Subject to the importation of the requirement of reasonableness, an inspecting party who wishes to make copies must be provided with the facilities to do so in the office of the producing party

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1

Buttes Gas and Oil Co v Hammer (No 3) [1980] 3 All ER 475

Clay v Karlson [2000] WASC 132

Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450

Crombie v Unity Church in Australia Property Trust (WA) (1997) 17 WAR 291

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 104 ALR 621

Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404

Montarello v Berkman Finance Pty Ltd (1997) 15 ACLC 556

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

1 OWEN J: I agree with what Templeman J has said and just wish to add a couple of brief comments. I am compelled to that conclusion by what I see as the clear wording of the Rules, but without a great deal of enthusiasm for the result. The clear wording of O 26 r 8(5) cannot be ignored: It says that the party making the inspection shall be entitled to make copies. Those words have to be given their ordinary meaning.

2 Assuming, as we have done, for the purposes of this application that O 26 8A applies to inspection under O 26 r 8(2) and (5) the copying aspect of the inspection process is governed by O 26 r 8A(2). It seems to me, however, that O 26 r 8A(2) must import an element of reasonableness in the sense which Templeman J has outlined. It clearly imports an element of reasonableness in the time with which inspection and copying facilities are to be provided. The question of reasonableness may go further. It is for that reason that I expressly refrain from deciding whether or not in circumstances that do not arise in this case there could be an obligation, for example, on a solicitor to hire or bring on to the premises a copying machine.

3 Reference has been made to the practice which has developed of inspecting parties providing their own copying facilities or allowing the producing party to make and provide the copies. As Templeman J has said, that is a practice which may not accord with the strict wording of the Rules but it is a practice which, to my mind, is a commonsense solution.

4 Finally, I would like to associate myself expressly with the concluding comments of the learned Master in his reasons for decision. This is a problem which could so easily have been avoided and should never have arisen. I am of the view that leave to appeal should be granted but the appeal should be dismissed.

5 TEMPLEMAN J: This application for leave to appeal from a decision of a Master raises the question of construction of O 26 r 8A, that rule being concerned with the procedure on discovery under the Rules of the Supreme Court.

6 As emerged in the course of submissions, the only real point in the application is whether a party producing documents for inspection under the Rules is required to make available a photocopying machine for the purpose of enabling the inspecting party to make copies of any of the relevant documents.

7 The facts set out by the learned Master are very simple. The inspecting party's solicitor attended at the offices of the producing party's solicitor to inspect documents which had been referred to in a statement of claim. Pausing there, the right which was being exercised in that situation was that arising under O 26 r 8(2) which entitles a party to a cause or matter at any time to serve a notice on any other party in whose pleadings reference is made to any document, requiring him to produce that document for inspection by the party giving the notice.

8 It appears to have been assumed by the learned Master (and, indeed, we have proceeded on the same basis) that the production of such documents falls within O 26 r 8A. In other words, that that procedure amounts to the giving of discovery. However, there may well be an argument to the contrary: that O 26 r 8A should be confined to procedure on discovery given in the ordinary way by list.

9 Setting that on one side and returning to the facts as set out by the learned Master: the inspecting solicitor was provided with a bundle of documents which were said to be the documents he had come to inspect. There was then an issue raised as to whether the documents so produced had been indexed in a proper manner. That is not an issue with which we are concerned today.

10 The second issue which was raised between the solicitors arose from the fact that the inspecting solicitor was refused access to the producing solicitor's photocopier. The inspecting solicitor said he required access so that he could make copies of the documents then and there. That was refused.

11 The inspecting solicitor was then given three options:

3. he could indicate which documents he wanted copied, so that the producing solicitor could arrange for copies to be made and provided to the inspecting solicitor in due course.

12 The inspecting solicitor said that none of those alternatives was acceptable; and hence the deadlock which gave rise to the application to the Master.

13 The Master in his reasons held that the rule required the producing solicitor to make a photocopying facility available and that he was therefore in breach of the rule in failing to do so.

14 The rule has to be put in context. The starting point, I think, is O 26 r 8(5) which deals with inspection of documents in a list. The rule provides that the party making the inspection shall be entitled to make copies of any documents produced for inspection under that rule.

15 That rule has been in the books for about a hundred years. Obviously, it came into existence at a time when there were no photocopying machines. Copies had to be made either by hand or possibly by typewriter.

16 The rule in issue now, O 26 r 8A, was introduced into the Supreme Court Rules in 1994. It provides as follows, subrule (1):

"(1) Documents delivered or produced under these Rules are -

(i) in bundles, files, folders or receptacles; and either -

(ii) grouped according to topic, class, category, allegation in issue or otherwise; or

making the documents readily accessible to and capable of convenient inspection by the party to whom they are delivered or produced; and

(b) to be so identified or indexed by number, description or otherwise as to enable particular documents to be readily retrieved on later occasions.

(2) The party producing the documents must provide facilities for inspection and copying of the documents and make available a person able to

(b) assist in locating and identifying particular documents or classes of documents.

(3) An existing arrangement of documents already in use by a party

(a) is not to be disturbed more than is necessary to achieve substantial compliance with paragraph 1(a), and

(b) if the party so requires is not to be disturbed at all."

17 To deal with one relatively small issue: in my view it is clear that the arrangement referred to in subrule (2), in the context of the producing party making available a person able to explain the arrangement, is a reference to the arrangement of documents not, I think, with respect to the Master, the photocopying arrangements. It was the Master's view that the latter interpretation was appropriate.

18 However, nothing turns on that because the central point concerns the words earlier in the rule that the party producing the documents must provide facilities for inspection and copying.

19 It seems to me that those words are quite clear, particularly given that they appear following O 26 r 8(5) which entitles a party making an inspection to make copies of the documents produced for inspection under the rule.

20 It has been held by Parker J in an earlier decision that an inspecting party is entitled to bring his or her own photocopier to the offices of the producing party in order to make copies. This I think reinforces the view that the inspecting party is entitled to make copies personally, at the place where the documents are produced.

21 It seems to me, therefore that in providing that the producing party must provide facilities for inspection and copying, the rule imposes an obligation on the producing party to make available a photocopying machine in order to enable the inspecting party to make the copies it wishes.

22 Having said that, it does not in my view follow that the inspecting party who requires to make copies is entitled then and there to demand immediate access to the producing party or solicitor's photocopying facilities. It seems to me that that would be a wholly unreasonable construction.

23 Although the rule is applicable both to litigants in person and to solicitors, in a very substantial majority of cases, inspection will be carried out by, or will at least involve, solicitors who are professional people. One would therefore expect there to be a degree of reasonableness in the construction of the rule in order to facilitate the reasonable requirements of both parties.

24 For example, suppose there was a requirement for a large volume of documents to be copied which would take some considerable time and would require the use of the producing party's photocopier perhaps in a room where other matters were being dealt with and confidential or privileged documents were kept. In my view, the persons concerned would be required to make reasonable arrangements so that the producing party should have an opportunity to enable the inspecting party to make copies without compromising any confidence or privilege.

25 As the learned Master said in his reasons, if necessary it would be open to the producing party to have every move of the inspecting party watched by an appropriate person to ensure that there was no breach of privilege or confidentiality.

26 Against that construction, it is said that the practice of permitting the inspecting party to make the photocopies might well lead to disturbance of the existing arrangement of documents which, if the producing party so requires, is not to be disturbed at all. That is what O 26 r 8A(3) provides.

27 However, that seems to me, with respect, to be a misconstruction of the subrule. It refers to the arrangement not being disturbed, not to the documents not being disturbed. In other words, if the documents are arranged in a particular sequence and have been so arranged by a producing party then it is not open to the inspecting party to disturb that arrangement.

28 It seems to me therefore that the effect of that sub-rule is to require any documents which are removed for the purpose of photocopying to be replaced in precisely the same position from which they were removed.

29 It is then submitted that if the inspecting party is to make the photocopies, there is a greater potential for disturbance of the arrangement than if the copies were made subsequently by somebody on behalf of the producing party.

30 I do not accept that submission. All that is required is for sufficient care to be taken in carrying out the photocopying exercise.

31 I think the more substantial ground for objecting to this construction is that it has not been the practice in this jurisdiction for inspecting parties to make their own photocopies. Despite the fact that O 26 r 8A has been in force for some six years it is still apparently the practice for inspecting parties to request copies of documents which are then provided, in due course, by the producing party.

32 It is submitted that that practice involves a wholly desirable degree of flexibility which would be lost if the construction which I consider to be the correct construction were to be upheld. However, it seems to me that that practice is quite inconsistent with a rule which requires, as it does, that the producing party must provide facilities for copying by the person who attends to inspect the relevant documents.

33 Clearly, if as a matter of convenience, the persons involved are content that the producing party shall make the relevant copies then so be it. But it seems to me, subject to the importation of the requirement of reasonableness, that an inspecting party who wishes to make copies must be provided with the facilities in the offices of the producing party to enable him or her to do so.

34 It is then said, that in a substantial case involving large numbers of documents that obligation may well require the producing party to hire a photocopying machine specifically for the purpose of enabling an inspecting party to make copies. This, it is said, could be an expensive exercise and could never have been contemplated by those who framed the rule.

35 I think three things need to be said about that. First: that problem has not arisen in this case. Nor does it appear to have been a problem in the last six years in which the rule has been in force, when, as is well known, substantial litigation has been conducted in this jurisdiction involving large volumes of documents.

36 Although clearly there is a potential for that problem to arise the fact that it has not arisen previously leads me to the view that it is not a matter about which this Court needs to express a view today. Secondly, I think that O 26 r 15 provides the Court with a very broad discretion to authorise departures from the strict requirements of O 26 r 8A in an appropriate case.

37 It seems to me therefore that if a situation arose in which, for example, a sole practitioner who was foolhardy enough to undertake substantial litigation involving large numbers of documents without proper facilities was unable to comply with O 26 r 8A then an application could be made to the Court for an appropriate solution.

38 Thirdly: if it was necessary for a practitioner to hire a photocopier then it may well be that the cost could be recovered from an unsuccessful party by way of a special order. However, I express no firm view about that.

39 Because this application raises matters which may be of some importance to the profession, I think it would be appropriate to grant leave to appeal. But since in my view the construction contended for by the applicant is incorrect, the appeal should be dismissed.