Stephan v NRMA Insurance Limited
[2001] QDC 2
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- Unreported Judgment
- Stephan v NRMA Insurance Limited[2001] QDC 2
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Stephan v NRMA Insurance Limited[2001] QDC 2
Stephan v NRMA Insurance Limited[2001] QDC 2
DISTRICT COURT OF QUEENSLAND
CITATION: | Stephan v. NRMA Insurance Limited [2001] QDC 002 |
PARTIES: | JOSEPH STEPHAN (Plaintiff) v. NRMA INSURANCE LIMITED (Defendant) |
FILE NO/S: | Plaint 1875 of 1999 |
DIVISION: | |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 31 January 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 December 2000 |
JUDGE: | McGill DCJ |
ORDER: | Order for the production of document 39 refused. Order that the defendant be relieved, until after the close of the plaintiff’s case, of the duty of disclosure of documents number 2, 3, 4, 33, 40, 41, 48, 58, 59 and 93 in the “NRMA Claim File” part of Part 1 of Schedule 1 of the defendant’s list of documents dated 1 October 1999. Plaintiff’s application otherwise dismissed. Order the costs of each party of the application be costs in the cause. Order that the affidavit of Anthony Charles Cotter sworn 20 December 2000, together with the exhibits thereto be placed on the file in a sealed envelope which is not to be opened except by order of a judge or, if an appeal is instituted, by a deputy registrar of the Court of Appeal. |
CATCHWORDS: | PRACTICE – disclosure – relief from duty of – documents suppressed to assist cross-examination and avoid risk of tailoring evidence – Uniform Civil Procedure Rules rr 223, 224. Church of Scientology of California v. Department of Health and Social Security [1979] 1 WLR 723 - considered Riddick v. Thames Board Mills Ltd [1977] QB 881 – cited Magellan Petroleum Australia Ltd v. Sagasco Amadeus Pty Ltd [1994] 2 Qd.R. 57 – cited Kimberly Mineral Holdings Ltd v. McEwan [1980] 1 NSWLR 210 - cited Markus v. Provincial Insurance Co Ltd (Number 17241/82, Supreme Court New South Wales, 11.5.83, unreported) – followed Broadwater Taxation and Investment Services Pty Ltd v. Hendriks (3618/93, Supreme Court New South Wales, 9.9.93, unreported) – followed Wilson v. Camden Plumbing Pty Ltd (19505/93, Supreme Court New South Wales, 1.11.95, unreported) - cited Marsden v. Amalgamated Television Services Pty Ltd [1999] New South Wales Supreme Court, 428 – considered Kahn v. Armaguard Ltd [1994] 1 WLR 1204 - considered Kitching v. Millaquin Sugar Co Pty Ltd [1992] 1 Qd.R. 194 – applied Martin v. Kennedy [1992] 2 Qd.R. 109 – applied King v. Nolan [1992] 2 Qd.R. 498 - applied Mercantile Mutual Custodians Pty Ltd v. Village/Nine Network Restaurants and Bars Pty Ltd [1999] QCA 276 – considered Mobil Oil Australia Ltd v. Guina Developments Pty Ltd [1996] 2 VR 34 – cited Robson v. Reb Engineering Pty Ltd [1997] 2 Qd.R. 102 |
COUNSEL: | S P Barry for the plaintiff K Buxton for the defendant |
SOLICITORS: | Bradley Munt & Co for the plaintiff McCullough Robertson for the defendant |
- [1]This is an application by the plaintiff for an order that the defendant deliver copies of particular documents in the defendant’s list of documents, copies of which the defendant has refused to provide. Rule 223(1) relevantly provides that the court may order a party to a proceeding to disclose to another party a document by delivering to the other party a copy of the document. The defendant resisted the application on the ground that disclosure of the relevant documents to the plaintiff prior to the trial cannot assist the plaintiff to prove his case, and, if his claim is not genuine, their production may permit him to manufacture evidence and thus facilitate an abuse of process.
Nature of the Plaintiff’s Claim
- [2]By a plaint filed on 14 May 1999, the plaintiff claimed an amount within the jurisdiction of this court as money payable under a contract of insurance with the defendant. The plaint alleges that the plaintiff was in possession of a motor vehicle under a hire purchase agreement dated 7 June 1996 with Esanda Finance Corporation Ltd, and that the defendant had issued a policy and certificate of insurance dated 25 May 1998 agreeing to insure the vehicle at an agreed value in the period from 23 May 1998 to 23 May 1999. Among other things, the vehicle was insured against being stolen and found damaged. It is alleged that on or about 24 September 1998 the vehicle was stolen, and between that date and 29 September 1998 it was totally destroyed by fire. The plaintiff made a claim on 25 September 1999 but the defendant has refused to pay the agreed value to the plaintiff or otherwise perform its obligations under the policy.
- [3]By an Entry of Appearance and Defence filed 15 June 1999 the defendant admitted the making of the policy but denied the vehicle was stolen and alleged that:
“(a) The loss or damage alleged to have been suffered by the plaintiff was intentionally caused by the plaintiff or by a person acting with the plaintiff’s express or implied consent;
- (b)The plaintiff has not been truthful and frank in statements made by him in connection with the claim he has purported to make under the contract, in that he failed to advise the defendant that the loss or damage alleged to have been suffered by him was caused by him or by a person acting with his express or implied consent;
- (c)In the premises, the plaintiff was not entitled to make a claim under the contract in the sum claimed or at all;
- (d)It is not obliged to indemnify the plaintiff in respect of the alleged loss or damage, or at all.
- (e)It was entitled to cancel the contract pursuant to s. 60 of the Insurance Contracts Act 1984 (Cth).”
In addition it is alleged that the plaintiff is in breach of his obligation of utmost good faith in respect of these matters, so that the defendant is entitled to refuse to indemnify the plaintiff and to cancel the contract. In essence therefore the defendant alleges that the vehicle was not stolen but was deliberately destroyed by the plaintiff or some other person acting with his express or implied consent. If this is so, it is not liable under the policy.
- [4]Shortly after the Entry of Appearance and Defence was filed the Uniform Civil Procedure Rules came into operation. The defendant became subject to the duty of disclosure in r. 211. In accordance with r. 214(1), the defendant by its solicitors delivered to the solicitors for the plaintiff a list of documents to which the duty related dated 1 October 1999. Such a document is no longer filed in the court, but a copy was provided to me for the purposes of the application. Schedule 1 of the list includes the pleadings, notices requiring discovery on oath apparently delivered prior to the commencement of the Uniform Civil Procedure Rules, the defendant’s claim file and the defendant’s solicitor’s correspondence. The defendant’s claim file includes the following documents:
- (2)NRMA Protected Information Report – Linda Bunting NRMA – 14.10.1998
- (3)Informant information Action Sheet – Andrew (NRMA) – 14.10.1998
- (4)NRMA Protected Information Sheet – NRMA – 14.10.1998
Investigation Referral Form – David (NRMA) 25.9.1998
- (33)Letter NRMA to Job Investigations – Meredith Dundas – 22.10.1998
- (39)NRMA Investigation Running Sheet – Tony Duggan – 26.10.1998 – 12.11.98
- (40)Investigation Log – Gold Coast Trading Post – Tony Duggan – 12.11.98
- (41)Investigation Log – Queensland Trading Post – Tony Duggan – 12.11.98
- (48)Investigation Log – Mercedes Benz – Tony Duggan – 10.11.98
- (58)Investigation Log – The Benz Shop – Tony Duggan – 4.11.1998
- (59)Investigation Log – Oasis Prestige Cars – Tony Duggan – 4.11.1998
- (93)Letter – Job Investigations Pty Ltd to NRMA – Brian Williams – 12.11.1999.
These are the documents which are the subject of the application.
- [5]The list of documents, when provided, invited the plaintiff to request copies of the documents, or to request inspection of the originals, in accordance with the rules. With the list however was sent a letter declining to produce the documents listed above on the basis of the court’s general discretion to prevent an abuse of process. On 21 February 2000, the solicitor for the plaintiff wrote requiring that they be provided with copies of the documents in question, or seeking particulars of the grounds on which there was an entitlement to withhold them. The reply of the solicitors for the defendant referred to a number of authorities which I shall consider below, and stated:
“The documents which we have declined to produce would if known in advance by your client, enable him to tailor, or endeavour to tailor his evidence to meet the circumstances. This would deprive our client of a legitimate forensic advantage. We repeat this claim for each document which has been withheld.”
The next relevant step was the filing of the application on behalf of the plaintiff on 30 November 2000. A copy of one of the documents referred to in the application, No. 30, was provided after it was filed; the rest remain in issue.
Disclosure Under Uniform Civil Procedure Rules
- [6]The obligation to disclose documents in connection with the proceeding in the court is now governed by Part 1 of Chapter 7 of the Uniform Civil Procedure Rules. By r. 211(1) a party to a relevant proceeding[1] has a duty to disclose to each other party each document in the possession or under the control of that party and directly relevant to an allegation in issue in the pleadings. By r. 212, the duty does not apply to a document in respect of which there is a valid claim of privilege from disclosure, which is relevant only to credit, or which is an additional copy of no significance of a document already disclosed. It was not suggested that any of these applied to the documents in question. The duty of disclosure is to be performed under r. 214(1) by delivering a list of documents (which has been done) and by:
“(b) at a party’s request, delivering to the party copies of the documents mentioned in the list of documents …”
Sub-rule (2) provides that the time for delivery is, relevantly, within 28 days after the close of pleadings, or if the party is asked in writing by another party to deliver a copy of the document, within 28 days after the request.
- [7]The obligation to deliver copies of the documents mentioned in the list is subject to rr. 216 and 223. Rule 216 provides an alternative of producing the documents for inspection by the other party; this provision was not relied on by the defendant, which is also unwilling to produce the documents for inspection on behalf of the plaintiff. Rule 223 provides as follows:
“(1)The court may order a party to a proceeding to disclose to another party a document or class of documents by –
- (a)delivering to the other party in accordance with this part a copy of the document, or of each document in the class; or
- (b)producing for the inspection of the other party in accordance with this party the document, or each document in the class.
- (2)The court may order a party to a proceeding (the “first party”) to file and serve on another party an affidavit stating –
- (a)that a specified document or class of documents does not exist or has never existed; or
- (b)the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the first party.
- (3)The court may order that delivery, production or inspection of a document or class of documents for disclosure –
- (a)be provided; or
- (b)not be provided; or
- (c)be deferred.
- (4)An order mentioned in subrule (1) or (2) may be made only if –
- (a)there are special circumstances and the interests of justice require it; or
- (b)it appears there is an objective likelihood –
- (i)the duty to disclose has not been complied with; or
- (ii)a specified document or class of documents exists or existed and has passed out of the possession or control of a party.
- (5)If, on an application for an order under this rule, objection is made to the disclosure of a document (whether on the ground of privilege or another ground), the court may inspect the document to decide the objection.”
- [8]Apart from the discretion in r. 223(3) to order that delivery, production or inspection of a document for disclosure be not provided, there is a power to relieve a party from the duty of disclosure in r. 224. This provides as follows:
“(1)The court may order a party be relieved, or relieved to a specified extent, of the duty of disclosure.
- (2)Without limiting subrule (1), the court may, in deciding whether to make the order, have regard to the following –
- (a)the likely time, cost and inconvenience involved in disclosing the documents or classes of documents compared with the amount involved in the proceeding;
- (b)the relative importance of the question to which the documents or classes of documents relate;
- (c)the probable effect on the outcome of the proceeding of disclosing or not disclosing the documents or classes of documents;
- (d)other relevant considerations.
Do The Uniform Civil Procedure Rules Apply?
- [9]On the face of it none of these rules apply to this action, because it was not started by a claim, nor has there been any order or direction that Part 1 of Chapter 7 applies: see r. 209. However, at the time when the rules were commenced, a notice requiring discovery on oath had been delivered by the plaintiff’s solicitors to the defendant’s solicitors, and an affidavit of documents in accordance with the District Court Rules 1967 had not been filed. Rule 182(2) of those rules provided that where a party was served with a notice requiring discovery on oath that party shall within 14 days make an affidavit in accordance with the requirements of the notice unless the court or a judge otherwise orders. Accordingly, as at the commencement of the Uniform Civil Procedure Rules the defendant was under an obligation to make discovery of documents in accordance with the District Court Rules 1967.
- [10]
“1. On the commencement of the Uniform Civil Procedure Rules those rules apply to the next step or application in a proceeding pending in the Supreme Court, District Court or a Magistrates Court that can reasonably be taken in compliance with those rules.
- If a difficulty arises in the application of subsection (1) to a particular proceeding in a court, the court may, on application by a party or on its own initiative, make an order it considers appropriate to resolve the difficulty.”
In this case the next step required of the defendant in the District Court action as at 1 July 1999 was the filing and service of an affidavit of documents. Accordingly, in my opinion, the effect of s. 135(1) is that the Uniform Civil Procedure Rules apply to the obligation to make discovery of documents, so that there came to be an obligation to make disclosure of documents as required by Part 1 of Chapter 7. In my opinion, the effect of s. 135(1) is that the obligation to make disclosure, and the other consequential provisions in Chapter 7, apply to this action. Neither party has asserted that the Uniform Civil Procedure Rules do not apply to this application or the obligations on the defendant to make disclosure, and in my opinion they do.
Identification of the Discretion
- [11]Under the Uniform Civil Procedure Rules the duty of disclosure where it applies is fulfilled by providing a list of the documents and providing copies on request, or by providing for inspection. That, in my opinion, is the effect of r. 214. Where an application for an order for delivery of copies made under r. 223, the court has a discretion under subrule (3) to order the delivery not be provided, and the court also has a discretion to relieve a party of the duty of disclosure under r. 224. Presumably the difference is that an order under the later rule would mean that r. 225 would not apply to that document. It would not, in my opinion, be a sensible construction of the rules to expose a party to the penalties provided under r. 225, which includes the risk of being dealt with for contempt or having judgment entered against that party, if the court had expressly relieved that party of the duty of disclosure in respect of that document. Indeed, I think r. 225 should not be interpreted as applying to a document which was not required to be disclosed, for example, a document which was relevant only to credit: r. 212(1)(b). In my opinion, r. 225 only applies to a document which a party is required to disclose under Part 1 of Chapter 7, either because the duty of disclosure applies to it, or because an order has been made under r. 223 that that document, or a class of documents which includes that document, be disclosed.
- [12]The effect of the rules in my opinion is that any document which falls within r. 211(1) and is not excluded by r. 212 has to be disclosed by providing copies on request or by allowing inspection of the documents, unless the court exercises its discretion under r. 223(3)(b) or r. 224. The plaintiff in the present case is therefore entitled to the order sought in the application unless the defendant persuades me to exercise the discretion not to order delivery of copies, or to relieve the defendant of the duty of disclosure.
Prevention Of Abuse Of Process
- [13]The question then is whether the particular circumstances of this case justify an exercise of discretion favourable to the defendant. The defendant relies on a principle derived from Church of Scientology of California v. Department of Health and Social Security [1979] 1 WLR 723. In that case in libel actions an order was made that the defendants be excused from giving inspection of certain documents which had been disclosed in an affidavit of documents other than to counsel for the plaintiffs, in the case of some documents, and other than to medical experts in the case of other documents. That case was decided under English rules which were said to contain nothing which expressed or implied a power in the court to deny production or inspection to the other party: p.731. Nevertheless it was held that the court had inherent jurisdiction to prevent the abuse of its own process and that that jurisdiction gave it the power which had been exercised restricting discovery: p.734-5, p.743, p.746.
- [14]In that case the concern was that information obtained by inspecting the documents would be used, not to assist the plaintiff’s conduct of that particular litigation, but to identify other individuals who may be the subject of harassment by the plaintiff, for the purpose of intimidating the critics of the plaintiff. For present purposes there are three things to note about that decision. The first is that it was an order which restricted rather than prevented disclosure of relevant documents. The second is that it was directed to guarding against something which was well recognised as an abuse of discovery, namely the use of the information derived for some collateral purpose: Riddick v. Thames Board Mills Ltd [1977] QB 881. It is not suggested in the present case that any use made by the plaintiff of information contained in the documents in question would be collateral, rather it is suggested that it could lead to an abuse of the courts process in a different way, by tailoring or manufacturing evidence so as to prevent justice from being done. The third point is that all members of the court confirmed the importance in the ordinary case of the availability in the course of litigation of relevant documents in the possession of other parties to the proceeding.
- [15]Templeman LJ said at p.746:
“The first principle is that the court shall not order discovery which is not necessary for the fair disposal of the action. It follows that the court has power to impose restrictions which ensure that the ambit of discovery is not wider than is necessary to dispose fairly of the action. The second principle is that the court may act to prevent any possibility of conduct which might constitute contempt of court. The third principle is that the court may act to prevent what may be an abuse of the process of the court. Of course a strong case must be made out for the court to impose restrictions and the court will endeavour to ensure that the litigants are not prejudiced by the restrictions in the reasonable prosecution of their claim, but in the unusual circumstances of this case I am satisfied that the court ought to intervene and that there is jurisdiction for the court to do so. … But if there is a danger that inspection and copying in the manner desired by the litigant may lead to misuse of information, the court in the exercise of its power to prevent a possible contempt of court or in the exercise of its power to prevent an abuse of process and in the exercise of its power to confine discovery to the ambit which alone is necessary for the disposal of the action may dictate the manner in which inspection is carried out, whether by an individual litigant or by a corporate litigant and may regulate the taking and safeguarding of copies, and may impose limitations on the circulation of copies and information.”
- [16]This passage was cited with apparent approval by White J in Magellan Petroleum Australia Ltd v. Sagasco Amadeus Pty Ltd [1994] 2 Qd.R. 57 at 41. In that case Her Honour made an order for restricted discovery of certain commercially sensitive documents so that they were to be shown only to junior and senior counsel and three named solicitors, and to a named official of the plaintiff, but that they not be disclosed to anyone else, that the information contained in them only be used for purposes of the action, that only limited copies be made, and that all of the copies be returned to the solicitors for the defendant at the conclusion of any appeal period after judgment in the action. Again, in that case the concern was that the information obtained as a result of disclosure might be used for some collateral purpose.
- [17]The English decision was also followed by the New South Wales Court of Appeal in Kimberly Mineral Holdings Ltd v. McEwan [1980] 1 NSWLR 210. This was also a case where there was concern about the use of information in discovered documents for some collateral purpose, and production was to be allowed to the defendant who was an individual and his solicitor only on their undertaking not to use them for any other purpose and not to disclose the contents to the press or publish them in any way. There was some discussion in the reasons for judgment about capacity of the court under the New South Wales Supreme Court rules to refuse to order production, and hence the jurisdiction to make an order such as the one sought. Moffat P noted that there may be cases where, because of the large volume of documents potentially required to be searched, a court might vary the usual procedures about making discovery. As a result of cases like these, it has been said that it is now commonplace in the courts for material to be made available on discovery only to legal advisers of the parties and nominated experts, where otherwise documents of commercial significance would be disclosed to trade rivals: Mobil Oil Australia Ltd v. Guinea Developments Pty Ltd [1996] 2 VR 34 at 40.
- [18]One matter that particularly concerned the Court of Appeal in the Church of Scientology case, the source of any jurisdiction to restrict production, is not a difficulty here; under the rules to which I have referred there is an express power to restrict production. The proposition that ordinarily documents within the scope of the duty to disclose should be produced is obvious, and in so far as it dealt with a mechanism for restricting production so as to avoid a particular risk of misuse, the circumstances here are different. It shows that in an appropriate case production will be restricted, but a strong case is necessary to justify a restriction.
Refusal of Production To Prevent Tailoring Evidence
- [19]There are, however, cases where production has been refused in circumstances similar to the present. In Markus v. Provincial Insurance Co Ltd (Number 17241/82, Supreme Court New South Wales, 11.5.83, unreported), Clarke J refused to order production of a report from a loss assessor who was apparently investigating the circumstances surrounding the plaintiff’s claim which was the subject of the action. Initially legal professional privilege was claimed in respect of this and two later reports, but upheld only for the later reports, His Honour not being satisfied that there was not a dual purpose for which the first report was brought into existence. His Honour considered that on the basis of the analysis in Kimberly Mineral Holdings Ltd v. McEwan (supra) he had a discretion as to whether to order production, and accepted the submission on behalf of the defendant that:
“The interests of justice would not be served by producing the document because it contains material which does not advance the plaintiffs case but which on the other hand would, if the plaintiffs are not genuine, put the plaintiffs on notice of some allegedly suspicious circumstances and enable them to tailor or endeavour to tailor their evidence to meet the circumstances.”
- [20]His Honour noted that the plaintiffs had been hampered in seeking to answer this submission by an inability to inspect the document, but had submitted that it would assist in settling the matter if they had the opportunity of assessing matters which were advanced as reasons why the claim was rejected, thereby improving the prospects of settlement. His Honour expressed the view that the ultimate question was going to be as to the genuineness or otherwise of the plaintiffs, that the advantage that disclosure of this material might improve the prospects of settlement was outweighed by the greater interest of ensuring that the court did justice between the parties, and that the interests of justice were better served by declining to make an order for the production of the document.
- [21]So far as I am aware, there are no decisions in Queensland where the decision in Markus v. Provincial Insurance Co Ltd (supra) has been considered. In New South Wales there have been a number of later cases where this decision has been considered. In Ng v. Goldbert (Number 5342/89, Supreme Court of New South Wales, 17.8.93, unreported), Young J considered whether to allow access to documents which had been produced on subpoena in circumstances where he found that no claim of legal professional privilege continued to protect them, on the basis that there was a discretion whether or not to allow production. He referred to Markus’ case as suggesting that the principal reason for denying access to a document which is otherwise relevant is if it would deprive a litigant of a legitimate forensic advantage. His Honour said at p.26:
“The kernel of the documents that fall into this category are those where the defendant has taken pains to prepare material to attack the credit of the plaintiff and had prepared films or other reports on the plaintiff’s activities, which if the plaintiff were able to sight them before the trial would deprive the defendant of a legitimate advantage of testing the plaintiff’s story using that material”.
In that case His Honour thought that the defendants were proposing to allege that the plaintiff’s claims were groundless because they had been investigated by the Law Society and found not worthy of action, and that it was legitimate that the plaintiff’s have access to the documents which were before the Law Society to test that assertion, a factor which he regarded as outweighing the prospect that the main use in fact to be made of the documents would be to cross-examine the defendant in respect of any discrepancy between his evidence about the plaintiff’s claims and what he had said in documents disclosed to the Law Society about those claims.
- [22]The decision in Markus was considered and followed by Santow J in Broadwater Taxation and Investment Services Pty Ltd v. Hendriks (No 3618/93, Supreme Court New South Wales, 9.9.93, unreported). His Honour was understandably somewhat guarded about his description of the material in issue in that case, a series of affidavits prepared on behalf of the plaintiff which the plaintiff did not want to have to disclose, or to disclose the names of the deponents, until the conclusion of the cross-examination of the defendants. It was material from witnesses which had been obtained by the plaintiff in order to attack a modus operandi advanced by the defendants in affidavit evidence as to the manner in which the defendants came to be aware of certain information. Evidently the case was being tried on affidavits, where ordinarily by the time of the trial and cross-examination each side knows what the evidence in chief of the other side’s witnesses are, and where the plaintiff was evidently proposing to rely on this material as evidence in rebuttal.
- [23]There was no dispute that the court had a discretion to accede to this course, and the fundamental question was what would best serve the interests of justice. His Honour noted that:
“In the nature of things, it is not possible at this interlocutory stage to test whether the defendants would in fact tailor or endeavour to tailor their evidence to meet the circumstances. That conclusion must depend upon a hypothesis which cannot be prejudged, namely, to quote the words of Markus’ case, “if the [defendants in this case] are not genuine’. Rather the test is whether the material would, if known in advance by the other side – being in this case material designed to test the other side’s evidence – enable the other side to tailor or endeavour to tailor their evidence to meet the circumstances. This is always on the hypothesis that the other side is not genuine. I am satisfied on that hypothesis that the materials in question fall into that category”.
Accordingly, His Honour ordered that they not be disclosed until the completion of cross-examination of the defendants. There is, I think, significance in His Honour’s approach that one tests the effect of disclosure on the hypothesis that the other party is not genuine, rather than by making any pre-judgment about whether or not that party is genuine.
- [24]In Wilson v. Camden Plumbing Pty Ltd (19505/93, Supreme Court New South Wales, 1.11.95, unreported), one defendant resisted the inspection by another defendant of documents produced in response to a subpoena dealing with an investigation of the plaintiff, apparently with a view to assessing whether the plaintiff’s claim was genuine. Malpass M considered whether the disclosure of the documents to the other defendant would deprive that defendant of any legitimate forensic advantage, noted that great care should be exercised by the court in denying access to relevant documents, and that this should occur only in rare cases, and gave the other defendant permission to inspect the subpoenaed documents. It is not possible to know whether the documents would have been of particular assistance in relation to resisting the claims of the plaintiff, or in relation to contribution proceedings as between the defendants; if they fell into the former category, the position might not have been the same in relation to the production of documents to the plaintiff.
- [25]The New South Wales cases were further considered in Marsden v. Amalgamated Television Services Pty Ltd [1999] NSWSC 428. In that case the plaintiff was suing the defendant for defamation, and the defendant had pleaded justifying imputations alleging criminal conduct. The facts in that case were complicated and I shall simplify them for the purpose of illustrating the essential relevance of the decision in this application. The defendant was proposing to lead evidence in support of its case from inter alia individuals who alleged that they had been the victims of criminal acts by the plaintiff. Such allegations of criminal acts had been the subject of some police investigation, in connection with which the solicitor for the plaintiff had prepared documents for the purposes of making submissions to the investigating police officer that charges should not be brought against the plaintiff, on the ground that the evidence of the complainants was unreliable. Levine J refused to let the defendant’s advisers inspect such of the documents produced in response to the subpoenas as were not subject to legal professional privilege, on the ground that the material if disclosed would weaken the opportunity for cross-examination of the proposed witnesses for the defendant, and might enable them to tailor their evidence to avoid what could otherwise be damaging cross-examination, and that the defendant was not disadvantaged in not having access to the material.
- [26]His Honour regarded the credibility of complainants and any eye witnesses as critical:
“Their evidence should be untainted by any notification in advance of the mechanisms by which their testimony will be tested in cross-examination.” (para. 56).
The Court of Appeal refused leave to appeal, noting that the ruling had not precluded the possibility of a ruling in favour of inspection in certain circumstances, depending on how the trial developed: [1999] NSWCA 312. That case was in a sense the converse of the present; the defendant was prevented from obtaining access to material, the essential usefulness of which was to test the credibility of witnesses the defendant was proposing to call in support of allegations it was making against the plaintiff.
An Analogy: Surveillance Videos
- [27]There may be some analogy with the issue of whether surveillance video evidence should be disclosed prior to cross-examination of a plaintiff in a personal injury action. This is an issue which has been much debated. On behalf of plaintiffs it is said that the modern approach to litigation favours a “cards on the table” approach under which surveillance videos would ordinarily be disclosed. The purpose of this approach is simply to encourage the settlement of litigation. This was made clear by the judgment of the Court of Appeal in Kahn v. Armaguard Ltd [1994] 1 WLR 1204, where the court refused an application by the defendant to refrain from disclosing video tape which was said to be wholly inconsistent with the plaintiff’s claims, that he had been seriously injured in a motor vehicle accident as a result of which he was unlikely ever to resume employment and was incapable of engaging in any substantial social life.
- [28]It was submitted there on behalf of the defendant that non-disclosure of video evidence would enable fraudulent claims to be exposed by obtaining a commitment by the plaintiff under oath to a particular version which was capable of being demonstrated to be false by the content of the video film. This approach was rejected; Rose LJ who delivered the judgment for the Court of Appeal said at p.1211:
“The cards on the table approach which now operates in my view requires that it should be very rare indeed in a personal injury case for an order for non-disclosure of a video film to be made. … It is, as it seems to me, in the interests of the parties, the legal aid fund, and the efficient dispatch of business by the courts, that cases should be disposed of by settlement at an early stage. Almost always, in my view, this should mean that the disclosure of video film of the kind presently under consideration should be made, even in cases where the defendant’s case is that the plaintiff is a malingerer. It seems to me that the fundamental point which [counsel for the defendant’s] argument breaks down is this. He submits that it is only in cases where there is clear film evidence to support malingering and a lack of bona fides that disclosure should not take place: but it is in precisely those cases that the possibility of the plaintiff trimming his evidence is most remote.”
- [29]Plainly, the Court of Appeal regarded the governing consideration as minimising the number of personal injury claims which actually went to trial. Perhaps as well the way in which the argument was advanced on behalf of the defendant was of influence. The case where the video tape clearly demonstrates the plaintiff’s claim is utterly fraudulent is a case where there is little harm in disclosing the video tape before trial. The clearest case where the video tape should not be disclosed is one where the true significance of the video tape appears only in the course of cross-examination of the plaintiff. To take an example, consider a case where a defendant has a video tape of a plaintiff playing cricket. The video tape may not show the plaintiff doing anything which the plaintiff’s doctors say he cannot do, and the plaintiff may not have claimed in his Statement of Loss and Damage that one of the effects of the injury is that it prevents him from playing cricket. The plaintiff may say nothing about cricket in his evidence in chief, but when asked in cross-examination whether he has been prevented by his injuries from playing cricket, if he claims that he has, and that as a result he has not played cricket since the accident, the video tape will demonstrate that that part of his evidence is false. The plaintiff will be revealed as someone who is willing to lie on oath in support of his claim, and his credibility will be damaged accordingly. Had the video tape been disclosed prior to the trial, it would have been easy enough for him to answer that question differently, thus avoiding the damage to his credibility.
- [30]The real significance of non-disclosure of videos is not confined, in my opinion, to those cases where a defendant does actually have a useful video tape. Whenever a plaintiff is asked in cross-examination “Can you do X?” it is in my opinion of considerable assistance in encouraging plaintiffs to answer honestly for a plaintiff who can in fact still do X not to know that the defendant does not have a video tape of him doing X. In such circumstances he is, I think, much less likely falsely to deny any actual continuing ability to do X. It is, I think, quite unhelpful to approach matters on the basis that witnesses do not lie or exaggerate their claims. Those plaintiffs who do not lie or exaggerate are not prejudiced by not disclosing video tape evidence. But I have seen enough effective use of video tape evidence to know that there exists at least a significant proportion of plaintiffs who are prone to lie or exaggerate, and such behaviour ought to be discouraged.
- [31]Such authorities as exist in Queensland seem to me to support a different approach from that in Khan. In Kitching v. Millaquin Sugar Co Pty Ltd [1992] 1 Qd.R. 194, Senior Master Horton QC, ruling that a video tape did not have to be disclosed, said inter alia:
“It seems to me, in the interests of the administration of justice, that it should not be disclosed prior to trial. One cannot adopt other than a robust approach to the detection of fraud. This is a strong word, and one which one generally hesitates to use … . The detection of fraud often depends upon taking a witness, or party alleged to be guilty of fraud, by surprise. If the existence and content of covert observations were required to be disclosed prior to trial, in my view, such disclosure would defeat the entire object of such activity and enable parties, who have been less than frank with their medical and legal advisers, to continue to adopt that stance with the court with the ensuing injustice to the community.”
- [32]In Martin v. Kennedy [1992] 2 Qd.R. 109, the Full Court held that r. 149A of the District Court Rules did not require disclosure of a video tape recording of a plaintiff’s physical movements nor contemporaneous tape recording of an interview with him. Thomas J said at p.112:
“The very nature of such evidence means that its efficacy would be virtually destroyed if it had to be disclosed before trial. The detection of fraud, and the exposure of exaggeration are important matters in the administration of this area of justice, and I should be reluctant to conclude that evidence of this nature requires to be disclosed in advance”.
Mackenzie J said at p.113:
“When such evidence rebuts claims as to the extent of the effects of an alleged injury and proves exaggeration it is extremely cogent in relation to the issue of the extent of economic loss. In forensic terms its value lies in the element of surprise”.
Ryan J agreed with both judgments.
- [33]A similar approach was adopted by the Full Court in King v. Nolan [1992] 2 Qd.R. 498. Derrington J, with whom Moynihan J agreed, said at p.507:
“If a plaintiff’s statements and conduct have been such that the additional evidence demonstrates it to be fraudulent or deliberately misleading, then there is a special reason why it should not be revealed to him in advance, for such revelation might permit him to turn his deception in another direction, or to avoid discrediting himself after being forewarned.”
I am not aware of any decision of the Court of Appeal in relation to surveillance videos since the Uniform Civil Procedure Rules commenced. It seems to me however that these statements of principle reveal important public policy factors favouring non disclosure in advance of such material.
Has “Cards on the Table” Been Introduced To Queensland?
- [34]It was submitted on behalf of the plaintiff that one of the purposes of disclosure within the new Uniform Civil Procedure Rules is to create a system whereby the parties exchange information in an effort to ensure a full and frank disclosure of documents and information relevant in the proceedings, so that each party should be fully informed of the opposite party’s case that needs to be met at the trial. This would lead to an assessment of the prospect of success and an early determination of the matter, minimising cost and inconvenience to all involved. This was said to be consistent with the general approach to litigation adopted in r. 5 of the Uniform Civil Procedure Rules. In effect, it was submitted that the new rules introduced the English position exemplified by Kahn (supra).
- [35]There is, however, in my opinion, nothing in the Uniform Civil Procedure Rules which enshrines in those rules the “cards on the table” approach which has been adopted in England. Indeed, it was noted by the Court of Appeal in Mercantile Mutual Custodians Pty Ltd v. Village/Nine Network Restaurants and Bars Pty Ltd [1999] QCA 276, that the Uniform Civil Procedure Rules test for disclosure follows the narrower test of discovery adopted by O. 35 r. 4(1)(b) of the former Supreme Court Rules in respect of matters where the writ was issued after 1 May 1994. Counsel for the plaintiff referred to comments by Pincus JA in para. 10 that:
“The former inflexible approach to applications for further discovery … is no longer necessarily appropriate, under the current disclosure system, and because of the notions expressed in r. 5 of the Uniform Civil Procedure Rules.”
That comment, however, was directed to the former strict rule that an affidavit of documents was conclusive except in very limited categories of cases. It was not, I think, really directed to the sort of question which I have to decide in the present case.
- [36]In other respects the Uniform Civil Procedure Rules regime is more restrictive than the English regime in terms of disclosure. Rule 393, for example, dealing with video tape evidence, is less restrictive than the English equivalent O. 38 r. 5: an application for an order exempting a party from the obligation to disclose may be made without notice to the other party in Queensland but not in England, the English rule requires special reasons to be demonstrated for an exemption which are not required by r. 393, and non-compliance with the rule does not render the video inadmissible in Queensland: r. 393(5). This suggests that the “cards on the table” approach has not been transposed from England to Queensland by the Uniform Civil Procedure Rules.
Analysis
- [37]I have been provided with copies of the relevant documents, and an affidavit from the solicitor for the defendant which contains some explanation of the significance of the documents, which is of assistance in understanding the defendant’s position. This affidavit has not been disclosed to the representatives of the plaintiff. I do not consider that any of the documents contain anything the plaintiff would want to put in evidence as part of the plaintiff’s case; indeed, I doubt whether, but for r. 227(2), any of them would have been admissible as part of the plaintiff’s case.
- [38]In Mercantile Mutual Custodians (supra), Byrne J, in connection with an analysis of the scope of the “without prejudice” privilege, cited Magellan Petroleum Australia Ltd (supra) for the proposition that:
“The general law affords a measure of protection against compulsory disclosure of information imparted in confidence. Curial procedures, for example, can be adapted to ensure that trade secrets are not revealed more widely than is necessary to determine the dispute.”
His Honour referred to some other areas which are different from those under present consideration and continued:
“Judicial discretion often serves to respect reasonable expectations of privacy. But the law is reluctant to shield confidences completely; for costs are associated with absolute protection from disclosure, prominent among them the risk posed to accuracy in fact finding.”
- [39]Accordingly, the crucial issue is, what course in the particular circumstances presented here is best calculated to do justice between the parties, by the trial judge being able to ascertain the truth. Will disclosure of this material assist in an exposure of relevant evidence which reveals what really happened, or will disclosure of the material facilitate in fabrication of evidence or reduce the capacity of the defendant to expose a fraudulent claim, thereby leading the court away from rather than towards the truth? Generally, the assumption is that providing more information, particularly information which is contemporaneous, or relatively contemporaneous, will throw more light on the circumstances and be of assistance in leading a court to the truth. But that is perhaps less likely to be the case where the documents are not original contemporaneous documents generated as a consequence of the matters which gave rise to the dispute, but merely record some other attempt to ascertain what has happened.
- [40]I adopt the approach of Santow J of assessing the disadvantage to the defendant of disclosing the documents on the hypothesis that the plaintiff is not genuine. In my opinion, however, when considering any countervailing disadvantage to the plaintiff in being deprived of the documents, it is appropriate to assess the position on the hypothesis that the plaintiff is genuine. The plaintiff has to prove that the vehicle was stolen in order to succeed; the defendant has to prove (broadly speaking) that it was stolen by or with the connivance of the plaintiff, in order to defeat the claim. If the plaintiff is genuine, I do not think there is anything in any of this material which assists the plaintiff either to prove that the vehicle was stolen or to resist the proposition that he was involved. There is nothing in the material which tends to suggest that the vehicle was stolen by someone other than the plaintiff. There is some material disclosed in the documents which may be of some assistance in the cross-examination of the plaintiff, depending on what the plaintiff says, but to some extent this is limited by the circumstance that the documents are not the plaintiff’s documents.
- [41]Insofar as the documents record things stated by people, if any of those people came to be called as witnesses, then any discrepancy between what was said in evidence and what is recorded in the documents could suggest a line of cross-examination and if a witness says something different from what is recorded in the documents, may make it possible to attack the credit of the witness by proof of a prior inconsistent statement. But that would apply in theory to any document which recorded something said by someone, and the persons concerned might be called as witnesses, either by the plaintiff or the defendant. I think on the whole it is not very helpful to analyse the documents on the hypothesis that they may make it possible to prove a prior inconsistent statement by someone who may be called as a witness, if that person when called makes a statement inconsistent with that recorded in the document.
- [42]Most of the documents are concerned with the investigation of the claim. This investigation is summarised in a letter which could be described as a report: document 93, one of the controversial documents: see Exhibit BJM3. If persons involved in the investigation were to be called to give evidence, and they gave evidence which was inconsistent with the matters recorded in these documents, the availability of such documents may assist in cross-examining them as to their credit. Assuming that the defence case follows the plaintiff’s case at the trial, disclosure of the documents after the plaintiff has closed his case would make them available for cross-examination, and if necessary, evidence in rebuttal. The possibility that disclosure might be postponed until some appropriate point in the trial is shown by the actual order made in Broadwater Taxation and Investment Services Pty Ltd (supra).
- [43]Documents relating to the investigation carried out for the purposes of assessing the plaintiff’s claim are not necessarily documents which fall within the current test for disclosure: documents directly relevant to an allegation in issue in the pleadings: r. 211(1)(b). One of the documents in respect of which disclosure is resisted, document 39, falls into this category. It is simply the log prepared by the investigators of the work done in the course of their investigation, showing the hours worked each day, to justify the fees charged. In my opinion it contains nothing which is directly relevant to an allegation in issue in the pleadings, in the sense of being something which tends to prove or disprove an allegation which is in contention: Robson v. Reb Engineering Pty Ltd [1997] 2 Qd.R. 102 at 105. It may be that the document would have been discoverable under the test applicable under the former District Court Rules, the so called Peruvian Guano test[3], but that is not applicable: Mercantile Mutual Custodians Pty Ltd (supra) per Pincus JA at para. 7. In my opinion, document 39 is not discoverable under the current rules, and I would refuse to order its production on that ground.
- [44]It was submitted on behalf of the plaintiff that there is nothing in the material to support a conclusion that the plaintiff would use the documents for a collateral purpose or be involved in an abuse of process. However, I think the approach adopted by Santow J, of assessing the matter on the hypotheses that the claim is fraudulent, is the only realistic approach to adopt for the purpose of an application of this nature. As His Honour pointed out, whether the plaintiff is not genuine cannot be prejudged, that is to say, cannot be determined in advance of the trial.
- [45]It was submitted on behalf of the plaintiff that any report of an expert is not privileged from disclosure (r. 212(2)) and that therefore document 93 which could be described as a report on the investigation might be subject to disclosure as a report of an expert. I think it is of some importance here to note the effect of r. 423. If the defendant proposed to call expert evidence, it must, within the time specified in that rule, advise the plaintiff of the substance of the evidence which it is proposed to adduce from the witness as an expert. That disclosure will occur prior to the trial, and accordingly the plaintiff will at that time have the opportunity to consider the case he will have to meet insofar as it consists of expert evidence. One of the consequences of disclosure of such evidence prior to trial is that it gives the party to whom disclosure is made the opportunity to test that evidence, and if contrary expert evidence is available, arrange for such evidence.
- [46]Assuming that some of the documents record expressions of opinion by an expert, for such material to be put in evidence on behalf of a defendant at the trial, it would have to be disclosed to the plaintiff pursuant to r. 423 in time to enable the plaintiff to prepare expert evidence in response. Accordingly, it is not necessary for the proper preparation of the plaintiff’s case for that material to be made available now. In my opinion, I should deal with the present application on the assumption that r. 423 will be complied with. Accordingly, it is not the case that refusing production of these documents will expose the plaintiff to having expert evidence called by the defendant at the trial without warning. If production is merely postponed until after the closure of the plaintiff’s case, the considerations to which I referred earlier about the availability of the documents for cross-examination of the defendant’s witnesses, insofar as that were relevant, would still apply. In these circumstances I do not think that there is any substance in the submission that these documents or any of them should be disclosed because they are expert reports. In any case, none of them, in my opinion, is a statement or a report of an expert as to a matter in issue, even if some of them could be described as recording matters of opinion.
- [47]It was submitted that disclosure of the material would assist in improving the prospects of settlement, because it would give the plaintiff a clearer understanding of the strength of the defendant’s case. No doubt that is always the case, where a defendant seeks to retain documents with a view to the possible exposure of fraud by the plaintiff, either in making or exaggerating the claim. As I discussed earlier in the context of different approaches in England and Queensland to the disclosure of surveillance videos, this consideration will always run counter to a desire to keep material back in order to expose fraud. The authorities referred to in that context suggest that the balance ought to be in favour of the exposure of fraud. In this context I think that it is not appropriate for me to express any view, or even indeed form any conclusion, about the potential effectiveness or otherwise of using the material disclosed in these documents to expose a fraudulent claim on the part of the plaintiff. It would, I think, be quite inappropriate for me to make any comment of that nature; rather, I should follow the approach adopted in New South Wales of assessing the documents on the assumption that the plaintiff’s claim is fraudulent. On that assumption, the issue simply becomes whether disclosure of the contents of the document would be likely to tend to impede the exposure of that fraudulent claim, because that would assist the plaintiff to tailor his evidence.
- [48]I am conscious of the fact that the plaintiff has made a statutory declaration which sets out a number of matters concerning the circumstances of the claim, dated 28 October 1998: document 88, production of a copy of which has not been refused. Nevertheless, there are obviously many matters which could be raised on cross-examination which are not covered by that statutory declaration. I also consider that documents concerning the investigation of the plaintiff’s claim may have an indirect significance which extends beyond the actual information which they record, by providing clues as to the scope and direction of the investigation which may be of assistance, again on the hypothesis that the claim is fraudulent, in the fabrication or tailoring of evidence.
- [49]In summary I accept the reasoning, and applicability under the new Uniform Civil Procedure Rules, of the approach adopted in the New South Wales cases, particularly Markus (supra). Consistent with that approach, and having considered the documents, in my opinion it is appropriate to postpone the duty of disclosure until after the close of the plaintiff’s case. For reasons discussed earlier, in my opinion, that is better done by an order under r. 224 relieving the defendant until that time of the duty of disclosure. That would have the effect of avoiding the application prior to that time of r. 225, as discussed earlier. Once the plaintiff’s case has closed, the opportunity for the plaintiff to tailor evidence will have ceased, and the documents would be available for cross-examination of the defendant’s witnesses if they were of any assistance for that purpose. I should add that, if I were wrong in the conclusion that document 39 is not subject to disclosure anyway, I would regard it as being one of the documents which I would make subject to this order for delayed disclosure, on the basis that if disclosed it would throw light on the scope of the defendant’s discovery.
- [50]I therefore refuse to order the production of document 39. I order that the defendant be relieved, until after the close of the plaintiff’s case, of the duty of disclosure of documents number 2, 3, 4, 33, 40, 41, 48, 58, 59 and 93 in the “NRMA Claim File” part of Part 1 of Schedule 1 of the defendant’s list of documents dated 1 October 1999. The plaintiff’s application is otherwise dismissed.
- [51]With regard to costs, I think it is fair to say that the plaintiff’s position was very much one of submitting to the determination of the court. The plaintiff drew attention to various relevant authorities, and otherwise made reasonable submissions directing attention to relevant considerations favourable to the plaintiff. Obviously, those submissions have not been successful, but I think it was reasonable for them to be made, and for the reasons explained earlier, it was the defendant who bore the onus and was seeking an indulgence or concession from the court in allowing a departure from the ordinary principles of disclosure. In these circumstances I think that the actual outcome is of less significance, and that the costs to both parties to the application should follow the event in the trial when a final decision will have been reached as to whether or not the claim is fraudulent. Overall, I think that the costs of the application should follow the event in the trial, and I order the costs of each party of the application be costs in the cause. (That is to say, be part of each party’s costs of the proceeding commenced by the plaint).
- [52]In the circumstances I will order that the affidavit of Anthony Charles Cotter sworn 20 December 2000, together with the exhibits thereto (most of which are copies of the documents in dispute) be placed on the file in a sealed envelope which is not to be opened except by order of a judge or, if an appeal is instituted, by a deputy registrar of the Court of Appeal.
Footnotes
[1] That is a proceeding started by claim, or ordered to continue as if started by claim, or where a court has directed that the Part apply: r. 209(1).
[2] Inserted by Civil Justice Reform Act 1998 s. 24
[3] Compagnie Financiere du Pacifique v. Peruvian Guano Co (1882) 11 QBD 55: “A document which may fairly lead to a train of inquiry which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.”