Mathias, Louise --- "Discovery: you want what ?" [2017] PrecedentAULA 57; (2017) 142 Precedent 26

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DISCOVERY: YOU WANT WHAT?

By Louise Mathias

All civil litigation practitioners seek information from the other side, or a third party, by way of a request for production of documents in a variety of ways. Those requests, whether informal or formal, are often met with varying degrees of opposition.

Practitioners in New South Wales (NSW) must rely on the provisions of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and the Civil Procedure Act 2005 (NSW) (CPA) when seeking production of documents in personal injury claims. Other jurisdictions will have similar legislation.

This article will discuss preliminary discovery pursuant to UCPR rr 5.2 and 5.3, and the production of redacted, subpoenaed documents pursuant to UCPR pt 33.

DISCOVERY

Generally, the court will not order general discovery in personal injury cases unless the court finds special reasons to order otherwise.^[1]

PRELIMINARY DISCOVERY

Roads and Traffic Authority of NSW v Care Park Pty Limited^[2] contains an important analysis of UCPR r 5.2 by the NSW Court of Appeal. There were several issues, including whether preliminary discovery is available only if an applicant establishes a threshold requirement that it has a ‘desire’ to commence proceedings, or whether ‘desire to commence proceedings’ is a discretionary consideration.^[3]

Basten JA held that the threshold requirement is that the applicant has the ‘purpose of commencing’ proceedings. Young JA in dissent found that ‘desire’ or ‘purpose’ is not required but is rather a discretionary factor, and that desire may be characterised as something less fixed and certain than an ‘intention’ or ‘purpose’ (Barrett, Beazley and Campbell JJA agreeing).

A more recent example of the operation of UCPR rr 5.2.and 5.3 is Brydon v Australian Rail Track Corporation Ltd^[4] (ARTC). In this case, the plaintiff was riding his motorcycle on an unsealed service road adjacent to a railway line in outback South Australia when it ‘struck a partially concealed concrete pylon’ or a buried obstruction. The plaintiff was thrown off his motorcycle and struck a metal stanchion which presumably inflicted a severe spinal injury.^[5]

The plaintiff filed a statement of claim against ARTC for the purpose of protecting the plaintiff’s action from being statute barred. However, the statement of claim was not served.

Two issues of relevance arose in this case:

1. Does a statement of claim filed but not served prevent the plaintiff from seeking preliminary discovery pursuant to UCPR r 5.2? Rule 5.2 contains threshold or jurisdictional barriers to engagement, which are discretionary:

(a) the applicant must be unable to ascertain the identity or whereabouts of the intended defendant despite having made ‘reasonable inquires’;^[6]

(b) the respondent or some other person^[7] may have information or may have had possession of a document or thing that tends to assist in ascertaining the identity of whereabouts of the prospective defendant.^[8]

(c) At the time of the application, the plaintiff has the purpose of commencing proceedings against the person in question.^[9] This is not a condition precedent to the exercise of the power, provided the application is brought for a proper purpose.^[10]

2. Can a plaintiff engage both UCPR rr 5.2 and 5.3 at the same time, with their respective distinct requirements?

As to the first issue, Campbell J raised the question of whether the proceedings had been regularly commenced and returned to a fundamental requirement in UCPR r 6.2:

’[A] person may commence proceedings in the court by filing a statement of claim or a summons ... The rules allow for an originating process to be validly served up to six months after it is filed.’^[11] (emphasis added)

His Honour went on to state that:

‘Proceedings were commenced “and regularly commenced”, against the defendant when the plaintiff filed the statement of claim, notwithstanding the step was taken expediently in circumstances of uncertainty, and service has not occurred.’^[12]

His Honour then described how this affected the plaintiff’s application pursuant to UCPR rr 5.2 and 5.3:

‘To the extent that the defendant is the person whom the plaintiff desires to bring proceedings against, or has been unable to obtain information to make a decision to bring proceedings relief is no longer available under rr 5.2 and 5.3. But the plaintiff is not denied relief under r 5.2, if its preconditions are otherwise satisfied, to the extent to which the person or persons who may be legally responsible for his injuries and whom he wishes to sue is a person, or are persons, other than ARTC ... potential defendants fall into more than one category, none of which need necessarily be filled by the defendant.’^[13]

Therefore, ARTC was ordered, pursuant to UCPR r 5.2, to provide discovery with verification of all documents identifying or tending to identify the persons responsible for or having ownership, occupation, management or control of the property where the plaintiff’s accident occurred. ARTC may have had information tending to identify who else may have been liable and therefore UCPR r 5.2 was enlivened, even though proceedings had already been commenced.

As to the second issue, Campbell J stated that ‘[t]he case law makes it clear that it is impermissible to blend the two rules’.^[14] His Honour described how rr 5.2 and 5.3 operate:

‘Rule 5.3 provides for preliminary discovery to be given to assist a party to determine whether to commence a proceeding on the basis that the applicant may have a right to obtain relief against an identified party. Conversely, r 5.2 is enlivened in circumstances where a cause of action has been identified but proceedings cannot be commenced until the identity of the defendant is ascertained. Rule 5.2 is correspondingly limited to discovery revealing identity as defined in r 5.1.

Rule 5.3 provides a wider scope for preliminary discovery, allowing an applicant to obtain documents which go to the question of whether it can obtain relief against an identified prospective defendant for the purpose of deciding whether or not to commence proceedings.’^[15] (citations omitted)

Each rule is enlivened by separate and distinct criteria. An applicant who has not identified a defendant cannot engage UCPR r 5.3 and an applicant who has not identified a cause of action cannot engage UCPR r 5.2.^[16]

Campbell J clarified the application of UCPR rr 5.2 and 5.3:

‘The plaintiff engages r 5.2 to ascertain the identity of the persons in occupation of the service road, responsible for the maintenance of it and who decommissioned, or demolished, the railway bridge. The defendant may not, as I have said, fill any of these categories. This is a legitimate use of r 5.2.

It follows that an attempt to seek discovery of documents pursuant to r 5.3 in relation to such persons whose identity is yet to be determined would be impermissible.

The plaintiff by his inquiries has obtained evidence that the defendant [ARTC] has operation and control of the active railway line (essentially this comes from information published on its website); it would have been entirely impermissible, therefore, for [the plaintiff] to seek discovery pursuant to r 5.3 (provided he satisfies the other requirements of the rule) in order to decide whether to commence proceedings against ARTC or not. The commencement of the proceedings deprives him of that opportunity. He may yet choose to seek discovery after service.’^[17] (emphasis added)

REDACTION OF PRODUCED DOCUMENTS

Can a party, even a third party, produce redacted documents for inspection in compliance with a subpoena, if the producer of the document believes that the redacted parts are irrelevant to the proceedings and/or tend to infringe interests of confidentiality for no legitimate purpose?

LG v Brian Brock as executor of the estate of the late Leo Clarke,^[18] involved a victim of institutional abuse case. The plaintiff issued a subpoena in June 2015 to the trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (the Diocese) (the second defendant) and Mr Salmon, the Executive Officer of the National Committee for Professional Standards of the Church (the third party) seeking production of documents as set out in the subpoena schedule.

In August 2015, the Diocese produced approximately 90 documents, which were heavily redacted. Mr Salmon also produced redacted documents to the Court at this time.

The plaintiff had been granted access to the redacted documents. However, the plaintiff pressed for production of full copies and a right to access them.

The Diocese and Mr Salmon produced unredacted copies to the Court in March 2016. The Diocese and Mr Salmon filed a notice of motion and then an amended notice of motion, seeking orders for restricted access to be made pursuant to the Courts Suppression and Non Publication Order Act 2010 (NSW). Mr Salmon sought an order pursuant to UCPR r 33.4 that he be permitted to redact the names of complainants in the documents produced, alleging that they were irrelevant to the proceedings and recorded in circumstances of confidence.

The Diocese and Mr Salmon cited authorities for the proposition that under a discovery order, a party may produce for inspection documents which are redacted, as they are irrelevant to the proceedings and tend to infringe interest of confidentiality for no legitimate purpose. Fagan J stated that:

’Production to the Court under subpoena is quite different from production of discoverable documents to the opposing party for inspection. Before a party who has issued a subpoena may see the documents produced in response to it, an order must be made under r 33.8 UCPR. It is at this point that limited inspection by way of redaction may be ordered, or not. A person or entity answering a subpoena will often not be a party to the proceedings and it would be a very unsatisfactory rule that such a third party should be at liberty to form views about what may or may not be relevant to the issues in the case and about the extent to which redactions might appropriately be made before producing documents to the Court.’^[19]

It may be an appropriate exercise of the court’s discretion, pursuant to UCRP r 33.8 to confine the plaintiff’s access to the produced documents to exclude passages which are irrelevant to the issues in the case and by which inspection would infringe interests of confidentiality of third parties for no legitimate purpose. These are considerations properly taken into account by the court when deciding the question of access. Section 126B of the Evidence Act 1995 (NSW), which considers ‘protected confidence’ or ‘protected identify information’, was not engaged as Mr Salmon was not ‘acting in a professional capacity’.

No application was made by the Diocese or Mr Salmon to set aside the subpoenas, addressed to them respectively, pursuant to UCPR r 33.4. However, both argued that there was an absence of legitimate forensic purpose as a basis upon which the plaintiff should be denied access to the produced unredacted documents.

Fagan J further stated at [28] that:

‘A party is entitled to see documents produced under subpoena which may support some facts relevant to his or her case ... A plaintiff is not to be denied access to documents just because they do not alone prove the whole of [the] case upon the point to which they relate.’

The Supreme Court of NSW relevantly ordered:

• the suppression of the plaintiff’s name and identity pursuant to s8(1) of the Court Suppression and Non Publication Orders Act 2010 (NSW); and

• that the plaintiff and her legal advisers may have access to all documents produced under subpoena to the Diocese and to Mr Salmon in an unredacted form.

The principles applicable to the redaction of documents were summarised by Dixon J in Octagon Inc. v Hewitt & Anor (No.2):^[20]

‘[T]he discovering party is prima facie required to produce for inspection the whole of the document being discovered by it, even where parts of the document are irrelevant. The practice of sealing up or masking irrelevant parts of the document is long established, particularly where the discovering party has a legitimate claim to confidentiality in the irrelevant part of the document. Ultimately, the onus to establish an appropriate basis for redaction rests with the party resisting production of the whole of the document. Where redactions are in dispute it is for the court to determine, on the material before it, whether that party has a right to do so. In making that determination, the court will focus on ensuring the attainment of justice between the parties.’^[21]

PRACTICE AND PROCEDURE

The Supreme Court of NSW Practice Note No. SC Gen 19 requires that a subpoena to produce or to give evidence and produce must include either a proposed access order for the documentation to be produced and the reasons for that order (that is, privilege, confidential information, irrelevant) or Default access orders. The NSW District Court, Practice Note DC (Civil) No. 8 has a similar requirement.

A party may make application to the court to have the subpoena set aside, pursuant to UCPR r 33.4 on the grounds of, inter alia:

(1) Abuse of process. That is, where a subpoena is:

(a) not served bona fide for the purpose of obtaining relevant evidence;

(b) not issued for the purpose of a pending trial, hearing or application;

(c) used as a substitute for discovery or to obtain information from a stranger to the litigation; or

(d) oppressive and burdensome.

(2) Confidential information.

(3) Fishing subpoena (one of the most common grounds). There is a requirement for reasonable particularity.

(4) Relevance; the documents sought are likely to inform the proper determination of the issues in the proceedings.^[22]

A subpoena requires the production of documents to the court, rather than to the parties to the proceedings.^[23] In the absence of an application to set aside the subpoena,^[24] there may be objections to inspection on the basis of:

• privilege;

• confidentiality;

• relevance or fairness.^[25]

A refusal to produce the documents to the court would not be justified.

UCPR rr 1.9(3)-(5) formally provide that a valid privilege claim may afford a sufficient basis for objecting to production, even to the court. However, it also provides that the court can compel production for the purpose of ruling on a privilege claim.

Therefore, once documents have been produced in answer to a subpoena, it is the court’s role to determine the appropriate orders in respect of when and in what circumstances the documents may be made available to the parties,^[26] including hearing objections to inspection of documents.

Where a third party produces documents in answer to a subpoena issued by one of the parties to the proceedings and does not oppose inspection, the other parties to the proceedings will ordinarily have a limited basis to object to their inspection.^[27]

PRACTICAL CONSIDERATIONS

To confirm that your practices and procedures comply with requirements, always refer to the UCPR, CPA and relevant court practice notes.

The overriding principles of practice should always be the ‘just, quick and cheap’ resolution of proceedings, pursuant to ss56-60 of the CPA. That should be reflective in how litigation practice is strategised and performed.

Louse Mathias is a barrister, mediator, family law professional – coach and family law arbitrator at Elizabeth Street Chambers in Sydney. Louise practises in medical negligence, family law, local court criminal and traffic offences and for victims of institutional abuse in a bespoke, authentic manner. Louise is a forward-thinking social media activist. PHONE [phone] EMAIL [e-mail] LINKEDIN www.linkedin.com/in/louisemathias WEB www.sydneybarrister.net.au TWITTER twitter.com/louise_mathias FACEBOOK www.facebook.com/sydneybarrister.net.au.

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^[1] Pursuant to UCPR rr 21.8 (discovery), 21.12 (notices to produce) and 22.1(3)(b) (interrogatories). For a discussion of special reasons in relation to UCPR r 22.1(3)(b), see Zhang v Popovic (No. 2) NSWSC 32, [18]-[22].

^[2] [2012] NSWCA 35.

^[3] Note that UCPR r 5.5 specifies that UCPR r 21.2(2) applies to preliminary discovery.

^[4] [2014] NSWSC 1560.

^[5] Ibid, [5].

^[6] UCPR r 5.2(1)(a).

^[7] UCPR r 5.2(1)(b).

^[8] Roads and Traffic Authority of NSW v Care Park Pty Limited [2012] NSWCA 35 at [107]- [018].

^[9] Ibid, [28].

^[10] Ibid, [109].

^[11] Brydon v Australian Rail Track Corporation Ltd [2014] NSWSC 1560, [14].

^[12] Ibid, [17].

^[13] Ibid, [18].

^[14] Ibid, [22], quoting ED Oates Pty Ltd v Edgar Edomonson Imports Pty Ltd [2012] FCA 607 at [19].

^[15] Ibid, [20]-[21].

^[16] Ibid, [22].

^[17] Ibid, [24]-[26].

^[18] [2016] NSWSC 323.

^[19] Ibid, [19].

^[20] [2011] VSC 373.

^[21] Ibid, [32].

^[22] LexisNexis, Ritchie's Uniform Civil Procedure NSW.

^[23] UCPR r 33.9.

^[24] UCPR r 33.4.

^[25] See UCPR r 21.5.

^[26] National Employers Mutual General Insurance Assn Ltd v Waind [1978] 1 NSWLR 372.

^[27] UCPR r 33.9.