RILEY v TOWER LIFE AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and POWELL JJA and FITZGERALD AJA 6 October 1998, 16 December 1998 [1998] NSWCA 185 DISCOVERY Supreme Court Rules Pt23 r3 — documents sought by appellant were the type of document which a defendant is entitled to keep confidential for use at trial — decision of primary judgment correct. Priestley JA I agree with Fitzgerald AJA. Powell JA I agree with Fitzgerald AJA. Fitzgerald AJA This is an appeal by leave from a refusal of an order that the respondent give the appellant discovery of the following classes of documents pursuant to Pt23 13 of the Rules of Court: "5. All investigators or loss assessors reports compiled in relation to the claim made by the [appellant] under the policy including all statements obtained from any witness and including any statement made by the [appellant]. 6. Any report of any surveillance carried out in relation to the [appellant] in any films or video tapes made following upon such surveillance." The order was sought in an action in the Common Law Division in which the appellant is suing the respondent for damages for breach of a disability insurance policy. It is common ground that the appellant was for a period "Totally Disabled" within the meaning of the policy and entitled to payment of "Total Disability Benefit", and, for a subsequent period, "Partially Disabled" within the meaning of the policy and entitled to "Partial Disability Benefit". According to the appellant, his "Total Disability" extended from ".... a date in late April 1992..." until "....a date in March or April 1993 known to the [respondent]", and his "Partial Disability" then commenced and is continuing. According to the respondent, it ".... became aware that the [appellant's] entitlement to total disability benefits ended on 29 March 1993" (which does not seem contentious), but the appellant only remained entitled to partial disability benefit... until 22 September 1994....". The respondent ceased payment of any benefit from that date. There is an ancillary dispute concerning the amounts of the "Total Disability" and "Partial Disability" benefits to which the appellant was entitled under the policy. The appellant gave the respondent a Notice to Produce various documents including those which are the subject of the present appeal, and, when the respondent did not comply, applied on Notice of Motion for an order for discovery of the documents. A Master dismissed the Notice of Motion on 8 October 1997. On 28 November 1997, a Judge of the Common Law Division dismissed an appeal by the appellant insofar as it related to the documents with which the present appeal is concerned. The material part of His Honour's reasons for judgment is as follows: "\... there may be documents in one or other of these classes, for instance, which would prove to be relevant in establishing the existence of absence of disability at a particular time, or which were otherwise relevant to the extent of 2 UNREPORTED JUDGMENTS disability. However, there is no evidence as to what documents exist such as might be attracted by the orders for discovery here sought. In my option the [appellant] is.... here seeking to embark upon a fishing expedition which the court in the exercise of its discretion under Pt23 r3 ought not to encourage. I conclude that the Master was correct in refusing to order discovery of these two classes of documents." Pt23 "Discovery and Inspection of Documents" has substantially changed the law on that subject. R1 defines various terms used in Pt23, and subr1(d) provides that "a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material which could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence." By subr2(1)(b) and subr(2), a party may by notice served on another party require the latter party to produce no more than fifty specific documents (other than privileged documents) which are "clearly identified in the notice, relevant to a fact in issue". In addition, under subr3(1)(a), the court may order a party to "give discovery" of "documents within a class or classes specified in the order......". Subject to subr3(2), subr3(3) provides that a class of documents may be specified: "(a) by relevance to one or more facts in issue; (b) by description of the nature of the documents and the period within which they were brought into existence; (c) in such other manner as the Court considers appropriate in the circumstances." By subr3(2), the class of documents must not be specified in more general terms than the court considers to be justified in the circumstances. If "an order for discovery under subr(1)" is made, subr3(4) and following provide how that order is to be complied with. Those extensive provisions proceed on the basis that there are "documents within [the] class or classes specified in the order".! The manifest object of Pt23 is to minimise unnecessary discovery and otherwise streamline the discovery process, rendering it more efficient and less expensive. Thus, r2 permits a party to bypass discovery and proceed directly to inspection of a limited number of specified relevant documents. R3 supplements 12 by providing for discovery and inspection of specific classes of documents, in lieu of, or addition to, the inspection of documents provided for in r2. Other than in exceptional circumstances, the previous law did not require a party obliged to give general discovery to make reference to documents that were not, and had not been, in his, or its possession or power, or to deny that documents were, or had been, in his, her or its possession or power,? and, ordinarily at least, r3 will likewise be concerned with specified classes of documents which the party seeking discovery can demonstrate, by direct evidence or inference, probably exist or existed. It is unnecessary to say more of that on this occasion, beyond noting that the appellant acknowledged that there is nothing to indicate that documents in all of the classes which are the subject of this appeal exist or existed, although he submitted "that it... would be reasonable to infer..." the existence of some such documents from the respondent's changed attitudes leading to a decision that even partial disability had ceased. 1. See Pt23, subr3(1)(a) 2. Cf Mulley v Manifold (1959) 103 CLR 341. URJ RILEY v TOWER LIFE AUSTRALIA LTD (Fitzgerald AJA) 3 Understandably, the respondent relied on the principles which govern an appellate Court's deference to a primary decision-maker's exercise of discretion. However, even if the primary judge's narrow basis for his decision required this Court to re-exercise the discretionary judgment which both parties accepted is called for by Pt23 r3, I am satisfied that his Honour's refusal of the order sought by the appellant was correct. Indeed, all or almost all of the potentially material factors seem to me to point towards that conclusion. It is important to emphasise that Pt23 13 is effectively confined by subr3(2) to what is "justified in the circumstances". Assuming in favour of the appellant that there are some relevant documents in one or more of the specific classes which he seeks in existence, the order sought would not be limited to those documents, which, in any event, are not of a type which a defendant ought ordinarily be required to disclose in litigation such as this in the interests of justice or to ensure a fair determination of the parties' dispute. On the contrary, the documents of which the appellant seeks discovery are the type of documents which a defendant is ordinarily entitled to keep confidential for legitimate forensic use at trial. The appellant is under no evidentiary disadvantage, but is possessed of all the information necessary to present his case on the issues to which the documents are said to be relevant. In these circumstances, I cannot perceive any sufficient reason to deny the respondent the benefit of what are effectively its witnesses' statements in order to improve the appellant's position in the litigation. At least in an action such as the present, the position has not been reached in which a defendant is required to provide the plaintiff with the totality of its case, pre-trial. At this time, such litigation continues to be conducted in this Court by the traditional adversarial process. The appellant has failed to persuade me that the primary judge's decision was erroneous. On the contrary, I am persuaded that it was correct. The appeal should be dismissed with costs. Appeal dismissed. Counsel for the appellant: S D Kalfas Solicitors for the appellant: P W Turk & Associates Counsel for the respondent: J S Gleeson Solicitors for the respondent: Nicholas G Pappas & Co