Knight v Kluver[2001] QCA 254

DAVIES JA:  I will ask Justice Williams to deliver his reasons first.

WILLIAMS JA:  This is an application for leave to appeal against an order of a District Court Judge requiring the present applicant, who was not a party to the principal proceeding, to disclose documents pursuant to Rule 242 of the Uniform Civil Procedure Rules.

At the outset of the hearing before this Court, counsel for each party agreed that if the Court considered that leave should be granted, it should deal with the substantive appeal. 

The respondent commenced an action in the District Court by a claim which was filed on 23 January this year.  A statement of claim has also been filed, but it has not been served on the defendant, who is not represented before this Court.  The statement of claim discloses that the action is one for medical negligence.  The respondent underwent an operation on 12 May 1998 at the hospital which is represented in these proceedings by the present applicant.

The defendant in the action was the anaesthetist.  In paragraph six of the statement of claim detailed allegations of negligence are made against the defendant.  Before that statement of claim was served on the defendant, a notice pursuant to Rule 242 was served on the applicant on 14 March this year.  The applicant refused to comply with that notice, contending that the requirements of Rule 242 had not been satisfied.  In particular, it asserted that because no statement of claim had been served and no entry of appearance and defence filed, it was not possible to identify any allegation which was "in issue in the pleadings". 

Further, the applicant took the point that the respondent was not able to satisfy the terms of paragraph (2) of the rule, which required a certification that there was no other reasonably simple and inexpensive way of proving the matter sought to be proved by the document, the subject of the notice.

The matter then came before a Chamber Judge in the District Court; for reasons which he gave, he ordered that the applicant make the necessary disclosure. As is already evident from what I have said, Rule 242 requires the document, which is to be produced pursuant to the order, to be "directly relevant to an allegation in issue in the pleadings".

In my view, that can only be established where a statement of claim and defence have been delivered and there is an issue raised by those pleadings to which the document sought to be obtained is relevant.

The simplest and the quickest way of identifying what is in issue and obtaining documents relevant to that issue, is for the pleadings to close and for the parties to obtain discovery in the ordinary way. 

That that is so in this case is made clearer by the fact that the defendant in the action was the anaesthetist at the operation and what the plaintiff is seeking to obtain from the present applicant are copies of the anaesthetist's documents which are presently in the possession of the applicant.

If, as appears to be the case, the defendant is claiming that the documents in question are her documents, then they would be discoverable in the ordinary way.  That to my mind also establishes that the requirements of paragraph (2) of the rule cannot be satisfied in the circumstances of this case.

It follows that the application brought by the plaintiff in the original proceeding was premature and that the applicant ought not be obliged to comply with an order made under Rule 242 at this stage of the proceedings.  It follows that leave to appeal should be granted, the appeal should be allowed, and the order of the District Court Judge set aside. 

There should be an order that the application to the District Court Judge be dismissed.  The respondent should pay the costs of and incidental to the appeal and of the application before the District Court Judge, to be assessed.

DAVIES JA:  I agree.

THOMAS JA:  If the additional information in the possession of the hospital is necessary for the purpose of preparing a proper statement of claim, it may be that pre-pleading discovery should be sought against the defendant under

Rule 214, subrule 2.

Rule 242 seems designed to avoid premature discovery from non-parties, that is to say before the issues are formalised between the actual parties.  It is also no doubt designed to deter fishing raids on the documents of persons who are not parties to the litigation.

This rule is the means of avoiding considerable inconvenience to non-parties and the wastage of costs. I think that the order here was premature.  I agree with what Justice Williams has said and with the orders that he proposes.

DAVIES JA:  The orders are as indicated by Justice Williams.

MR COUPER:  Your Honours, might I be heard very briefly as to the question of costs?  The draft notice of appeal foreshadowed the question of costs on the indemnity basis.  To make my submissions very briefly, this was an application - a notice which should never have been issued - an application which ought to have been doomed to fail from the outset.  It was patently outside the scope of the rule.  It's the sort of exceptional case where costs on an indemnity basis are warranted.

DAVIES JA:  Well, we're not going to give indemnity costs, Mr Couper. The orders are as I've indicated.  Call the next case.