AP v RD[2016] QDC 49

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this matter there is an application made in a proceeding by the plaintiff, for orders relating to disclosure of material by the defendant.

2. [2]
   In the substantive proceeding, the plaintiff seeks an injunction and damages in relation to alleged defamatory publications, by telephonic communications with, in the first instance, an employee and in the second instance, the head of college of the [*] school, both of which occurred on 10 March 2014.

3. [3]
   It is sufficient to note that:

1. (a)
   It is pleaded that each publication carried, amongst others, the imputations that the plaintiff is a person who engages in illegal sexual activities, is a paedophile, is a sex offender and is a sexual deviant;

2. (b)
   In respect of the second publication, it is admitted that the communication included the words that the defendant had “acted inappropriately with my daughter”; and

3. (c)
   Apart from denying the pleaded imputations, the defendant, in relation to each publication, pleads that:

1. (i)
   the words were true (for reasons subsequently pleaded, including in paragraph 16 of the further amended defence as to the inappropriate actions of the plaintiff with the defendant’s daughter);

2. (ii)
   any defamatory imputations carried by those words (which are denied) were substantially true for the purposes of s 25 of the Defamation Act 2005 (Qld); and

3. (iii)
   the words were published on an occasion of qualified privilege for the purposes of s 30 of the Defamation Act 2005 (Qld).

4. [4]
   The catalyst for the plaintiff’s application has been the disclosure, by the defendant, of an undated report of a Ms Josephine Kreijzer,^[1] who, in that report, describes her qualifications as “(M Soc Work) (B Soc Sci)”, and which commences with the notation: “the following report was written after my Counselling session with [the defendant’s then 12 year old daughter] on Monday December 8^th, 2014”.  The report then proceeds to note a number of disclosures by the defendant’s daughter, as to past interactions that she had had with the plaintiff, in the context of his association with her family, before:

1. (a)
   Noting that:

“Her mum had contacted a school to inform them to be careful as [the plaintiff] was focusing his attention on one of their students.  Parents of the girl were contacted and they in turn spoke with [the plaintiff] and all the trouble began.”; and

2. (b)
   Then proceeding to record Ms Kreijzer’s assessment that the defendant’s daughter had “been adversely affected” by multiple inappropriate actions and attention of the plaintiff, before proceeding to elaborate as to how that impact had been manifested.

The Application

5. [5]
   The application filed by the plaintiff on 16 February 2016 is expressed to seek the following orders:

“1.Pursuant to r 211 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) the Defendant disclosed to the Plaintiff within three (3) days of the date of this Order, a copy of the following documents relating to the undated ‘Report’ of Josephine Kreijzer:

2. a)
   Josephine Kreijzer’s recording of her session with [the defendant’s daughter];

2. b)
   any written notes made by Josephine Kreijzer during her session with [the defendant’s daughter];

2. c)
   a copy of Josephine Kreijzer’s Curriculum Vitae; and

2. d)
   documents detailing any training or experience that Josephine Kreijzer has in questioning child witnesses.

2. That the Defendant pay the Plaintiff’s costs of, and incidental to, the application.

3. Such further Order or other orders as the Court considers appropriate.”

6. [6]
   At the hearing of this application on 26 February 2016, it was correctly pointed out for the defendant that whilst UCPR 211 states the duty of disclosure of the parties, the application must necessarily be taken to be one made pursuant to UCPR 223 and which allows for court orders relating to disclosure. For the respondent, it was not sought to take any point of formality and in the written outline of argument it was anticipated that a prospective alternative was another form of order or direction, as might conceivably be made under UCPR 367, requiring the respondent to take steps to obtain a relevant document and then disclose it.^[2] However it was contended that no such order was warranted and I will return to that issue subsequently. 

7. [7]
   For the applicant and in the first instance, an order was sought to enforce the duty of disclosure stated in UCPR 211, upon the basis that the documents sought, are:

“(a)directly relevant to an allegation in issue in the pleadings;

2. (b)
   under the control of the defendant.”^[3]

8. [8]
   Alternatively, the applicant sought an order pursuant to UCPR 223(4)(a):

“that the defendant disclose the documents sought, including, if necessary, seeking copies of those documents from Josephine Kreijzer under the defendant’s right to access that information, on the basis that there are special circumstances and the interests of justice require it.”

Discussion

9. [9]
   The duty of disclosure is stated in UCPR 211(1), in terms that:

“(1) A party to a proceeding has a duty to disclose to each other party each document—

1. (a)
   in the possession or under the control of the first party; and

2. (b)
   directly relevant to an allegation in issue in the pleadings; and

3. (c)
   if there are no pleadings—directly relevant to a matter in issue in the proceeding.”

10. [10]
    Further, the powers of the Court to order a party to disclose to another party a document or a class of documents, or an affidavit as to the non-existence of such documents, as provided in UCPR 223(1) and (2), are expressed to be limited by the considerations set out in UCPR 223(4):

“(4)An order mentioned in subrule (1) or (2) may be made only if—

1. (a)
   there are special circumstances and the interests of justice require it; or

2. (b)
   it appears there is an objective likelihood—

1. (i)
   the duty to disclose has not been complied with; or

2. (ii)
   a specified document or class of documents exists or existed and has passed out of the possession or control of a party.”

11. [11]
    Accordingly, it may be seen that the scope of the power of the Court to make orders about disclosure, under UCPR 223, is particularly referable to existing and directly relevant documents, within the possession or control of a party, or such documents that may have been within such possession or control, in the past. 

12. [12]
    A document is directly relevant to an allegation in issue in the pleadings, if it is or contains something, which tends to prove or disprove an allegation in issue.^[4] It may be that the document should be admissible in evidence, even if it is necessary to have other evidence to prove the admission of the document.^[5] However, UCPR 212(1) makes it clear that the duty of disclosure does not apply to documents of specified types, including:

“(a) a document in relation to which there is a valid claim to privilege from disclosure”; and

“(b) a document relevant only to credit.”

But an exception to the first exclusion is created by UCPR 212(2), in respect of an expert report, in that it is provided that:

“(2) a document consisting of a statement or report of an expert is not privileged from disclosure.”

13. [13]
    It is apparent that underlying this application was a perception on the part of the applicant, that Ms Kreijzer’s report has been disclosed as an expert’s report. However, any such perception only begged the question as to what allegation in issue, any opinion expressed by Ms Kreijzer may have been relevant and in the written submissions for the respondent, it was expressly disavowed that there was any reliance on Ms Kreijzer’s report as an expert report.^[6]  

14. [14]
    Rather, it was contended that the document was disclosed as it contains a record of the statements made by the defendant’s daughter to Ms Kreijzer (albeit about 9 months after the alleged defamatory publications) and therefore, effectively, in the nature of a witness statement of the defendant’s daughter. It was also indicated that any privilege that may have attached to the document, as such, must be taken as waived.

15. [15]
    However the obvious difficulty with these contentions, is that the document is not, in any primary sense at least, such a statement but rather an account by Ms Kreijzer of what the defendant’s daughter had said to her. As such and in the absence of a statutory exception, the recorded statements are hearsay, if evidence as to those statements were to be relied upon in a testimonial sense and to establish the truth of the statements. Neither was it suggested, nor is it clear, that the document may be relied upon pursuant to s 92 of the Evidence Act 1977 and if that was a purpose of the engagement of Ms Kreijzer by the defendant, then it is surprising that there is no recording of the child’s statements (particularly in an electronically recorded form), which might be admissible pursuant to s 92 or s 93A of that Act.^[7] Neither was it suggested that reliance on the document was intended pursuant to s 93A,^[8] and nor upon the notes made by Ms Kreijzer, as is clear from the absence of any apparent action by the defendant to secure them.

16. [16]
    This left the basis upon which this report was disclosed, in an uncertain and unsatisfactory state.

17. [17]
    No doubt Ms Kreijzer may have been assisted in the preparation of the report, by reference to the notes, which she acknowledges that she made during the counselling session and it is more evident that such notes, in particular, may have a potential forensic use, should it become necessary to prove that the defendant’s daughter made any particular statement or assertion to Ms Kreijzer, on 8 December 2014. That is because, whilst it remains unclear as to when the report was prepared, the notes might be regarded as being made contemporaneously, so as to enable reliance upon them in order to refresh Ms Kreijzer’s memory, in order to give such evidence.

18. [18]
    Conceivably, such an occurrence might arise if the plaintiff were to seek to prove a prior inconsistent statement, not distinctly admitted by the defendant’s daughter^[9] or if the defendant were entitled to and sought to prove a prior inconsistent statement of the witness, should she prove to be adverse,^[10] or if the defendant were entitled to and sought to prove a prior consistent statement by the witness, should recent fabrication of her evidence be suggested. Although the difficulty would remain that even the notes are not a direct recording of the daughter’s statements. 

19. [19]
    The issue as to whether such potential uses of the notes, or even possibly the report, goes beyond relevance to only credit, is complicated by the provisions of s 101 of the Evidence Act 1977.  However such considerations were not engaged on this application, because the defendant did not seek to resist the application, by contentions directed at the issue of direct relevance and as is made clear in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd:^[11]

“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 enquiry, which may have either of these two consequences’”.

Failure of compliance with the duty of disclosure?

20. [20]
    Rather and leaving aside the written notes made during the counselling session (which were expressly noted as having been made by Ms Kreijzer on 8 December 2014) and perhaps the request for a copy of Ms Kreijzer’s Curriculum Vitae (in respect of which it might be concluded there is an objective likelihood of some such document being in existence), the defendant makes the telling point that there is nothing to suggest that the other documents presently exist or have ever existed.  Secondly and in respect of all of the documents that are sought, the defendant convincingly contended that they are not demonstrated to be in the possession of the defendant (which was common ground) and neither demonstrated to be under the control of the defendant. 

21. [21]
    The common position that any such documents were not in the possession of the defendant, is consistent with an understanding that any such documents and particularly the written notes, were not shown to be in the actual possession, or physical control or custody of the defendant.^[12]  As was also common ground, it appears that the addition of the words “or under the control of the first party”, in UCPR 211(1)(a), is intended to extend the duty of disclosure to directly relevant documents that are under the control of a party, in a wider sense than actual possession or physical control or custody. 

22. [22]
    However, it was as to the breadth of that obligation that the contentions of the parties diverged. For the applicant it was contended that the documents sought are under the control of the defendant, in the sense that:

1. (a)
   as the defendant who arranged the session with Ms Kreijzer, “the defendant has the right to the provision of certain information arising from that session”, as demonstrated by the fact that the defendant has been supplied with the report; and

2. (b)
   “the defendant could, in the exercise of her rights, obtain the information and should do so because the report cannot be fully understood without the requested documents”.

23. [23]
    As has been noted, an underlying misconception appeared to be that the report was disclosed as an expert report. However, and quite separately, it may be observed that these generalised assertions do not demonstrate or demand any conclusion, for instance, that the written notes made by Ms Kreijzer on 8 December 2014, are under the control of the defendant. It simply does not follow that even if it were assumed that the report was produced and provided by Ms Kreijzer under a contractual obligation to the defendant, that the written notes made by Ms Kreijzer are otherwise then her property and not within the control of the defendant. Nothing was raised on this application to substantially advance the applicant’s relevant and broad assertions^[13] and the evidence on this application does not provide any basis, as a matter of objective likelihood or otherwise, for a different conclusion.^[14]

24. [24]
    As has been noted, in respect of an obligation to disclose documents in “possession, custody or power”, by Doyle CJ and Prior J in Taylor v Santos Ltd:^[15]

“…the obligation to discover hinges upon having a right or actual and immediate ability to examine the document.  A person does not have the right or actual immediate ability if the person is able to inspect the document only if a third person, who has control of the document, agrees to permit inspection.”

Accordingly, it has been held in Queensland that a party is not obliged to disclose documents which are in fact the property of the party’s agent.^[16]

25. [25]
    In Erskine v McDowall,^[17] Robertson DCJ was dealing with contentions in respect of the disclosure of documents that were amenable to an application by the respondent under the Freedom of Information Act 1982 (Cth) and after reference to the above mentioned passage in Taylor v Santos Ltd, his Honour further observed:

“[11]  Indeed, in Theodore v. Australian Postal Commission [1988] VR 272, Murphy J held by reference to the duty of disclosure under the Rules of the Victorian Supreme Court that the fact that a litigant has, under the Freedom of Information Act, a right of access to a document does not place that document within his power within the meaning of the discovery rules.  Certainly in Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 Lord Diplock at 635 held that a party had a document in his “power” only if he had a presently enforceable right to obtain inspection of the document from whoever held it, without the need to obtain the consent of anyone else.  However, I cannot agree that “power” and “control” are synonymous. “Control” is defined in the Macquarie Dictionary 2nd Edition relevantly as “to exercise direction over … command”.  I have concluded, somewhat hesitantly, that control is a more stringent requirement than power.  It is difficult to conclude that in the ordinary sense of the meaning of “control” the defendant here has an ability to “direct” or “command” the Commonwealth Agencies to provide her with copies of the documents.”

26. [26]
    Accordingly, it should be concluded that there does not appear to be any objective likelihood of lack of compliance with the duty of disclosure or that any document which exists or has existed, has passed out of the possession or control of the defendant, so as to warrant an order pursuant to UCPR 223(4)(b).

An alternative pursuant to UCPR 223(4)(a)?

27. [27]
    As has been noted, the applicant resorts to UCPR 223(4)(a), in the alternative.  The contention as to special circumstances and the requirement of the interests of justice is in the suggested unfairness and prejudice to the plaintiff in not being “able to fully test and confront the allegations made by the defendant in the publication”.  It should be noted that this alternative contention is also made upon the basis that “the defendant has the right to access the documents sought by the plaintiff”. Accordingly, a problem with this alternative contention is that the application is in part directed at documents which are not proven to exist or have existed and documents, if they do exist, which are not proven (on a basis of objective likelihood or otherwise) to be in the possession or within the control, of the defendant.

28. [28]
    I am not satisfied that it is appropriate to attempt to invoke UCPR 223(4)(a) in relation to documents that are not proven to exist or documents that are not, at least, objectively likely to be within the control of a party.  Without it being necessary to finally determine the issue, it would appear that orders in respect of disclosure are necessarily and fundamentally premised on the existence of and possession or control of documents.  In other words, it is one thing to order the disclosure of an existing document in the possession or control of a party, but another to order that steps be taken to seek a document from or request that another person prepare a document, so that it may then come into the possession or control of a party, so that a second step of disclosure to another party may occur.

29. [29]
    As demonstrated by the decision in Company Solutions (Aust) Pty Limited & Keppel Cairncross Shipyard Limited (in liq) & Ors,^[18] UCPR 223(4)(a) may be engaged in respect of documents that may not be strictly directly relevant to the pleadings and particularly where more expansive disclosure may be warranted by the overriding purpose expressed in UCPR 5 “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”. But that is not the critical issue in this case and in the circumstances, including the absence of any objective likelihood of possession or control of the documents by the respondent, it would be inappropriate for any order to be made under UCPR 223(4)(a).

Other alternatives in the power to give directions?

30. [30]
    However, and as was conceded on behalf of the respondent, such a conclusion may not necessarily be the end of the matter, as there may be power for the Court to give directions under UCPR 367, as to the defendants seeking documents from Ms  Kreijzer and so as to then trigger an obligation of disclosure to the plaintiff. 

31. [31]
    In my view, and in order to properly understand the decision in Erskine v McDowall,^[19]  it is necessary to note the express reference to UCPR 367, as a source of power for a direction that the defendant to an application for property adjustment as between “de facto spouses”, pursuant to s 287 of the Property Law Act 1974:

“… make the necessary application under the Freedom of Information Act to obtain copies of all forms signed by the defendant and lodged with Centrelink and/or the Department of Social Security during the period September 1997 to January 2000, and upon obtaining copies to disclose those parts of the documents containing any reference to the defendant’s domestic living arrangements and/or whether or not the defendant was cohabitating with another person in a de facto relationship during this period.”^[20]

It may be further noted that such a direction was given in circumstances where those documents were necessarily ones brought into existence by the defendant in the past, for the purpose of submission to the named agencies but where there were no retained copies and where the documents were seen as potentially bearing on a critical issue in the proceedings and going to the factual issue as to the period of any de facto relationship. Further this was in circumstances where the plaintiff had pleaded that in the period referred to “the defendant admitted and/or represented to Centrelink that she was not in a de facto relationship with the plaintiff over the period”^[21] and it was common ground that s 207 of the Social Security (Administration) Act 1999 prevented non-party disclosure in respect of the documents but that copies were available to the defendant under the Freedom of Information Act (Cth), by making a written application together with a fee.

32. [32]
    The respondent conceded such an approach as being open, by reference to various decisions in different Australian jurisdictions to exercise particular powers in each jurisdiction, to effect such an outcome, which may be just traced back to a decision in respect of the power of the Federal Court to do so, in Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co & Others.^[22]

33. [33]
    Assuming, as was conceded, that such an order might be made pursuant to UCPR 367, it is instructive to note the observations of Cavanough J, in Psalidis & Anor v Norwich Union Life Australia Ltd:^[23]

“[124] Nevertheless, it remains a matter for the discretion of the court whether the power to make a Sabre order should be exercised. In my opinion, no such order would be appropriate in this case, at least at this stage. In Sabre itself, and in most other cases where a Sabre order has been sought, there has been a real difficulty about using the ordinary processes of party-party discovery, third party discovery or subpoena to obtain the relevant information or documents. A typical example is where the documents are overseas and in the possession of some person or entity not readily amenable to the ordinary processes of the jurisdiction. There are no comparable difficulties in the present case.”

34. [34]
    A similar conclusion is warranted here. It is, for the reasons that have been set out, only the written notes made by Ms  Kreijzer, that could conceivably be amenable to such an order and there is no reason for concluding that they would not be amenable to processes that might be engaged by the applicant under the UCPR, at least subpoena or alternatively, non-party disclosure. Whilst for the applicant, the later procedure was contended to be costly and liable to be frustrated by the absence of a contact address on Ms Kreijzer’s report, there was no evidence of any difficulty in attempting to locate or contact her.

Conclusion

35. [35]
    However, and notwithstanding the primary misconceptions in the application as to disclosable documents, a result which simply dismissed that application would leave the unsatisfactory basis upon which Ms Kreijzer’s report was disclosed, largely unresolved. That may not be seen as within the philosophy of UCPR 5. Accordingly and in circumstances where the respondent conceded the potential application of UCPR 367, notwithstanding the absence of express written application in that regard, it may be noted that UCPR 367(3)(j) expressly empowers the Court to order the provision of “statements of witnesses the parties intend to call”.

36. [36]
    Particularly given the identification of the defendant’s daughter as an intended child witness and the provisions of the Evidence Act 1977 that may be engaged as to the way in which her evidence may be received and taken at trial, as well as eventually hearing the parties as to costs, I will also further hear the parties as to the potentiality of an order that by an appropriate time, the defendant provide to the plaintiff, all of the documents intended to be relied upon as containing relevant statements of the child.

Additional reasons for decision given on 18 March 2016

37. [37]
    These reasons, as set above, were provided to the parties, in draft form and in advance of the resumed hearing for the purpose of giving a decision, on 18 March 2016. After hearing the further submissions of the parties, as foreshadowed in paragraph [36] above, further reasons, to the following effect, were given for the orders that were then made.

38. [38]
    In respect of this matter (and on the defendant’s intimation that there is no intention to rely on any other document containing relevant statements of the child and there being no objection by the plaintiff), the outcome of the application will be that the Court makes a direction that the child, [*], give any evidence-in-chief in this proceeding by way of affidavit, to be filed within 60 days.

39. [39]
    The respondent seeks her costs of the application and in doing so, unsurprisingly and with a degree of appropriate force, points to the misconceptions in and the failure of the main thrust of the application, particularly in respect of the issue of disclosure by the respondent and also in respect of an alternative form of relief, properly conceded to be open, in the circumstances, by the respondent.

40. [40]
    However, what is sought is that the application be dismissed with costs. That is not the appropriate outcome and the respondent’s contention does not take account of the circumstances that:

1. (a)
   the application sought as alternative relief “such further or other orders as the Court considers appropriate”; and

2. (b)
   the outcome, albeit at the behest of the Court, is an order which places an obligation on the respondent and which has its genesis in the same event which precipitated the application in the first place, being what has been referred to as the somewhat curious disclosure of a report, by the respondent and then, as has been observed in the judgment, the somewhat unsatisfactory situation in which this was left, in the argument on the primary hearing.

In the circumstances, the most appropriate outcome is that the parties should bear their own costs and there will be no order as to costs.

*Denotes anonymisation pursuant to s 194 of the Child Protection Act 1999.