Altmann v IOOF of Victoria Friendly Society
[2004] QDC 5
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- Altmann v IOOF of Victoria Friendly Society[2004] QDC 5
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Altmann v IOOF of Victoria Friendly Society[2004] QDC 5
Altmann v IOOF of Victoria Friendly Society[2004] QDC 5
DISTRICT COURT OF QUEENSLAND
CITATION: | Altmann v IOOF of Victoria Friendly Society [2004] QDC 005 |
PARTIES: | WARREN JOHN ALTMANN Plaintiff v IOOF OF VICTORIA FRIENDLY SOCIETY (ARBN 053 343 847) Sixth Defendant and others |
FILE NO/S: | D1473 of 2001 |
DIVISION: |
|
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 30 January 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 May 2003 |
JUDGE: | McGill DCJ |
ORDER: | The sixth defendant number individually each document, or each page, within each bundle of documents identified as a separate item in the list of documents served on behalf of the sixth defendant on 16 April 2003, and the supplementary list of documents served on behalf of the sixth defendant on 27 may 2003, within 14 days. The sixth defendant pay the plaintiff’s costs of the application. |
CATCHWORDS: | PRACTICE – Disclosure – production of documents for inspection – how documents produced to be identified UCPR r. 217(2)(b), (5)(c). Australian Flight Test Services Pty Ltd v Minister for Industry Science & Technology & Ors (Federal Court, O'Loughlin J, 20 November 1996, unreported) applied. Command Energy Pty Ltd v Nauru Phosphate Royalties Trust [1998] VSC 162 – followed. Cooke v Smith [1891] 1 Ch 509 – followed. Greenhill Nominees Pty Ltd v Aircraft Technicians of Australia Pty Ltd [2001] QSC 007 – distinguished. Hill v Hart-Davis (1884) 26 Ch D 470 – followed. Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd (No 2) [1999] 1 Qd R 163 – applied. Walker v Poole (1882) 21 Ch D 835 – followed. |
COUNSEL: | M Horvath (solicitor) for the plaintiff C Jennings for the sixth defendant |
SOLICITORS: | Quinn & Scattini for the plaintiff MacGillivrays for the sixth defendant |
- [1]This application raises a practical issue in relation to disclosure of documents. The respondent/sixth defendant has disclosed some 3,000 documents, most of which are contained in bundles. The documents within the bundles are in chronological order, but are not numbered or otherwise individually identified. The applicant plaintiff claims that it is the respondent’s obligation to number the documents in the bundles. The respondent says that it has complied with its obligations in relation to disclosure, and will not number the individual documents. Indeed, at one point during inspection the respondent’s solicitor refused to permit the applicant’s solicitor to number the documents himself. For the reasons set out below, in my opinion there is an obligation on the party making disclosure by reference to bundles of documents in the ordinary case to number or otherwise individually identify those documents, unless there is some good reason why in a particular case that is unnecessary or inappropriate.
Background
- [2]By a claim filed 29 March 2001 the plaintiff sought damages on various bases against a number of defendants, including the sixth defendant, in respect of the purchase by the plaintiff from the sixth defendant in 1995 of units in a resort in Cairns. The claim against the sixth defendant is pursuant to the Trade Practices Act. On 25 February 2003 the sixth defendant filed a notice of intention to defend and defence, in which the making of any representations to the plaintiff was denied, any liability was denied, the basis upon which the plaintiff is claiming damages was disputed, and it was pleaded that the claim had been brought outside the three year limitation period contained in the Trade Practices Act 1974. A reply was filed on 4 March 2003.
- [3]On 16 April 2003 the sixth defendant served a list of documents on the plaintiff.[1] Part 1 of Schedule 1 consists of 20 entries, some of which obviously relate to individual documents, and some of which obviously consist of a bundle of documents. For example the first is simply “various court documents filed in the proceeding.” No particular objection was made to that entry, and in most cases it would be unnecessary to disclose in more detail all of the “court documents” in an action. A number of the entries however are described simply as “file containing bundle of correspondence” with a title and a range of dates. These entries are said to reflect the title of the file in which the documents were contained. Each file varied in size with the largest file containing over 1,000 documents.[2] The documents were securely fastened and arranged in chronological order.
- [4]The list also contained 11 entries in part 2, documents for which privilege was claimed; all of these were in respect of groups of documents, and were described by reference to category only. The eleventh entry was simply “other documents prepared by the sixth defendant or its legal advisers” in respect of which privilege was claimed on the ground: “brought into existence dominantly for the purpose of this action or in anticipation of litigation.” There was no specific argument addressed to the scope of the claim for legal professional privilege, but this appears to be in terms a claim of privilege for any other document in respect of which privilege might be claimed.
- [5]A supplementary list of documents was provided on 27 May 2003.[3] It identifies various other folders, usually by the formula “manila folder entitled [name] containing bundle of documents including …” There are 14 additional “documents” in this list, although one is a single document, and there are two other entries which may refer to single documents.
- [6]On 24 April 2003 a solicitor and an articled clerk from the plaintiff’s solicitors attended the office of the solicitor for the sixth defendant to inspect the documents. The documents had been arranged on a boardroom table as they appeared in the list of documents, and all of the files were said to be in chronological order except for one which contained a number of sub-files which were arranged in accordance with 12 specific sub-categories.[4] It is common ground that the documents were not numbered individually, or paginated. The solicitor for the sixth defendant advised that if copies were requested of any documents they should be marked with post-it notes.
- [7]The plaintiff’s representatives examined the documents for about an hour, and then asked that they be numbered individually. The solicitor for the plaintiff expressed concern that it would not be possible to confirm later that the copy documents provided were all of the ones requested, and it would not be possible to identify other documents later without conducting a further inspection. The solicitor for the defendant said that he did not think it was necessary to number the documents individually as he was available to identify any documents for which copies were required, and the documents were already arranged according to the relevant categories. Apparently the matter was left there at that stage, but there was a further inspection arranged on 2 May 2003; matters did not progress further on that occasion, when an offer by the plaintiff’s solicitor to paginate the documents himself was refused. After an exchange of correspondence, this application was filed on behalf of the plaintiff.
The rules
- [8]Under the Uniform Civil Procedure Rules a duty of disclosure is imposed by r. 211. That duty is to be performed, subject to r. 216 and r. 223, by delivering a list of documents and, at the other party’s request, delivering copies of the documents mentioned in the list other than those to which privilege from disclosure is claimed: r. 214(1). Rule 216 provides that if it is not convenient for a party to deliver documents under r. 214 because of the number, size, quantity or volume of the documents or some of the documents, or a requirement for production of documents is made under r. 215, disclosure is effected by producing the documents for inspection. Clearly one way or another r. 216 applied in the present case, and hence the documents were to be produced for inspection.
- [9]This was governed by r. 217. Relevantly this provides:
“(2) The documents must be –
- (a)contained together and arranged in a way making the document easily accessible to, and capable of convenient inspection by, the party to whom the documents are produced; and
- (b)identified in a way enabling particular documents to be retrieved easily on later occasions.
…
- (3)For sub-rule (2), the documents may –
- (a)be contained by files, folders or in another way; and
- (b)be arranged –
- (i)according to topic, class, category or allegation in issue; or
- (ii)by an order or sequence; or
- (iii)in another way; and
- (c)be identified by a number, description or another way.”
It seems to me clear enough that the sixth defendant complied with the requirements of sub-rules (2)(a) and (5)(a), and (b). But it does not seem to me that the requirements of (2)(b) and (5)(c) were satisfied.
The authorities
- [10]The leading and most relevant decision for present purposes is the decision of the Court of Appeal in Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd (No 2) [1999] 1 Qd R 163. That case concerned the identification of documents in respect of which a claim of privilege had been made, but the test which was applied there was essentially the same test stated in r. 217(2)(b). The Chief Justice (with whom the other members of the Court agreed) said at p. 170: “To my mind, the identification will be sufficient if it will facilitate the production of a particular document for which the privilege has been claimed, in the event, for example, of a cesser of the privilege (through, for example, publication dehors the proceedings) or should the Court order production upon a ruling that the privilege does not in fact attach. The manner of identification adopted here would allow for retrieval in such circumstances.” The manner of identification in that case was that the documents and correspondence in respect of which privilege was claimed were in folders marked B and C and had been numbered B1 to B140 in the case of the documents in folder B, and numbered C1 to C5 in the case of the documents in the folder C. This does not involve, or does not necessarily involve, the numbering of individual pages, but does involve the numbering of individual documents within the folder. Obviously however paginating the bundle as a whole would achieve the same result in a practical sense.
- [11]His Honour went on to quote Lindley LJ in Budden v Wilkinson [1893] 2 QB 432 at 437, speaking of documents which had been numbered and tied in a bundle: “You want nothing more to identify those documents, or to enable the Court to order them to be produced, and to enforce the order if it is right to do so.” That it seems to me is the crucial issue: the ability to identify later whether a particular document is one which is covered by the affidavit of documents.[5] This is important not simply in terms of the matters discussed in Interchase, in the context of privileged documents, but in relation to disclosure of documents generally. Rule 225 provides consequences for non-disclosure of documents, including that the party failing to disclosure the document must not tender the document or adduce evidence of its contents at the trial without the court’s leave, is liable to contempt for non-disclosure of the document, and may be the subject of a costs order. In the application of r. 225 it is obviously essential for the documents to be able to be properly identified, so that it can be determined whether a particular document was or was not disclosed. In addition, r. 227(2) makes a document disclosed admissible in evidence against the disclosing party without the proof. That it seems to me as the major difficulty with the method of discovery adopted by the sixth defendant in the present case; it is not going to be possible to know later whether or not a particular document has been disclosed in one of these bundles or files.
- [12]It is not enough to say that the documents are in chronological order, because it does not appear that the dates on the documents are unique or definitive. It may be that in some circumstances there could be a bundle of documents where it was sufficient to know that they were in chronological order; for example a file of daily reports, where each report was identified by a particular date, and any date within a relevant period identified a unique report, would not need to be numbered as well as dated. Similarly bundles consisting of invoices or cheque butts which are numbered already would not need to be separately numbered for the purposes of disclosure. There may well be other suitable alternative methods of identification. But the crucial question in every case must be: is it going to be possible to identify the particular document later as having been disclosed.
Other decisions
- [13]There are decisions of long standing which establish that discovery is appropriately made by means of bundles where there are numerous documents, although with the qualification that the individual documents within the bundle can be identified.[6] In Walker v Poole (1882) 21 Ch D 835 Kay J said at p. 836: “The ordinary mode of setting out such letters has been settled after an immense amount of litigation, and the proper method is to refer to them as contained in a bundle, each document in the bundle being identified by a letter or some other method of identification; that is all that is necessary.” In that case a failure to use that method for 2,275 letters resulted in a costs order against the defendant solicitors who had listed the documents individually. There was a similar criticism of a solicitor who had listed documents individually by Cotton LJ in Hill v Hart-Davis (1884) 26 Ch D 470 at 472: “They ought to have been set out in bundles, and scheduled and numbered in such a way that the defendant might have asked for those which he wanted to see, specifying them by their numbers.” In Cooke v Smith [1891] 1 Ch 509 Kay LJ at p. 523 said: “You must not only make up the documents in bundles, but you must describe what the documents are – for example a bundle of letters from A to B; and you must identify each document by marking it specially.”
- [14]Some of these decisions were referred to by O'Loughlin J in Australian Flight Test Services Pty Ltd v Minister for Industry Science & Technology & Ors (20 November 1996, unreported). That case involved an issue of excessive disclosure, but his Honour was critical of discovering documents simply by reference to bundles or files.[7] The same authorities were referred to by Master Evans in Command Energy Pty Ltd v Nauru Phosphate Royalties Trust [1998] VSC 162, where the point was made was that it was not a question of whether a decision could be made as to whether or not to inspect the document, but simply whether it was properly identified. The master said at para 9 that each document within the bundle should be separately numbered[8] because otherwise “the Court could not know with certainty how many documents are comprised in such a bundle.” Although I could not say that the practice was universal, I have certainly seen many affidavits of documents over the years which included references to bundles which did follow the approach in Cooke v Smith (supra).
- [15]The sixth defendant also relied on a decision of Wilson J in Greenhill Nominees Pty Ltd v Aircraft Technicians of Australia Pty Ltd [2001] QSC 007. In that case the list of documents included a schedule of documents in respect of which privilege was claimed which were described in very general terms, as categories of documents, and her Honour declined to order a supplementary list of documents describing them in more detail. In my opinion that was simply a decision that it was not appropriate to make an order requiring further details in relation to matters where it was obvious that the documents in question were subject to legal professional privilege, and where there was apparently no reason put forward to justify a more detailed description. I do not understand that this decision involves a general approval of the disclosure of documents simply by reference to vaguely defined categories; if it did, it seems to me with respect difficult to reconcile with the decision of the Court of Appeal in Interchange. There may well be cases such as that where there would be no good purpose served by ordering more detailed disclosure. That is not the case here, where it is likely that only a handful of the documents disclosed will ultimately prove to be of importance to the trial, but where there is some importance in being able to identify those particular documents, and in being able to show that they were disclosed in the list of documents.
- [16]Apart from that, I do not think that the Court should be encouraging lists of documents which amount to little more than a list of categories of documentation.[9] There is a risk that in those circumstances the list will be based on what documents might exist, rather than be one of the documents which have been identified as documents disclosure of which is required in accordance with the rules. Vague descriptions of this kind in lists of documents invite arguments later as to whether or not a particular piece of paper was or was not covered by that description. The process of disclosure should always be tied directly to the actual documents which do meet the criteria in the rules, rather than intuitively identified categories of documents which if they exist would meet those criteria.
Conclusion
- [17]In these circumstances in my opinion the plaintiff is entitled to the order sought. Indeed, it seems to me that strictly speaking the present lists of documents are defective, because they ought to follow something more like the formula used in Interchase quoted at p. 168 of the report, or in some other way provide a similar degree of identification. However, the only order sought in the application is an order that the documents in the list of documents be numbered. In my opinion the sixth defendant should be given the option of numbering the pages or numbering the documents, but subject to that in my opinion the order is appropriate. I therefore order that the sixth defendant number individually each document, or each page, within each bundle of documents identified as a separate item in the list of documents served on behalf of the sixth defendant on 16 April 2003, and the supplementary list of documents served on behalf of the sixth defendant on 27 May 2003, within 14 days. I order the sixth defendant to pay the plaintiff’s costs of and incidental to this application. The application was resisted, and there is no reason why the costs should not follow the event.
- [18]On the subject of costs, it occurs to me that a good deal of paper, and hence I suspect some costs, has been wasted in this matter because of a failure of the parties to take advantage of the beneficial concession provided by r. 6(2). Indeed, it seems to me that the profession generally does not take as much advantage of that rule as ought to be taken.
Footnotes
[1]Copies are exhibited to the affidavits of Horvath filed 27 May 2003, and Williams filed 29 May 2003.
[2] Affidavit of Williams filed 29 May 2003 para 5.
[3] A copy is exhibited to the affidavit of Williams filed 29 May 2003.
[4] Affidavit of Williams para 13.3.
[5] See also Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 253.
[6]English decisions to the effect that the documents in a bundle must be numbered or otherwise individually identified include: Taylor v Batten (1878) 4 QBD 85 at 88 (C/A); Bewicke v Graham (1881) 7 QBD 400 (C/A); Milbank v Milbank [1900]1 Ch 376 (C/A). Australian decisions to the same effect include Ricketson v Smith (1896) 17 LR (NSW) Eq. 203; O'Brien v McKenzie (1900) 21 LR (NSW) Eq. 117, and the cases referred to in note 8. See also Matthews and Malek on Discovery (1992) p. 112; Bailey and Evans “Discovery and Interrogatories in Australia” (1997) p. 15,466.
[7] This decision must be approached with some caution, because it refers with apparent approval to aspects of Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410 which was rejected in Interchase (supra) at p. 172. It seems to me however that this is a different point from the one which is presently relevant.
[8] See also Browne v Browne (1895) 12 WN (NSW) 3: “They should be tied up in bundles …, each document identified with a number and each bundle by a letter.” That practice was followed in City Mutual Life Assurance Society Ltd v Taylor (1914) 31 WN (NSW) 135. That was also the practice in Victoria: The Lion Rolling Mills Pty Ltd v Noyes Bros (Melb) Pty Ltd [1915] VLR 383 at 386, and see Williams “Supreme Court Practice” para [31.13.6].
[9] In Braegrove Pty Ltd v Bendeich [1993] 2 Qd R 239 Williams J as he then was said at p. 242 that “The reference in general terms to various categories of allegedly privileged documents is wholly unacceptable.”