Schedule B documents - Mr Brown's notebook
91 As to para 4 of his application, Mr Joyce pressed for the production for inspection of Mr Brown's notebook. The document had been discovered by the Sunland parties but the copy supplied to Mr Joyce had been "redacted" for relevance and also on the basis of that part of client legal privilege known as advice privilege. On the hearing of the application I was furnished, for the purpose of determining the discovery application, with a copy of that notebook in that form and also with a copy of the original notebook (these became Exhibit 3 on the interlocutory discovery applications).
92 I have already referred to the judgment in the Fig Tree Case and to the vices which can attend masking out for relevance and confidentiality. It is to be remembered though that in that case the order in respect of discovery was for discovery to be given by categories of documents. In this case the order provided for general discovery but, as noted, it was limited by reference to the provisions of O 15 r 2. As further already noted, O 15 r 2(3) narrows the test for discovery.
93 Under the Uniform Civil Procedure Rules 1999 (Qld) the test for what is now termed "the duty of disclosure" in Queensland civil practice has also been narrowed, "directly relevant to an allegation in the pleadings" see UCPR 211(1)(b), with that duty of disclosure not applying to "a document in relation to which there is a valid claim to privilege from disclosure", UCPR 212(1)(a).
94 In Tarong Energy Corporation Limited v South Burnett Regional Council (formerly Nanango Shire Council) [2009] QCA 265 at [35] Fraser JA ( Muir JA and White J agreeing), stated that those rules were "compatible with the established practice under which documents may be disclosed in a form which conceals privileged parts of the documents", citing as to that practice the judgment of McPherson J in Curlex Manufacturing Pty Ltd v Carlingford [1987] 2 Qd R 335, a judgment which Fraser JA noted had been described by Hoffmann LJ in GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 at 176 as masterly and required reading on this subject. In the Tarong Energy Corporation Case, Fraser JA noted of Telstra Corporation v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 11 February 1997) and Menkens v Wintour [2007] 2 Qd R 40 (two cases to which I also referred in the Fig Tree Case), that these were "concerned with incomprehensibility resulting from the redaction of irrelevant material, rather than privileged material". His Honour also stated (at [36]), citing Curlex Manufacturing in support:
Where, as here, a party masks all of the privileged parts of a document, a mere consequential difficulty in comprehending the balance of the document does not of itself justify abrogation of the privilege.
There seems to have been implicit recognition in the Tarong Energy Corporation Case that what was said in Telstra Corporation v Australis Media Holdings and Menkens v Wintour in relation to the practice of redaction for irrelevance or confidentiality was applicable to practice under the UCPR and that this was so even though the decision as to direct relevance to an issue on the pleadings was consigned by those rules to the person subject to the duty of disclosure. Menkens v Wintour was, of course, a Queensland case which arose under the UCPR.
95 The point of this excursion into Queensland civil practice is that what was said in Telstra Corporation v Australis Media Holdings, though a case decided against the background of an order for discovery of documents by category, was regarded in the Tarong Energy Corporation Case as relevant to a duty of disclosure measured reference to a "directly relevant to an allegation in the pleadings test". It was just that in the Tarong Energy Corporation Case the redaction which was under challenge had been undertaken on the basis of privilege, not alleged irrelevance. Though in the present case the order provides for general discovery, the resultant obligation is measured by a similarly confined test - "in accordance with r 2". By analogy, what was said in Telstra Corporation v Australis Media Holdings of the risks attendant in that practice remains relevant. So, too, of course, does the distinction noted between redaction on the basis of irrelevance or confidentiality and redaction on the basis of privilege.
96 This conclusion differs from that reached by Besanko J in Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354. His Honour discerned a different outcome in relation to the permissibility of unilateral redaction for relevance depending on whether there was an order for general or limited discovery with the practice being permissible where the order was for general discovery and the affidavit verifying the list then having the usual, prima facie effect. As his Honour expressly acknowledged (at [26]) that conclusion was directly at odds with observations made by Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd[2004] ATPR 41-996 which observations had been referred to with approval in a general way in a number of later authorities.
97 What Selway J had to say in Australian Competition and Consumer commission v McMahon Services Pty Ltd at [12] - [13] was this:
12 It may be that there is a practice in England that parts of a document can be masked simply because those parts of the document are not thought to be relevant: see GE Capital Corporate Finance Group Ltd v Bankers Trust Co & Ors [1995] 1 WLR 172. I note that that case would seem to have been followed by Olsson J of the South Australian Supreme Court: see Peat Marwick Hungerford's v Executor Trustee & Ors (unreported decision delivered 25 October, 1995). However, in this Court the Rules and the practice would seem to be quite clear that what must be discovered and produced (save for any question of privilege) is the whole of the document if any part of it is discoverable. Indeed, the fact that part of the document is relevant may well mean that all of it is relevant if only to provide the context for that part of it which is directly relevant.
13 There remains a discretion not to order that the masked part of the documents be produced: see, in the somewhat different context of Order 15A, Sony Music at 89-92. There is no obvious reason in this case why the whole of the documents should not be discovered and produced. True it is that some parts of them seem to have very little evidentiary value and some parts of them make allegations against third parties which may well be quite unfair. However, all of the allegations seem to concern the first respondent and at least one of the allegations is directly related to the matters which are the subject of these proceedings. The third parties are protected by the inherent powers of the Court to prevent the publication or use of discovered material for purposes not connected with the litigation.
98 The view taken in Telstra Corporation v Australis Media Holdings, which I shared in the Fig Tree Case, was that, save in cases where a privilege is claimed, the whole document should be produced unless there were prior agreement to the contrary from the opposing party or some prior dispensation by the court. One reason given was that the obligation was to discover the document; another given was that of loss of comprehensibility arising from too assiduous a practice of masking out. I note that in Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 Sundberg J also regarded the practice of unilateral masking out for relevance as inappropriate.
99 The view expressed by Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd is one which, with respect, I share. It accords, for reasons which I have set out above, with what seems to be the view of the Queensland Court of Appeal in the Tarong Energy Corporation Caseand also of Mackenzie J in Menkens v Wintour as to the effect of the position under the UCPR in respect of a general duty of disclosure. An analogous position arises under the rules of this court where discovery is ordered to be given under O 15 r 2. A duty to discover documents within the classes set out in O 15 r 2(3) arises but any objection to production based on a claim of privilege is to be "sufficiently stated" in the list of documents filed and served pursuant to that duty.
100 One of the cases to which McPherson J refers in Curlex Manufacturing Pty Ltd v Carlingford is Carew v White (1842) 49 ER 542. In that case, as McPherson J (at 341) accurately describes it, Lord Langdale MR had "reluctantly ordered the production of diaries containing business entries material to the partnership litigation notwithstanding that they also contained entries concerning private and family matters which were not relevant to any issues". His Lordship made this order because the defendant having "mixed his private affairs with the partnership transactions, it is his duty to separate them, and if he cannot, he must necessarily suffer the inconvenience arising from his own act". To this order was added though "the usual order for sealing up not relating to the partnership transactions, and he may, if he can, avail himself of this qualification" (ER 542 at 544). Further, the objection to production in that case went only to relevance. It was not grounded in the assertion of a privilege.
101 I have, in any event and as invited, perused Mr Brown's notebook in its unredacted form. There are a number of entries in the notebook in which the word "waterfront" appears prior to the first of the unredacted entries. Those other entries appear to have been made before August 2007. I cannot tell whether or not the related entries concern the same development as that in which plot D17 is situated. There are certainly other entries which do not, albeit on the scrutiny of someone other than their author, appear to have anything to do with any waterfront land. This though is a case where Mr Brown has mixed a number of subjects in the one notebook. It may well be more than a possibility that the existing redaction for relevance is not only accurate but also errs on the side of caution but I cannot be sure of that. Further, the general run of entries assists in giving context to those conceded to be relevant. I have considered whether I should, as a matter of discretion, leave to be produced only the presently redacted version of the notebook, rather than, as would otherwise be required, the document itself. On balance, the considerations which I have just mentioned lead me to the view that, subject to such just claims as to privilege as may be applicable to particular entries, the whole of the notebook ought to be produced for inspection. I propose to order accordingly. The redaction which has occurred does not differentiate on its face the reason for that redaction. I am not therefore able to tell which parts of the redacted copy have been masked out for reasons of privilege. It is not therefore possible to give any more precision to the reservation in respect of the production obligation.