DISTRICT COURT OF QUEENSLAND

1. [1]
   On the morning of trial, 18/4/02, the plaintiff disclosed a personal diary for the year 2000 that had not previously been disclosed. The presiding Judge adjourned the trial back to the callover list. The trial has been set down for 3 days from September 3, 2002.

2. [2]
   This is an application by the Defendant for the production of the plaintiff’s personal diaries for the years 1999, 2000 and 2001. The application also seeks an order for forensic examination of the diaries. I grant leave to the Defendant to bring the application.

3. [3]
   The expert forensic document examiner asserts that to assess the contemporaneity of the year 2000 diary entries requires a comparison of the preceding and following years in order to ascertain the author’s habits. In essence, the defendant is alleging that the plaintiff has forged the entries in the 2000 diary.

4. [4]
   The defendant submits that the 2000 diary is relevant on the basis that it contains evidence of conversations between the plaintiff and witnesses who the defendant intends to call at trial, and refers to s 92 Evidence Act. No mention was made of s 18 Evidence Act.

5. [5]
   The defendant’s Application does not state which provision of the UCPR founds the Application as required by the UCPR.

6. [6]
   The Plaintiff argued that the Application should be dismissed as the 1999 and 2001 diaries are not disclosable as there is no suggestion by the defendant that anything contained therein is “directly relevant to an allegation in issue in the pleadings”, as required by r211(1)(b); and there is no basis for warranting forensic examination shown by the Defendant.

7. [7]
   Senior Counsel for the plaintiff gave an Undertaking to the Court that the Plaintiff will not seek to rely on the diaries at trial.

8. [8]
   The solicitor for the Defendant submitted that, notwithstanding this undertaking, the diaries are relevant documents.

Disclosure

9. [9]
   The disclosure and production provisions of the UCPR adopted Rule O35 of the Rules of the Supreme Court .

10. [10]
    Rule 211 provides that the obligation to disclose extends only to documents "directly relevant to an allegation in issue" in the pleadings, [r211(1)(b)] or directly relevant to a matter in issue in the proceedings where there are no pleadings[r211(1)(c)]. In this matter there are pleadings and thus relevance is assessed in relation to the allegations in issue in the pleadings.

11. [11]
    The previous Rules in the District and Magistrates Courts extended to documents that related to matters in question. It is no longer sufficient that the document relates generally to the matters in question. The UCPR move away from the Peruvian Guano chain of inquiry model, and restricts the scope of the obligation to disclose to documents that are "directly relevant to an allegation in issue". As Pincus JA explained in Mercantile Mutual Custodians Pty Ltd v Village Nine Network Restaurants & Bars Pty Ltd [2001] 1 QdR 276 at 282 ([1999] QCA 276 at para 7):

The law in this State differs from that laid down by Brett LJ in Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, in that if a document is not "directly relevant" to an allegation in issue it need not be disclosed. It is not enough, to justify an order for disclosure, to hold the opinion that "it is reasonable to suppose [that the document] contains information 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". Nor, if a document sought is not directly relevant to an allegation in issue, does it matter whether or not it "is a document which may fairly lead [the party requiring discovery] to a train of inquiry, which may have either of these two consequences": see per Brett LJ at 6. No doubt this deliberate narrowing of the obligation to provide disclosure makes it all the more important that practitioners and their clients earnestly fulfill their obligations under the rules relating to the topic...

12. [12]
    In Robson v Reb Engineering Pty Ltd [1997] 2 Qd R 102 at 105 Demack J stated: "… the word 'directly' should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, 'directly relevant' means something which tends to prove or disprove the allegation in issue."

13. [13]
    A diary is clearly a document that should be disclosed if directly relevant to an allegation in issue. Documents such as diaries may be directly relevant, even if there is no particular entry in them that is directly relevant – ie it may be the absence of an entry that may be significant: see eg Poteri v Clarke (unreported, District Court of Queensland, Brisbane Registry, No 2669 of 1998, Boulton DCJ, 9.11.98), in which Boulton DCJ ordered discovery of any business diaries of one of the defendants for a particular financial year.

14. [14]
    If a document has not been disclosed which should have been disclosed, the person on whom the onus lay is not permitted at trial to tender the document, or adduce evidence of its contents, without the court's leave. The party is also liable to contempt for not disclosing the document and may be ordered to pay all or part of the costs of the proceeding.

15. [15]
    On the pleadings as they currently stand, I am unable to see that the 1999 and 2001 diaries are amenable to an order for disclosure.

16. [16]
    Even if the 1999 and 2001 diaries were disclosable there are limitations on the use to which documents can be put once disclosed. In McCabe v British American Tobacco Australia Services Ltd (No 3) [2002] VSC 150 Byrne J stated:

It is clear that, in civil proceedings, documents produced by one party to litigation to another party pursuant to the coercive process of the Court are received subject to an implied undertaking to the Court [Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764, per Hobhouse J] not to disclose them for any purpose other than in relation to that litigation [Riddick v Thames Board Mills Ltd [1977] QB 881; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10]. … The rationale behind this principle lies in the fact that the court's coercive process is an interference with the private right of a person to the confidentiality of their own documents or information.

17. [17]
    Subjecting disclosed diaries to forensic examination, as is intended here, is not allowable under the disclosure rules: Mantaray Pty Ltd v Brookfield Breedings Co Pty Ltd (1992) 1 QdR 91.

18. [18]
    All that the disclosure Rules allow is the inspection and taking of a copy. The disclosed documents must be produced at the trial if a notice to produce them has been given with reasonable particularity, and their production is called for at the trial. If a disclosed document is tendered at the trial, it is admissible in evidence against the disclosing party as relevant, and as being what it purports to be (r227).

19. [19]
    The Defendant has asserted that the 1999 and 2001 diaries are relevant to the credit of the Plaintiff. The UCPR exclude from disclosure documents that are relevant only to credit: r212(b). Unless credit is itself in issue, and there is nothing pleaded to this effect, the 1999 and 2001 diaries are not directly relevant to an allegation in issue in the pleadings.

20. [20]
    On the material presently before me, I consider that the 1999 and 2001 diaries and the portions of the 2000 diary not yet disclosed are neither disclosable nor producable. If they were I would need to consider the issue of how they ought to be produced and the issue of the privacy of the Plaintiff.

Inspection, Detention, Custody and Preservation of Property

21. [21]
    Obtaining possession of an original document to subject it to forensic testing requires an application under r 250 which provides as follows:

250.(1) The court may make an order for the inspection, detention, custody or preservation of property if—

(a) the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or

(b) inspection of the property is necessary for deciding an issue in a proceeding

(3) The order may authorise a person to do any of the following—

(a) enter a place or do another thing to obtain access to the property;

(b) take samples of the property;

(c) make observations and take photographs of the property;

(d) conduct an experiment on or with the property;

(e) observe a process;

(f) observe or read images or information contained in the property including, for example, by playing or screening a tape, film or disk;

(g) photograph or otherwise copy the property or information contained in the property.

22. [22]
    The diaries fall within the definition of “Property" [any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and including things in action: Acts Interpretation Act 1954, s 36].

23. [23]
    If the 2000 diary were to be admitted into evidence (contrary to the Plaintiff’s undertaking) as bolstering the credit of the Plaintiff in relation to the allegations in issue, then forensic inspection may indeed be necessary to determine an issue in the proceedings, namely, the Plaintiff’s credibility.

24. [24]
    The judgment of McGill DCJ In Hartley v Australia Meat Holdings Pty Ltd (unreported, District Court of Queensland, Brisbane, No 133 of 1995, McGill DCJ, 13.12.96) gives an indication of the meaning of "necessary" in the context of this Rule. In relation to the corresponding rule in the previous District Court Rules His Honour said (at p4):

The purpose of the rule is to make orders "that may be necessary", that is to say necessary for the purpose of doing justice between the parties to the action: Smith v Peters (1875) LR Eq 511 at 513, quoted in Rutile Mining v Australian Oil Exploration at p485. The use of that expression, however, suggests that an order under the rule is not one which is made as if power were in terms one to make "any order that may be appropriate". The applicant for such an order should be able to show that the inspection sought is necessary in the sense that there is good reason to think that the applicant will be prevented from obtaining a just resolution of the cause or matter unless such an order is made. It follows that the inspection ordered should be no more extensive than such as in necessary in this sense. An order should not be made for an inspection which is really no more than an attempt by a plaintiff to fish for a case: Tudor Accumulator Co Ltd v China Mutual Steam Navigation Co Ltd [1930] WN 200 at 201 per Scrutton LJ; Marconi's Wireless Telegraph Co Ltd v The Commonwealth (1912) 15 CLR 685; Reid v Frost Developments Pty Ltd (1964) 81 WN (pt1) NSW 389.

25. [25]
    I am not convinced on the material presently before me that the Defendant has shown that the Orders it seeks are necessary in the sense that there is good reason to think that the applicant will be prevented from obtaining a just resolution of the cause or matter .

26. [26]
    I order that:

• The Application of the Defendant, filed 1 August 2002, be refused.
• The Defendant pay the Plaintiff’s costs of and incidental to the Application.