr Ogle, has deposed that it has made complete discovery of relevant documents. The plaintiff is unable, save in particularly wide terms, to identify relevant documents or classes of documents, of which, it asserts, the sixth defendant has failed to make discovery. The application, thus propounded, has the hallmarks of a fishing expedition for documents which, I consider, are well removed from the heart of the issues in dispute in this case.

69 Thus for the reasons which I have set out at length in this judgment, I have reached the conclusions:

(1) That the first plaintiff is not entitled to an order that the sixth defendant produce to it, for its inspection, unredacted copies of the discovered documents, of which the sixth defendant has produced redacted copies to the plaintiff for its inspection.

(2) The first plaintiff is not entitled to the further discovery sought by it of:

(b) meeting papers of the sixth defendant for the period November 2002 to June 2003;

(c) travel records of the sixth defendant for the period November 2002 to June 2003;

(d) telephone records of the sixth defendant for the period November 2002 to June 2003.

70 For those reasons, the appeal by the first plaintiff from the order of Master Evans made 3 September 2008 should be dismissed.

[1] [2006] SASC 325 (Debelle J).

[2] (Supreme Court of New South Wales, unreported, 10 February 2007; BC97001041).

[3] [2004] FCA 353; (2004) ATPR 41-996.

[4] [2005] FCA 649; (2005) 223 ALR 284.

[5] [2005] FCA 1335.

[6] [2006] QSC 342; [2007] 2 Qd R 40.

[7] [1995] 1 WLR 172.

[8] Cf Candacal Pty Ltd & Ors v Industry Research Board [2005] FCA 649; (2005) 223 ALR 284, 295 [56] (Lee J).

[9] See for example Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 677 (Barwick CJ); AWB v Cole (No 5) (2006) FCR 30, 45 (Young J).

[10] Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353, [12] (Selway J); Candacal Pty Ltd v Industry Research and Development Board [2005] FCA 649; (2005) 223 ALR 284, 295 [54] (Lee J).

[11] Harris Scarfe Limited (receivers and managers appointed) (in liq) v Ernst and Young & Ors [2006] SASC 325; (2006) 204 FLR 165, 171 [22] (Debelle J); Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2007] VSC 450, [11] (Hollingworth J).

[12] Harris Scarfe Limited (receivers and managers appointed) (in liq) v Ernst and Young & Ors, above, [24] (Debelle J); Candacal Pty Ltd v Industry Research and Development Board (above), [53] (Lee J); Menkens v Wintour [2006] QSC 342; [2007] 2 Qd R 40, 42 [12] (McKenzie J).

[13] Harris Scarfe Limited (receivers and managers appointed) (in liq) v Ernst and Young & Ors (above), [26]-[28]; Candacal Pty Ltd v Industry Research and Development Board (above), 295 [55].

[15] See also Menkens v Wintour (above), 43 [13]; Candacal Pty Ltd v Industry Research and Development Board (above), 295 [56] (Lee J).

[16] [1995] 1 WLR 172.

[17] 174 (Hoffman LJ), 176 (Leggatt LJ).

[18] Harris Scarfe Limited (receivers and managers appointed) (in liq) v Ernst and Young & Ors (above), 173 to 174 [26 to 28]; Rio Tinto Limited v Commissioner of Taxation [2005] FCA 1335, [24] (Sundberg J).

[19] Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2007] VSC 450 [19]; Rio Tinto Limited v Commissioner of Taxation [2005] FCA 1335, [25].

[20] [2002] FCA 1045.

[21] See also Index Group of Companies Pty Ltd v Nolan [2002] FCA 608, [6] (Kiefel J); United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116, [3] (Tamberlin J); Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 38 (Hayne JA).

[24] [2006] QSC 342; [2007] 2 Qd R 40, 42 [12]; see also Grey v Associated Book Publishers (Aust) Pty Ltd (above), [14] (Branson J).

[25] [1996] VicRp 54; [1996] 2 VR 34.

[26] Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 73 [61]; Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, 677 (Barwick CJ).

[27] Grant v Downs (above), 689; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332, 337 [11] (Batt JA).

[28] Grant v Downs (above) 689 (Stephen, Mason, Murphy JJ); AWB Limited v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, [45] (Young J).

[29] Esso Australia Resources Limited v Commissioner of Taxation (above), 70.

[30] Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 62 to 63 (Brett LJ); Hutchinson v Glover (1875) 1 QBD 138, 141 (Blackburn J).

[31] [1951] 2 All ER 431.

[32] Australian Dairy Corporation v Murray Goulburn Cooperative Co Limited [1990] VicRp 33; [1990] VR 355, 358 (Fullagar J), 380 (Marks J).