New South Wales Supreme Court CITATION : Redeemer Baptist School Limited v Glossop & Ors [2007] NSWSC 1187 HEARING DATE(S) : 22/10/07 JUDGMENT DATE : 24 October 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The relief sought by the defendants in relation to categories 21, 23 and 26 is refused. The defendants are to pay the costs of the Notice of Motion in respect of each of these three matters. The balance of the Notice of Motion is to be stood over to a date to be fixed before the Registrar. CATCHWORDS : Review - discovery - relevance to a fact in issue - threshold requirements and discretionary considerations - width of classes - oppressiveness LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) Redeemer Baptist School Limited (Pl) Graeme Francis Glossop (1st Def) PARTIES : David Ridley (2nd Def) Andrew Frost (3rd Def) Graham Merrick (4th Def) Parramatta Accountants and Tax Agents Pty Limited (5th Def) FILE NUMBER(S) : SC 20275/05 COUNSEL : Mr. A. Crossland (Pl) Ms. J. Thornton (1st, 3rd, 4th & 5th Def's) SOLICITORS : Carroll & O'Dea Lawyers (Pl) Champion Legal (1st, 3rd, 4th & 5th Def's) LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 20275/05 LOWER COURT JUDICIAL OFFICER : Registrar Bradford LOWER COURT DATE OF DECISION : 04/07/2007 - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 24 OCTOBER 2007 20275/05 Redeemer Baptist School Limited v Graeme Francis Glossop & Ors JUDGMENT 1 HIS HONOUR: The plaintiff has brought proceedings against a number of defendants. It conducts a school known as the Redeemer Baptist School (the school). A claim is made for damages founded on conspiracy, allegedly in or about November 2004. Generally speaking, it concerns the loss of students and the consequent loss of revenue and funding. 2 The plaintiff presently proceeds on a second Further Amended Statement of Claim. It is said that the defence puts in issue both the conspiracy and the suffering of damage. The parties are now in dispute on questions of discovery. 3 Discovery and inspection is now governed by Part 21 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 21.2 enables the making of an order for limited discovery, inter alia, within a class or classes specified in an order (as opposed to what happened under the earlier regime that allowed general discovery). An order may not be made in respect of a document unless the document is relevant to a fact in issue. When this threshold requirement is made out, the Court has a discretionary power to make the order. The onus rests with the party seeking relief. 4 In the present case no order has been made pursuant to r. 21.2. Consequently there has not been a list of documents prepared in accordance with r. 21.3 and no affidavit and certificate in accordance with r. 21.4. 5 By letter dated 13 December 2006, the defendants gave notice of categories of documents which they required for the purposes of discovery. The plaintiff has agreed to give discovery and inspection in respect of certain of those categories (including category 1). Category 1 concerns, inter alia, documents relevant to the withdrawal of students from the school. 6 On 31 January 2007, the plaintiff filed a Notice of Motion seeking the exclusion of certain of the categories. The application was heard by Registrar Bradford. He gave his decision on 4 July 2007. 7 Further applications have been brought by the parties. One was brought by the defendants under the guise of being a review from the decision of the Registrar (the Notice of Motion filed by it on 14 August 2007). In reality, only a small part of the relief sought involved a review. Largely, it involved a fresh application for the resolution of the disputes between the parties concerning discovery. 8 The proceedings came before the Court on 22 October 2007, purportedly for the hearing of a review. On that day, the parties were informed that the Court would deal with that part of the relief sought that related to the review only. The other matters for relief would have to be pursued before the Registrar in due course. 9 The review matters concerned three categories. The categories are as follows:- 1) Category 21, which concerns "all documents relating to recruitment of students or teachers for the school since 1 November 2004" 2) Category 23, which concerns "all files in relation to students" and 3) Category 26, which concerns "the plaintiff's school handbook and staff manual current for any time since 1 July 1997". 10 The Registrar has given written reasons for his decision. He found, in effect, that the defendants were not entitled to discovery and inspection of any of the documents contemplated by any of the three categories. 11 The written reasons contain the following [at pp14-15]:- "Category 21 related to material with respect to the recruitment of teachers or of students for the school since 1 November 2004. It was contended by the plaintiff that this was too broad and, in any event, was more than likely picked up in categories 1 and 9, the question of relevance also being raised. The defendant stated that it related to the qualification of the teachers and the performance and replacement of teachers which was a matter why people were taken out of the school. I believe that the category in question is very wide and raises a number of onerous issues upon the plaintiff, I also question its relevance bearing in mind the issues between the parties. … Category 23 is in respect of all files in relation to students. I do note, however, that with respect to the question of students there is a definition as to the students in question and does not deal with all of the students as such, however, the plaintiff states that this raises questions of relevance. There were various matters submitted on behalf of the defendant as to the relevance of the request for this material and to give consideration to question of loss. It is quite clear that there are a large amount of files that would have to be considered. The request, itself, is in the (sic) terms which are extremely wide and I note the matters stated by Mr Bailey concerning confidential material that may be contained within those files, in any event, it seems to be an onerous request and also I wonder as to its relevance with respect to the issues between the parties. As to 26 the plaintiff indicated this was collateral to litigation and not properly the subject of an order for discovery and queried its relationship with the pleadings. The defendant states that it went to trying to ascertain the students who left and also obtain material concerning the workings of the school. In any event I query its relevance and relationship to the pleadings in question and do not believe that it is a proper request for consideration and discovery." 12 The Court heard the submissions in relation to all three categories from the parties. The disputes involving categories 21 and 26 were dealt with on an ex-tempore basis. Judgment was reserved in relation to category 23. 13 In relation to category 21, the Court was not satisfied that the documents contemplated by that class were relevant to the facts in issue. The class was also expressed in the widest of terms and seemed to me to be oppressive. In the circumstances, I was not satisfied that the decision of the Registrar should be disturbed. 14 In relation to documents falling within the contemplation of category 26, a similar result was reached. 15 There was no evidence as to the existence of documents such as a school handbook and a staff manual. Nothing was said to justify why such documentation was required "since 1 July 1997" and it was not satisfactorily explained how the contents thereof could have relevance to facts in issue. In the circumstances, the Court was not satisfied that the content of any such document was relevant to a fact in issue. 16 There remains a consideration of category 23. The Burser of the school (Mr Bailey) gave evidence concerning this category. 17 A report (the Forsythe Report) has been prepared on behalf of the school as part of the process to quantify the alleged loss. An "Annexure A" thereto identifies the names of students who left the school. The category concerns the file for each of these students. On one estimate about 180 files may be involved. 18 The school has undergone the task of identifying and locating each of these files. They are presently available. Each file concerns the history of the individual student at the school. Generally speaking, very little of the material contained in any of the files will be relevant to the issues in this case. The relevant question is how they came to leave the school. 19 The Court has been told that Mr Bailey has examined the files and is nearing completion of the process of identifying the relevant material contained therein (which will satisfy what is contemplated by other categories, including category 1). The plaintiff has consented to give discovery in respect of such categories. The Court has been informed that it is in contemplation that an affidavit and certificate supporting its list of documents will be prepared in due course. 20 Rather than rely on what the plaintiff says is the relevant material contained in each file, the defendants want to undergo the not inconsiderable expense of having each file examined by their own lawyers. There seems to be no dispute that each file may contain confidential material. In the circumstances, the plaintiff is not prepared to accede to inspection by the defendants. 21 The onus rests with the defendants to demonstrate that each file contains relevant material other than that which the plaintiff is prepared to make available. In my view, the defendants have failed to discharge that task. Even if a different view was to be taken concerning the threshold requirement, I would still have not been satisfied that discretionary considerations would have led to discovery being given of those documents to the defendants. Therefore, I do not consider that the decision of the Registrar on this matter should be disturbed. 22 Accordingly, having reviewed the disputes concerning categories 21, 23 and 26, I am not satisfied that the decision of the Registrar on each of these three matters should be disturbed. Therefore, the relief sought by the defendants in relation to categories 21, 23 and 26 is refused. The defendants are to pay the costs of the Notice of Motion in respect of each of these three matters. The balance of the Notice of Motion is to be stood over to a date to be fixed before the Registrar. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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