IN THE SUPREME COURT

OF QUEENSLANDNo. 4786 of 1988

BETWEEN:PETER JOHN BAYLISS

Plaintiff

AND:ROBERT BERNARD CASSIDY

First Defendant

AND:NEVILLE JOHN HARPER

Second Defendant

AND:DESMOND GORDON STURGESS

Third Defendant

AND:STATE OF QUEENSLAND

Fourth Defendant

JUDGMENT - HELMAN J.

Judgment delivered 19 December 1997

There are two applications before me: one by the defendants for an order that the plaintiff make

further and better answers to a number of interrogatories delivered for his examination and other

orders, and the other application by the plaintiff for two orders relating to discovery of

documents, the details of which I shall give later. It was not disputed that Order 35 of the Rules

of the Supreme Court, as it was before 1 May 1994, applied to the applications.

The plaintiff began the action on 22 December 1988 against the first defendant and, upon

amendment of the writ of summons on 9 August 1989, the second, third and fourth defendants

were joined. At all material times the first defendant was a police officer, the second defendant

the Minister for Justice and Attorney-General, and the third defendant the Director of

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Prosecutions. The action arose out of the plaintiff's arrest on 20 May 1985 on a charge of

conspiring unlawfully to use force to procure the miscarriage of women. The charge was

dismissed on 4 July 1985 in the Holland Park Magistrates Court when the complainant offered

no evidence. The plaintiff claims damages for false imprisonment, malicious process, malicious

prosecution, and trespass to goods.

The current version of the statement of claim is a further amended statement of claim

delivered on 24 September 1993:

"1. (a) At all material times, the plaintiff has been a duly qualified andregistered medical practitioner, practising out of premises at 687Logan Road, Greenslopes and at 8 Ridge Street, Greenslopes,Brisbane;

(b) At all material times, the first defendant was a Detective SergeantFirst Class of the Queensland Police Force stationed at theCriminal Investigation Branch at Woolloongabba, Brisbane. Intaking the steps set out below, he acted in the performance, orpurported performance, of his duties as a member of the PoliceForce;

(c) The fourth defendant is sued pursuant to Section 9 of the CrownProceedings Act 1980;

(d) By reason of the provision of Section 69B of the Police Act 1937-1984, the fourth defendant is liable for damages, excludingpunitive damages, in respect of any tort committed by the firstdefendant in the performance of his duties as a member of thePolice Force;

(e) At all material times the third defendant was the Director ofProsecutions, appointed under the Director of Prosecutions Act1984, and acted in that capacity in respect of the matters pleadedherein;

(f) At all material times, the second defendant was the Minister forJustice and Attorney-General for the State of Queensland andacted in that capacity in respect of the matters pleaded herein;

(g) At all material times, the first defendant acted, in respect of thematters pleaded herein, either:-

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(i) Upon his own motion; or

(ii) Upon the instructions or on behalf of the third defendant;or

(iii) Upon the instructions and on behalf of the seconddefendant; or

(iv) Upon the joint instructions of the second and thirddefendants.

1A. (a) The conduct and the state of mind of the second defendant allegedby paragraphs 2A, 4A, 4AA and 8 hereof were the conduct andthe state of mind of the fourth defendant;

Particulars

At the time of the alleged conduct, the second defendant:

(i) was a Minister of the Crown of the State of Queensland;

(ii) was a member of the Executive Council of the State ofQueensland;

(iii) was the Minister for Justice and Attorney-General of theState of Queensland;

(iv) engaged in the alleged conduct in those capacities.

(b) alternatively to (a), the fourth defendant is vicariously liable forthe conduct of the second defendant alleged by paragraphs 2A,4A, 4AA and 8 hereof.

Particulars

At the time of the alleged conduct, the second defendant was anofficer in the employ of the State of Queensland engaged in thealleged conduct in that capacity.

1B. (a) The conduct and the state of mind of the third defendant, allegedby paragraphs 2A, 4A, 6A and 8 hereof were the conduct and thestate of mind of the fourth defendant;

Particulars

At the time of the alleged conduct, the third defendant was the Directorof Prosecutions of the State of Queensland and engaged in the alleged

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conduct in that capacity.

(b) alternatively to (a), the fourth defendant is vicariously liable forthe conduct of the third defendant alleged by paragraphs 2A, 4A,6A and 8 hereof.

Particulars

At the time of the alleged conduct, the third defendant was anofficer in the employ of the State of Queensland engaged in thealleged conduct in that capacity.

2. At or about 10.30 a.m. on 20 May 1985 at 687 Logan Road the firstdefendant in the course of his duties arrested the plaintiff on the followingcharge:-

‘That between 30 April 1983 and 21 May 1985 at Brisbane in theState of Queensland he conspired with persons unknownunlawfully to use force with intent to procure the miscarriage ofwomen.’

2A. That arrest was caused or effected maliciously and without reasonable andprobable cause, by the first, second and third defendants.

3. On 20 May 1985, following the arrest, the plaintiff was taken into custodyby the first defendant and imprisoned at Woolloongabba Police Stationand Holland Park Magistrates Court until about 2.30 p.m.

4. At or about 2.30 pm on 20 May 1985, and following that arrest andimprisonment, the first defendant instituted the prosecution of the plaintiffby bringing him before the Magistrates Court at Holland Park, constitutedby Mr Dettori S.M., and charging him upon the charge set forth inparagraph 2 hereof.

4AA. The institution of the prosecution of the plaintiff was caused or effectedmaliciously and without reasonable and probable cause by the first andsecond defendants.

4A. Thereafter, the first, second and third defendants maliciously and withoutreasonable cause continued to prosecute the above charge against theplaintiff. They caused the court to remand the plaintiff to 4 July 1985.

5. Over the objection of the first defendant, the court released the plaintiffon his own undertaking to come before the Magistrates Court, HollandPark at such time as was necessary for the hearing of the committalproceedings in respect of the charge which had been preferred againsthim.

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5A. The above arrest, imprisonment and prosecution were unlawful, in that thefirst defendant did not believe, on reasonable grounds, that the offencecharged had been committed.

6. On or about 4 July 1985 the charge was resolved in the plaintiff's favourwhen it was dismissed by Mr Muir S.M. at the Magistrates Court, HollandPark as the prosecution offered no evidence.

6A. After the institution of the prosecution of the plaintiff by the firstdefendant as pleaded in paragraph 4 hereof, the third defendant took overthe conduct of the proceedings against the plaintiff, and prosecuted himmaliciously and without reasonable and probable cause.

6B. Further: the first defendant obtained search warrants dated 14 May 1985,pursuant to Section 679 of the Criminal Code, purporting to authorisesearches of the premises of the plaintiff at 687 Logan Road and at 8 RidgeStreet.

6C. Pursuant to those warrants, the first defendant caused to be seized patientrecords, surgical instruments and equipment on 20 May 1985, from both687 Logan Road and 8 Ridge Street.

6D. The plaintiff was entitled to possession of those records, surgicalinstruments and equipment.

6E. The first defendant obtained the warrant maliciously, and withoutreasonable and probable cause.

6F. The first defendant failed to take the things seized forthwith before ajustice.

6G. On 25 June 1985, the Full Court of Queensland held that the warrant wasunlawful in so far as it related to the seizure of the documents, andordered their return.

7. By reason of the matters aforesaid, the plaintiff was wrongfullyimprisoned and deprived of his liberty, and he was greatly injured in hiscredit, character, personal and professional reputation. He sufferedsignificant and considerable mental pain and anguish, as an eminentmedical practitioner in the area of fertility control, and he has been put toconsiderable trouble, inconvenience, anxiety and expense. He has therebysuffered loss and damage, excluding loss of income. The plaintiff hassuffered special damages, full particulars of which will be supplied priorto trial.

8. The plaintiff, in addition to the matters previously alleged herein, further

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claims exemplary damages by reason of the malicious conduct of the first,second and third defendants as set out herein.

Particulars

(a) The first, second and third defendants well knew that the plaintiffhad first a satisfactory explanation of his medical practise,including the fact that at all times he had carried out only lawfulterminations of pregnancy;

(b) The first, second and third defendants failed to investigate andseek professional advice as to the nature of the medicalprocedures carried out by the plaintiff;

(c) By reason of the matters aforesaid, doing such things (or,alternatively, omitting to do necessary things) so as to bring thesystem of criminal justice within the State of Queensland intoodium and contempt;

(d) Conducting a raid upon the plaintiff's clinic during business hoursin the presence of patients and amid publicity which the first,second and third defendants by themselves, their servants oragents arranged;

(e) Wrongfully taking patient records in an indiscriminate manner andwithout regard to their relevance to the alleged offence;

(f) Failing to bring the seized goods forthwith before a justice.

AND the plaintiff claims:-

(i) Damages for false imprisonment, malicious process,malicious prosecution and trespass to goods;

(ii) Exemplary damages;

(iii) Costs."

The version of the defence accepted by all parties as a basis for argument on the hearing

of these applications was a further amended defence of the first defendant and amended defence

of the remaining defendants, delivered on 16 March 1995 (It has been amended since, but not in

a way material to the applications.):

"1. The defendants admit the allegations contained in paragraphs 1(a), 1(c),

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6, 6B and 6G of the Statement of Claim.2. In respect of the allegations contained in paragraphs 1(b), 1(d) and 1(g)of the Statement of Claim the defendants

(a) admit that at all material times the first defendant was a DetectiveSergeant First Class of the Queensland Police Force stationed atthe Criminal Investigation Branch at Woolloongabba, Brisbaneand was acting in the performance of his duties as a member ofthe Police Force;

(b) admit the provisions contained in s. 69B of the Police Act 1937-1988;

(c) otherwise deny the allegations in paragraph 1(b), 1(d) and 1(g) ofthe Statement of Claim.

3. In respect of the allegations contained in paragraphs 1(e) and 1B of theStatement of Claim the defendants:

(a) admit that at all material times from 17 December 1984, the thirddefendant was the Director of Prosecutions, appointed under theDirector of Prosecutions Act 1984 and was acting in that capacity;

(b) otherwise deny the allegations in paragraphs 1(e) and 1B of theStatement of Claim.

4. In respect of the allegations contained in paragraphs 1(f) and 1A of theStatement of Claim the defendants:

(a) admit that at all material times from 19 August 1983, the seconddefendant was the Minister for Justice and Attorney-General andas such a Minister for the Crown of the Fourth Defendant and wasacting in that capacity;

(b) admit that at all material times from 19 August 1983, the seconddefendant was a member of the Executive Council of the fourthdefendant;

(c) otherwise deny the allegations in paragraph 1(f) and 1A of theStatement of Claim.

5. In respect of the allegations contained in paragraph 2 of the Statement ofClaim the defendants:-

(a) admit that at or about 11.15 a.m. on 20th May, 1985 the firstdefendant effected the arrest of the plaintiff on the charge:-

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‘That between 30th April 1981 and 21st May, 1985 at Brisbane inthe State of Queensland he conspired with persons unknownunlawfully to use force with intent to procure the miscarriage ofwomen.’

(b) say that, before the said arrest, the First Defendant with reasonablecause suspected that the crime hereinbefore referred to had beencommitted and with reasonable cause he suspected that theplaintiff had committed the said crime; and

(c) say that, in the premises, the said arrest of the plaintiff by the FirstDefendant was lawful, proper and justifiable;

(d) otherwise deny the facts alleged therein.

6. In respect of the allegations contained in paragraph 3 of the Statement ofClaim the Defendants:-

(a) admit that on the 20th May 1985, following the arrest, the plaintiffwas taken into custody by the First Defendant;

(b) otherwise deny the allegations contained therein.

7. In respect of the allegations contained in paragraph 4 of the Statement ofClaim the defendants:-

(a) admit that at or about 2.15 p.m. on 20th May, 1985 following thearrest of the plaintiff, the plaintiff appeared before the MagistratesCourt at Holland Park constituted by Mr Dettori S.M. and wasremanded to appear before the said Court on the Fourth day ofJuly 1985;

(b) otherwise deny the allegations of fact contained therein.

8. In respect of the allegations contained in paragraph 5 of the Statement ofClaim the defendants:

(a) admit the said Court remanded the plaintiff on his ownundertaking to appear at the said Court on the Fourth day of July1985 for mention;

(b) otherwise deny the allegations of fact alleged in paragraph 5 of theStatement of Claim.

9. In respect of the allegations contained in paragraph 6A of the Statementof Claim the defendants:-

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(a) admit that following the arrest of the plaintiff referred to inparagraph 5(a) herein the third defendant took over the conduct ofthe proceedings against the plaintiff;

(b) otherwise deny the facts alleged therein.

10. The defendants deny the allegations contained in paragraphs 2A, 4AA,4A, 5A, 6C, 6D, 6E, 6F, 7 and 8 of the Statement of Claim.

11. Pursuant to the provisions of s. 25 of the Director of Prosecutions Act1984 these proceedings are not maintainable against the defendants.

12. Save as aforesaid the defendants deny each and every allegation containedin the Statement of Claim."

The defendants sought orders that the plaintiff make further and better answers to

interrogatories which were listed in a schedule to their summons. The interrogatories were

delivered for the plaintiff’s examination on 16 March 1995 and answered by his affidavit

affirmed on 28 October 1995. In addition, the defendants applied for an order that answers to

four interrogatories (nos. 74(d), 77(b), 77(c), and 77(d)) be taken off the Court file on the ground

that they contained scandalous matter, but that application was abandoned at the hearing. The

defendants also applied for an order, in the alternative to one requiring the plaintiff to make

further and better answers to twelve interrogatories in their schedule (nos. 78 to 89 inclusive),

that the plaintiff provide further and better particulars of his further amended statement of claim.

The defendants delivered a very large number of interrogatories, covering 246 pages in

all. The answers covered 203 pages. No objection based on the number of the interrogatories

was taken. In argument on the application the interrogatories were divided into twenty-three

categories. There was, however, some overlapping in that some of the interrogatories appeared

in more than one category.

I shall now deal with each of the categories.

In the first four categories were interrogatories to which no objection was taken but the

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defendants asserted that the answers given were inadequate.

The plaintiff answered the interrogatories in the first and second categories by saying in

various ways that he had no knowledge of the matter about which he had been asked or did not

recall it. The answers did not show that enquiries had been made, and did not purport to be

answered from knowledge, information and belief. The only interrogatory in the first category

was no. 1(i), and the interrogatories in the second category were nos. 1(g), 1(h), 1(j), 1(k), 1(l),

4(a), 5(a), 8(a)(vi), 8(c)(i), 10(e), 10(f), 10(g), 11(a), 11(b), 11(c), 11(d), 11(e), 11(f), 11(g),

11(h), 11(i), 11(j), 11(k), 11(l), 11(m), 11(n), 11(o), 11(p), 12(a), 13(a), 13(b), 13(c)(i), 13(d),

13(e), 13(f)(i), 14(a), 14(b), 15(b), 16(a), 16(c), 17(b), 17(c), 17(e), 17(h), 17(j), 17(k), 18(a),

19(a), 19(e), 19(h), 19(i), 19(l), 20(b)(iii)A, 22(a), 22(b)(i), 22(b)(ii), 22(b)(iii), 22(b)(iv),

22(b)(v), 22(b)(vi), 22(b)(vii), 22(b)(viii), 22(b)(ix), 22(b)(x), 22(b)(xi), 22(b)(xii), 22(b)(xiii),

22(b)(xiv), 22(b)(xv), 22(b)(xvi), 22(b)(xvii), 22(b)(xviii), 24(g), 24(n), 24(o), 26(a), 26(f)(ii),

27(a), 28(a), 28(b), 28(e), 28(g), 28(i), 28(k), 28(m), 28(o), 31(e), 31(f), 33(a), 33(b), 35(c), 35(f),

35(g), 35(l), 35(p), 35(t), 35(bb)(i)A, 35(bb)(i)B, 35(bb)(iii)A, 35(bb)(iii)B, 35(bb)(v)A,

35(bb)(v)B, 35(bb)(vii)A, 35(bb)(vii)B, 35(bb)(ix)A, 35(bb)(ix)B, 36(c), 36(f), 36(g), 36(l),

36(p), 36(t), 36(z)(i)A, 36(z)(i)B, 36(z)(iii)A, 36(z)(iii)B, 36(z)(v)A, 36(z)(v)B, 36(z)(vii)A,

36(z)(vii)B, 36(z)(ix)A, 36(z)(ix)B, 37(c), 37(e), 37(f), 37(k), 37(o), 37(s), 37(y)(i)A, 37(y)(i)B,

37(y)(iii)A, 37(y)(iii)B, 37(y)(v)A, 37(y)(v)B, 37(y)(vii)A, 37(y)(vii)B, 37(y)(ix)A, 37(y)(ix)B,

38(c), 38(e), 38(f), 38(k), 38(o), 38(s), 38(aa)(i)A, 38(aa)(i)B, 38(aa)(iii)A, 38(aa)(iii)B,

38(aa)(v)A, 38(aa)(v)B, 38(aa)(vii)A, 38(aa)(vii)B, 38(aa)(ix)A, 38(aa)(ix)B, 39(c), 39(f), 39(g),

39(l), 39(p), 39(t), 39(bb)(i)A, 39(bb)(i)B, 39(bb)(iii)A, 39(bb)(iii)B, 39(bb)(v)A, 39(bb)(v)B,

39(bb)(vii)A, 39(bb)(vii)B, 39(bb)(ix)A, 39(bb)(ix)B, 40(c), 40(f), 40(g), 40(l), 40(p), 40(r),

41(a), 41(c), 41(d), 41(i), 41(m), 41(o), 41(p), 42(a), 42(d), 42(e), 42(j), 42(n), 42(p), 42(q),

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43(c), 43(e), 43(f), 43(k), 43(o), 43(q), 44(c), 44(e),44(f), 44(k), 44(o), 44(q), 44(r), 44(s),

44(aa)(i)A, 44(aa)(i)B, 44(aa)(iii)A, 44(aa)(iii)B, 44(aa)(v)A, 44(aa)(v)B, 44(aa)(vii)A,

44(aa)(vii)B, 44(aa)(ix)A, 44(aa)(ix)B, 45(c), 45(f), 45(g), 45(l), 45(p), 46(a), 46(c), 46(d), 46(i),

46(m), 47(d), 47(e), 47(j), 47(n), 48(e), 48(g), 48(h), 48(m), 48(q), 49(f), 49(h), 49(i), 49(n),

49(r), 49(v), 49(bb)(i)A, 49(bb)(i)B, 49(bb)(iii)A, 49(bb)(iii)B, 49(bb)(v)A, 49(bb)(v)B,

49(bb)(vii)A, 49(bb)(vii)B, 49(bb)(ix)A, 49(bb)(ix)B, 50(c), 50(e), 50(f), 50(k), 50(o), 50(s),

50(bb), 50(cc), 50(dd)(i)A, 50(dd)(i)B, 50(dd)(iii)A, 50(dd)(iii)B, 50(dd)(v)A, 50(dd)(v)B,

50(dd)(vii)A, 50(dd)(vii)B, 50(dd)(ix)A, 50(dd)(ix)B, 51(d), 51(f), 51(g), 51(l), 51(p), 51(r),

52(c), 52(e), 52(f), 52(k), 52(o), 52(q), 53(a), 53(d), 64(e), 67(a), 67(b), 67(c), 67(d), 68(b),

68(c), 69, 71(c), 73(a), 76(a), and 76(b).

A party interrogated must answer to the best of his knowledge, information and belief

unless he objects to answer: Lyell v. Kennedy (no. 2) (1883) 9 App.Cas. 81 at p.85; Adams v.

Dickeson [1974] V.R. 77 at p.83; and Sharpe v. Smail (1975) 5 A.L.R. 377. As Gibbs J. said in

the last-mentioned case:

“It is not enough to say that he has no knowledge, because he is bound also to

answer according to information acquired from servants or agents who have

gained it in that capacity, and, where appropriate, his answer must show that he

has made all proper inquiries and that having made them he has no information

enabling him to answer further: cf Bank of Russian Trade Ltd v. British Screen

Productions Ltd [1930] 2 K.B. 90; Ormond v. Gunnersen [1920] V.L.R. 402.”

(p.379)

A party interrogated is obliged to make all reasonable enquiries not only from those who

are his servant or agents at the time of the interrogation but also from those who were his servants

or agents at the material time: National Trustees, & c., Co. of Australasia Ltd v. Christian [1933]

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A.L.R. 111; Derham v. AMEV Life Insurance Co Ltd (1978) 20 A.C.T.R. 23; Stanfield Properties

v. National Westminster Bank [1983] 1 W.L.R. 568; Spedley Securities Ltd (in liq.) & Anor v.

Bank of New Zealand & Ors (no. 2) (1991)10 A.C.L.C. 77; The Corporation of the Trustees of

the Roman Catholic Archdiocese of Brisbane v. Discovery Bay Developments Pty Ltd [1995] 2

Qd.R. 121; Bayliss v. Cassidy & Ors (Appeal no. 96 of 1993, unreported, 6 December 1993).

Dicta to the effect that a party interrogated cannot be required to make enquiries of former

servants or agents in Bolckow v. Fisher (1882) 10 Q.B.D. 161 at p.169 per Brett L.J. and of

Hoare J. in Everingham v. Commonwealth [1973] Qd.R. 185 at p.192 must now be regarded as

at odds with the weight of authority: The Corporation etc v. Discovery Bay Developments Pty

Ltd at pp.126 -127. The test is one of reasonableness and not whether or not the employment had

been terminated, as Sir Robert Megarry V.-C. said in Stanfield Properties v. National

Westminster Bank at p.570.

In the absence of any objection, a party interrogated must give an answer to those parts

of an interrogatory he is able to answer from knowledge, information and belief and state as to

the remainder that he has no personal knowledge or belief: Adams v. Dickeson , p.82.

A party interrogated cannot refuse to answer an interrogatory on the ground that he has

no personal knowledge and the only information he can get is from his solicitor if the subject of

the interrogatory is not a privileged communication: Foakes v. Webb (1884) 28 Ch. D. 287.

The plaintiff sought to meet the defendants’ application in relation to the first two

categories in two ways. First, reliance was placed upon evidence of the plaintiff by way of

affidavit. That evidence revealed in a general way enquires that the plaintiff had made of Ms

Claudia McEwen, described as “an employee at the clinic throughout the relevant period” and

of Dr Dawn Cullen, a colleague. In addition, the plaintiff referred to other possible lines of

enquiry but dismissed them: Dr Bruce Errey with whom the plaintiff had had a dispute, other

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staff at the clinic whose whereabouts were he said unknown to him, and journalists not

“personally known” to him. He also referred to the absence of patient and other records. The

affidavit evidence of the plaintiff was expressed in general terms and was not directed to any

particular interrogatory. The second way in which the plaintiff sought to oppose the defendants’

application was by urging me to conclude that objections not taken in the orthodox way by the

plaintiff could now be relied upon by him to show that I should exercise my discretion to refuse

the defendants the relief they seek.

In my view neither suggested answer to the defendants’ application is sufficient in this

case. The defendants are entitled to know with reasonable precision what enquiries the plaintiff

has made in relation to each interrogatory. The generalities relied on by the plaintiff are not

enough. There is authority for the proposition that a party interrogated who does not object to

answering but gives an inadequate answer waives any right to object later: Adams v. Dickeson,

p.83. Mr McMurdo Q.C., for the defendants, did not seek to take his submissions as far as to

suggest that by failing to object the plaintiff had made a binding election, but nonetheless urged

me to conclude that the plaintiff should be required to follow the usual practice. In my view that

submission is correct, and any objection to answering an interrogatory should, in the absence of

special circumstances, be taken in the orthodox way. I see no special circumstances in this case

and therefore no reason to permit a departure from the usual practice. At all events the objection

chiefly relied on was oppression arising from the alleged futility of further enquiry. As I have

said, that issue must be raised with precision in relation to each interrogatory.

I shall therefore order that the plaintiff make further and better answers to the

interrogatories in the first and second categories, with the exception of interrogatory no. 47(v)

in the second category, to which I shall refer again when I come to the fifteenth category.

The plaintiff did not answer the interrogatories in the third category in view of his

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answers to those in the second. The interrogatories in the third category were nos. 4(b), 4(c),

4(d), 4(e), 8(c)(ii), 10(h), 13(g), 14(c), 16(d), 16(e), 16(f), 16(g), 16(h), 16(i), 17(d), 17(f), 17(g),

17(i), 17(l), 17(m), 18(b), 18(c), 18(d), 19(k), 19(m), 19(n), 20(b)(iii)B, 22(c), 24(p), 24(q),

26(f)(iii), 28(f), 28(h), 28(j), 28(l), 28(n), 28(p), 31(g), 31(h), 31(i), 31(j), 35(d), 35(e), 35(h),

35(i), 35(j), 35(k), 35(m), 35(n), 35(o), 35(q), 35(u), 35(v), 35(bb)(ii)A, 35(bb)(ii)B, 35(bb)(iv)A,

35(bb)(iv)B, 35(bb)(vi)A, 35(bb)(vi)B, 35(bb)(viii)A, 35(bb)(viii)B, 35(bb)(x)A, 35(bb)(x)B,

36(d), 36(h), 36(i), 36(j), 36(k), 36(m), 36(n), 36(o), 36(q), 36(u), 36(v), 36(z)(ii)A, 36(z)(ii)B,

36(z)(iv)A, 36(z)(iv)B, 36(z)(vi)A, 36(z)(vi)B, 36(z)(viii)A, 36(z)(viii)B, 36(z)(x)A, 36(z)(x)B,

37(d), 37(g), 37(h), 37(i), 37(j), 37(l), 37(m), 37(n), 37(p), 37(t), 37(u), 37(y)(ii)A, 37(y)(ii)B,

37(y)(iv)A, 37(y)(iv)B, 37(y)(vi)A, 37(y)(vi)B, 37(y)(viii)A, 37(y)(viii)B, 37(y)(x)A, 37(y)(x)B,

38(d), 38(g), 38(h), 38(i), 38(j), 38(l), 38(m), 38(n), 38(p), 38(t), 38(u), 38(aa)(ii)A, 38(aa)(ii)B,

38(aa)(iv)A, 38(aa)(iv)B, 38(aa)(vi)A, 38(aa)(vi)B, 38(aa)(viii)A, 38(aa)(viii)B, 38(aa)(x)A,

38(aa)(x)B, 39(d), 39(h), 39(i), 39(j), 39(k), 39(m), 39(n), 39(o), 39(q), 39(u), 39(v), 39(bb)(ii)A,

39(bb)(ii)B, 39(bb)(iv)A, 39(bb)(iv)B, 39 (bb)(vi)A, 39(bb)(vi)B, 39(bb)(viii)A, 39(bb)(viii)B,

39(bb)(x)A, 39(bb)(x)B, 40(d), 40(h), 40(i), 40(j), 40(k), 40(m), 40(n), 40(o), 40(q), 40(s), 40(t),

40(u), 40(v), 40(y), 41(b), 41(e), 42(f), 41(g), 41(h), 41(j), 41(k), 41(l), 41(n), 41(q), 41(r), 41(s),

41(v), 42(b), 42(c), 42(f), 42(g), 42(h), 42(i), 42(k), 42(l), 42(m), 42(o), 42(r), 42(s), 42(t), 42(w),

43(d), 43(g), 43(h), 43(i), 43(j), 43(l), 43(m), 43(n), 43(p), 43(r), 43(s), 43(t), 43(u), 43(y), 44(d),

44(g), 44(h), 44(i), 44(j), 44(l), 44(m), 44(n), 44(p), 44(t), 44(u), 44(aa)(ii)A, 44(aa)(ii)B,

44(aa)(iv)A, 44(aa)(iv)B, 44(aa)(vi)A, 44(aa)(vi)B, 44(aa)(viii)A, 44(aa)(viii)B, 44(aa)(x)A,

44(aa)(x)B, 45(d), 45(h), 45(i), 45(j), 45(k), 45(m), 45(n), 45(o), 45(q), 46(b),46(e), 46(f), 46(g),

46(h), 46(j), 46(k), 46(l), 46(n), 47(f), 47(g), 47(h), 47(i), 47(k), 47(l), 47(m), 47(o), 48(f), 48(i),

48(j), 48(k), 48(l), 48(n), 48(o), 48(p), 48(r), 49(g), 49(j), 49(k), 49(l), 49(m), 49(o), 49(p), 49(q),

49(s), 49(w), 49(x), 49(bb)(ii)A, 49(bb)(ii)B, 49(bb)(iv)A, 49(bb)(iv)B, 49(bb)(vi)A,

15

49(bb)(vi)B, 49(bb)(viii)A, 49(bb)(viii)B, 49(bb)(x)A, 49(bb)(x)B, 50(d), 50(g), 50(h), 50(i),

50(j), 50(l), 50(m), 50(n), 50(p), 50(t), 50(u), 50(dd)(ii)A, 50(dd)(ii)B, 50(dd)(iv)A, 50(dd)(iv)B,

50(dd)(vi)A, 50(dd)(vi)B, 50(dd)(viii)A, 50(dd)(viii)B, 50(dd)(x)A, 50(dd)(x)B, 51(e), 51(h),

51(i), 51(j), 51(k), 51(m), 51(n), 51(o), 51(q), 51(v), 52(d), 52(g), 52(h), 52(i), 52(j), 52(l),

52(m), 52(n), 52(p), 52(r), 52(s), 52(t), 52(u), 52(x), 53(b), 64(f), 73(c), and 76(c).

It follows from the order I intend making in relation to the interrogatories in the second

category that I should make an order that the plaintiff make further and better answers to those

in the third category - with the exception of no. 35(e), which was also in the tenth category and

was abandoned by the defendants at the hearing.

The following interrogatories in the fourth category were abandoned at the hearing: nos.

7(a), 7(e), 9(b)(ii), 16(b), 19(f), 19(g), 26(d), 26(e), 31(d), 65(a), 65(b), 65(c), 65(e), 65(f), 65(h),

65(i), 65(j), 65(k), 65(l), 65(m), 65(n), 65(o), 65(q), 65(s), 65(t), 65(u), 65(w), 65(x), 65(y),

65(z), 65(bb), 65(ff), 65(gg), 65(hh), 65(ii), 65(jj), 71(a), and 71(b). The remaining

interrogatories in the fourth category were nos. 30(a), 31(c), 57(a), 58(a), 59(a), 60(a), and 61(a).

The complaint in each case was that the answer was not a sufficient one. The answer to no.

30(a) was in my view insufficient because although the plaintiff admitted that the conversation

referred to in the interrogatory took place he made no reference to any words he said in the course

of it. The plaintiff failed to answer the question in no 31.(c) directly, but I think his answer was

sufficient. Nos. 57(a), 58(a), 59(a), 60(a), and 61(a) were directed to what the plaintiff believed

about certain matters. Each has been answered by saying what the plaintiff would have believed,

not whether he did or did not believe such-and-such to be so. Each answer is therefore

inadequate in my view. I should add that although interrogatory no.55 is referred to inter alia

in each of those interrogatories the plaintiff has answered by reference to no. 54. As will appear

when I deal with the eleventh category, I do not think that a further answer to no.55 should be

16

required, but it appears from the plaintiff’s answers already given that no.55 is not relevant to his

answers to nos. 57(a), 58(a), 59(a), 60(a), and 61(a). I shall therefore order that the plaintiff

make further and better answers to the interrogatories in the fourth category with the exception

of those abandoned at the hearing and no.31(c).

The following interrogatories in the fifth category were abandoned at the hearing: nos.

7(d), 9(c), 20(a)(v), and 46(w)(iv). The remaining interrogatories in that category were nos.

40(w), 41(t), 42(u), 43(v), 44(v), 45(w), 46(t), 47(u), 49(y), and 50(v). Each asked whether a

specified patient’s gynaecological and obstetric history was “normal”. Each was objected to as

vague and irrelevant. In my view the first objection has merit: the word “normal” is too uncertain

and for that reason the interrogatories were oppressive. I therefore uphold the objections to them.

In the sixth category interrogatories nos. 7(e) and 20(a)(vi) were abandoned at the

hearing. No. 7(e) had been abandoned in the fourth category, as I have related. The remaining

interrogatories in the sixth category were nos. 40(x), 41(u), 42(v), 43(w), and 44(w). They fail

as a consequence of my ruling adverse to the defendants on nos. 40(w), 41(t), 42(u), 43(v), and

44(v) respectively in the fifth category.

The seventh and eighth categories (nos. 7(d) and 20(a)(v) in the seventh, and nos. 7(e)

and 20(a)(vi) in the eighth) were abandoned at the hearing. Nos. 7(d) and 20(a)(v) had been

abandoned in the fifth category, 7(e) in the fourth, and 20(a)(vi) in the sixth.

The ninth category comprised interrogatories nos. 8(a)(i), 8(a)(ii), 8(b)(i), 8(b)(ii), 21,

32(a), 35(b), 36(b), 37(b), 38(b), 39(b), 40(b), 43(b), 44(b), 45(b), 46(w)(iv), 47(c), 47(w)(iii),

48(d), 48(aa), 49(e), 50(b), 50(z), 51(c), and 52(b). All of them were abandoned at the hearing,

except nos. 8(a)(ii), 8(b)(ii), and 32(a) (no. 46(w)(iv) had already been abandoned in the fifth

category). The primary objection taken to each of nos. 8(a)(ii) and 8(b)(ii) was that the

interrogatory was directed to the interpretation of a document of which the plaintiff was not the

17

author. Mr Morrison Q.C., for the plaintiff, did not seek to justify those objections, but argued

that each interrogatory was too wide in that it was not confined to any time relevant to the action.

In my view those objections should be upheld. Interrogatory no. 32(a) asked the plaintiff to

verify the transcript of an audiotape. The purpose of that interrogatory was to save costs, but in

my view it too was oppressive as it required the plaintiff to undertake the process of comparison

and interpretation. Even accepting, as was submitted on behalf of the defendants, that Kadlunga

v. Electricity Trust (1987) 43 S.A.S.R. 313 is authority for the proposition that an interrogatory

of this kind may be directed to aspects of a written record of interview or a transcript of court

proceedings, I nonetheless conclude that that interrogatory transgresses the rule against

oppression for the reason I have given.

In the tenth category interrogatories nos. 8(a)(iii) and 32(b) fail in consequence of my

rulings adverse to the defendants on nos. 8(a)(ii) and 32(a) respectively, and no. 8(a)(iv) was too

wide in that it was not confined to any time relevant to the action. No. 8(a)(v), also in the tenth

category, fails in consequence of the failure of no. 8(a)(iv). The remainder in the tenth category

(nos. 35(e), 36(e), 39(e), 40(e), and 45(e)) were abandoned at the hearing.

Interrogatories in the eleventh category were objected to as oppressive in that they were

too vague and “ in specific” (sic) (nos. 8(a)(ii) and 55), ambiguous and vague (nos. 22(d) and

35(w)), and vague (nos. 29(d), 36(w), 37(v), 38(v), 39(w), 40(w), 41(t), 42(u), 43(v), 44(v),

45(w), 46(t), 47(u), 49(y), and 50(v)). I have already given my ruling on no. 8(a)(ii) which was

adverse to the defendants. It was also in the ninth category. No. 55 followed from an answer

sought to no. 54 and asked whether the plaintiff made use of any other criterion or criteria, and

if so what criterion or criteria, when deciding whether or not he could lawfully terminate a

pregnancy in a specified period in May 1995. The reference to “other” criterion or criteria is to

distinguish those being asked about from those referred to in no. 54. The expression “make use

18

of” rendered the interrogatory so vague as to be oppressive in my view. Interrogatory no. 22(d)

asked about the “situations” in which women sought terminations of pregnancy “[a]s at April

1985". It asked a relevant question in my view and is not ambiguous or vague. It was, however,

too wide in that it was not confined to operations performed by the plaintiff. Interrogatory no.

35(w) asked whether a specified patient’s gynaecological and obstetric history was “normal”.

In my view that interrogatory was too vague and for that reason oppressive. Interrogatory no.

29(d) asked the plaintiff whether he used “the criteria of whether or not it was in the patient’s

best interests” when he performed a termination of pregnancy. The interrogatory lacked

precision. It was drawn too widely in that it was not confined to any time relevant to the action.

I therefore uphold the objection to it. Interrogatories nos. 36(w), 37(v), 38(v) and 39(w) were

in terms similar to those of no. 35(w) and were properly objected to for the same reason as no.

35(w) was. I have already given my rulings adverse to the defendants on interrogatories nos.

40(w), 41(t), 42(u), 43(v), 44(v), 45(w), 46(t), 47(u), 49(y) and 50(v). They were also in the fifth

category.

In the twelfth category nos. 29(e), 35(x), 36(x), 37(w), 39(x), 45(x), 46(u), 49(z) and

50(w) fail in consequence of my rulings adverse to the defendants on nos. 29(d), 35(w), 36(w),

37(v), 39(w), 45(w), 46(t), 49(y) and 50(v) respectively. There is an obvious misprint in no.

49(z): 49(w) is referred to when clearly 49(y) was intended. I have already given my ruling

adverse to the defendants on the remaining interrogatories in the twelfth category, which were

also in the sixth category: 40(x), 41(u), 42(v), 43(w) and 44(w).

The thirteenth category contained only interrogatory no. 8(b)(ii), upon which I have

already given my ruling which was adverse to the defendants. It was also in the ninth category.

In the fourteenth category, in which the objection taken was that an assumption was made

of a matter not admitted, only nos. 8(b)(iii), 12(b), 12(c) and 64(a) remain to be considered. I

19

have already ruled adversely to the defendants on the other interrogatories in that category: nos.

35(w), 36(w), 37(v), 38(v) and 39(w), which were also in the eleventh category; and nos. 40(w),

41(t), 42(u), 43(v), 44(v), 45(w), 46(t), 47(u), 49(y) and 50(v), which were also in the fifth

category. In interrogatories nos. 8(b)(iii), 12(b), 12(c) and 64(a) facts not admitted were

assumed. An objection based on that ground without more is, however, insufficient. The

objections must go further and raise grounds of oppression or unfairness: Thiess v. T.C.N.

Channel Nine Pty Limited (no.3) [1992] 1 Qd.R.587. Mr Morrison, while not challenging the

rule for which Thiess v. T.C.N Channel Nine Pty Limited (no.3) is authority, argued that it is not

necessary for grounds of oppression and unfairness to be raised explicitly in circumstances where

oppression or unfairness is manifest. Although I accept the force of that submission I am not

persuaded that the oppression or unfairness contended for is manifest in the case of any of the

four interrogatories in question. The plaintiff will therefore be required to make further and

better answers to those interrogatories.

In the fifteenth category only interrogatories nos. 47(v), 64(b) and 64(c) remain for

consideration. No. 47(v), which was also in the second category, fails in consequence of my

ruling adverse to the defendants on no. 47(u) which was in the fifth category. Further and better

answers will, however, be required to nos. 64(b) and 64(c) in consequence on my ruling on no.

64(a). (There is an obvious misprint in nos. 64(b) and 64(c) where “54" appears when clearly

“64" was intended.) I have already ruled adversely to the defendants on the other interrogatories

in that category: nos. 35(x), 36(x), 37(w), 39(x), 45(x), 46(u), 49(z) and 50(w), which were also

in the twelfth category; and nos. 40(x), 41(u), 42(v), 43(w), and 44(w) which were also in the

sixth category.

The plaintiff has objected to answering interrogatories in the sixteenth category (nos.

29(b), 57(b), 57(c), 58(b), 58(c), 59(b), 59(c), 60(b), 60(c), 61(b), 61(c) and 62) on the ground

20

that they are in the nature of cross-examination. That will not be a sufficient objection if the

question is relevant to an issue in the action. If it is relevant to an issue it does not matter that

the form of the question is appropriate to cross-examination. If, however, it is not material to an

issue but would be permissible in cross-examination only on a question of credit or to test the

evidence of a witness it will not be permissible as an interrogatory: see Coal Cliff Collieries Pty

Ltd v. C.E. Heath Insurance Broking (Australia) Pty Ltd (1986) 5 N.S.W.L.R. 703 at pp.709-710,

and Hansen v. Border Morning Mail Pty Ltd (1987) 9 N.S.W.L.R. 44 at pp.57-58. Interrogatory

no. 29(b) concerned the procedure adopted for persons seeking termination of pregnancy in May

1985. It was objected to as a fishing interrogatory and as cross-examination. An interrogatory

cannot be described as fishing if it is directed to obtaining information as to facts relevant to an

issue raised in the pleadings: Sharpe v. Smail at p.381, and Petcham Ltd (in liq.) v. B.F. Goodrich

Chemical Ltd [1982] V.R. 485. In my view the question is directed to such an issue and I

therefore overrule the “fishing” objection. For the same reason I overrule the “cross-

examination” objection. Interrogatories nos. 57(b), 58(b), 59(b), 60(b) and 61(b) asked the

plaintiff to express opinions on matters of law in my view, and so the plaintiff should not be

required to answer them. Interrogatories nos 57(c), 58(c), 59(c), 60(c) and 61(c) were directed

to how the plaintiff came to hold opinions on matters of law. I shall allow those objections.

Interrogatory no. 62 was too wide in that it was not confined to any time relevant to the action.

It follows from my rulings adverse to the defendants on interrogatories nos. 57(c), 58(c),

59(c), 60(c), 61(c) and 62 that interrogatories nos. 57(d), 58(d), 59(d), 60(d), 61(d) and 63 - all

of which are in seventeenth category - cannot be sustained.

I have already ruled on the interrogatories in the eighteenth category (interrogatories

objected to on the ground that they are fishing): nos. 29(b) and 62, which were also in the

sixteenth category; and no. 29(d) which was also in the eleventh category. I ruled adversely to

21

the defendant on nos. 62 and 29(d), but not on 29(b).

I have already ruled adversely to the defendants on the interrogatories in the nineteenth

category (interrogatories not answered as a result of an objection to answering interrogatories on

the ground that they were fishing) no. 29(e), which was also in the twelfth category; and no. 63,

which was also in the seventeenth category.

I have already ruled adversely to the defendants on the interrogatories in the twentieth

category (interrogatories objected to on the ground that they were oppressive): no. 55, which was

also in the eleventh category; and no. 62, which was also in the sixteenth category.

I have already ruled adversely to the defendants on the only interrogatory in the twenty-

first category - no. 63, which was also in the seventeenth category.

The twenty-second category (interrogatories nos. 74(d), 77(b), 77(c), and 77(d)) was

abandoned at the hearing. The defendants had asserted that the answers to those interrogatories

were scandalous.

In the twenty-third category the ground of objection taken to each interrogatory (nos. 78

to 89 inclusive) was that it was not properly an interrogatory but rather a request for further and

better particulars of the further amended statement of claim. On behalf of the defendants it was

argued that that was not a proper objection since it has been held that one of the objects of

interrogatories is to obtain such particulars: W.A. Pines Pty Ltd v. Bannerman (1980) 30 A.L.R.

559 at p.574 per Lockhart J. See also Saunders v. Jones (1877) 7 Ch. 435, and Green v. Green

(1912) 13 S.R. (N.S.W.) 126. At the hearing Mr McMurdo said that in lieu of an order requiring

further and better answers to those interrogatories his clients would be content with an order

requiring the provision of the further and better particulars of the further amended statement of

claim sought in the interrogatories. Mr Morrison, on behalf of the plaintiff, agreed to supply such

further and better particulars saving all just exceptions. The defendants agreed that that would

22

be the proper form of the order. Since the parties have agreed on that matter and since the order

agreed on will achieve same result - the provision of particulars - as an order requiring further

and better answers to the interrogatories I shall not consider the application for the latter order

in relation to interrogatories nos. 78 to 89 inclusive further.

It follows then that the plaintiff will be required to make further and better answers to the

interrogatories listed in the schedule to the defendants’ summons with the exception of the

following: nos. 7(a), 7(d), 7(e), 8(a)(i), 8(a)(ii), 8(a)(iii), 8(a)(iv), 8(a)(v), 8(b)(i), 8(b)(ii), 9(b)(ii),

9(c), 16(b), 19(f), 19(g), 20(a)(v), 20(a)(vi), 21, 22(d), 26(d), 26(e), 29(d), 29(e), 31(c), 31(d),

32(a), 32(b), 35(b), 35(e), 35(w), 35(x), 36(b), 36(e), 36(w), 36(x), 37(b), 37(v), 37(w), 38(b),

38(v), 39(b), 39(e), 39(w), 39(x), 40(b), 40(e), 40(w), 40(x), 41(t), 41(u), 42(u), 42(v), 43(b),

43(v), 43(w), 44(b), 44(v), 44(w), 45(b), 45(e), 45(w), 45(x), 46(t), 46(u), 46(w)(iv), 47(c), 47(u),

47(v), 47(w)(iii), 48(d), 48(aa), 49(e), 49(y), 49(z), 50(b), 50(v), 50(w), 50(z), 51(c), 52(b), 55,

57(b), 57(c), 57(d), 58(b), 58(c), 58(d), 59(b), 59(b), 59(c), 59(d), 60(b), 60(c), 60(d), 61(b),

61(c), 61(d), 62, 63, 65(a), 65(b), 65(c), 65(e), 65(f), 65(h), 65(i), 65(j), 65(k), 65(l), 65(m),

65(n), 65(o), 65(q), 65(s), 65(t), 65(u), 65(w), 65(x), 65(y), 65(z), 65(bb), 65(ff), 65(gg), 65(hh),

65(ii), 65(jj), 66(a), 71(a), 71(b), 74(d), 77(b), 77(c), 77(d), 78, 79, 80, 81, 82, 83, 84, 85, 86, 87,

88, and 89. I should add that interrogatory no. 66(a) appeared in the schedule to the defendants’

summons, but was not in any of the categories upon which I heard argument. Having heard no

argument on it, I have excluded it from the order requiring further and better answers.

An objection to answering any interrogatory not previously objected to may be taken by

the plaintiff in his affidavit in answer to the interrogatories.

The plaintiff will be required to provide the further and better particulars of his further

amended statement of claim sought in interrogatories nos. 78 to 89 inclusive, saving all just

exceptions.

23

In Part 1 of the plaintiff’s summons orders were sought that the defendants file and serve

affidavits making proper discovery of documents for which they had claimed legal professional

privilege. An order was sought that the first defendant file and serve an affidavit making proper

discovery of each of the documents for which he had claimed legal professional privilege and

which were referred to in Part II of Schedule 1 to his affidavit filed on 22 November 1989 and

in Part II of Schedule 1 to his affidavit filed on 29 August 1990 (wrongly referred to in the

summons as 28 August 1990). Orders in the same terms were sought against the second

defendant - in respect of documents referred to in Part II of Schedule 1 to his affidavit filed on

22 November 1989, and against the third defendant in respect of documents referred to in Part

II of Schedule 1 of his affidavit filed on the same day.

In Part II of Schedule 1 to the affidavit of the first defendant filed on the 22 November

1989 the documents were referred to as follows:

“Letters and copy letters, copy statements of witnesses and copy reports passingbetween myself, my legal adviser, and third parties instructions to Counsel andother material documents relating to this cause including memoranda and othermaterial brought into existence for the sole purpose of submission to legaladvisers for advice or for use in legal proceedings either anticipated threatenedor actual together with pleadings instructions to Counsel and Counsel’s advicethereon including documents prepared for filing and for use or intended for usein the action.”

The documents of each of the second and third defendants are described in the same

terms as those referred to in Part II of Schedule 1 to the first defendant’s affidavit of 22

November 1989 except that instead of the words “copy statements of witnesses and copy reports”

the words “statements and reports” appear, and in Part II of Schedule 1 to the affidavit of the

second defendant instead of the word “advice” where it is used for the second time the word

“advices” appears.

In the first defendant’s affidavit filed on 29 August 1990 the following appears:

24

“1. Copy police brief -R. v. P.J. Bayliss -`Procuring Abortions’ -Section 224 Criminal Code”

The dates are shown as “Various”. In the summons the plaintiff also sought orders in

respect of three further affidavits of Mr Brian Stewart, filed on behalf of the fourth defendant,

but following my giving leave to the fourth defendant to file and read an affidavit of Mr Antony

Stella, solicitor, sworn on 14 March 1997 the plaintiff did not proceed with that part of his

application.

Order 35 rule 12(1), so far as it is relevant, provides:

“. . . an affidavit of documents . . . shall enumerate the documents in a convenientorder and as shortly as possible, describing each of them or, in the case of bundlesof documents of the same nature, each bundle, sufficiently to enable it to beidentified, and shall specify which if any of the documents therein mentioned theparty objects to produce.”

In Braegrove Pty Ltd v. Bendeich [1993] 2 Qd.R. 239 Williams J. considered the

application of the rule to documents in respect of which a claim to legal professional privilege

is made. Applying principles discussed in particular in Taylor v. Batten (1878) 4 Q.B.D. 85 and

Gardner v. Irvin (1878) L.R. 4 Ex.49, his Honour determined that the following attempt at

enumeration and description was inadequate:

“1. Professional communications of a confidential nature made by the thirddefendant firm to its solicitors and to the third defendant firm by itssolicitors.

2. Instructions to and advice from counsel in relation to this action.3. Documents brought into existence in anticipation of or during the progress

of this action.4. Advice given by the third defendant firm to David Clout.”

The affidavit will be sufficient if the documents are sufficiently identified so as to enable

the Court to order that the documents be produced if it thinks fit to make an order to that effect:

Taylor v. Batten at p.88. That is as far as the affidavit need go; it is erroneous to suggest that

25

an opposing party is entitled to be in such a position as to test the truth of the affidavit by the

description of documents: ibid. The opposing party is not entitled to have the dates of documents

and such other particulars as may enable him to discover indirectly the contents of the

documents: Gardner v. Irvin at p.53 per Cotton L.J.

In Taylor v. Batten Cotton L.J., delivering the judgment of the Court of Appeal, observed:

“The principle of our decision is that the object of the affidavit is to enable theCourt to make an order for the production of the documents mentioned in it, if theCourt think fit so to do, and that a description of the documents which enablesproduction, if ordered, to be enforced, is sufficient.” (p.89)

It is instructive to note the facts of Taylor v. Batten, since they illustrate clearly how the

principle relied on by the Court of Appeal may be applied to documents in respect of which legal

professional privilege is claimed without going so far as to permit an opposing party to discover

indirectly the contents of the documents, and thus cause the party making discovery to furnish

evidence against himself in the action. The plaintiff had called on the defendant to make an

affidavit of documents in his possession. In his first affidavit the defendant said: “I have also in

my possession or power certain documents, letters, and correspondence, which have passed

between my legal advisers and myself in relation to the matters in question in this case, and with

a view to my defence to the plaintiff’s claim, and certain instructions to and opinions of counsel

in relation to the same matters, all of which I claim to be privileged from production”. The Court

found that to be clearly insufficient as the documents were described only as “certain documents,

letters” etc., without any further identification. But in a further affidavit the documents referred

to in a previous affidavit were, it was said, “numbered 50 to 76 inclusive, and are tied up in a

bundle marked with a letter A and initialled by me”. The Court found that the second affidavit

was sufficient.

Applying the principle referred to in Taylor v. Batten, which was applied by the Full

26

Court of Tasmania in Lazenby v. Zammit [1987] Tas.R. 54 as well as by Williams J. in Braegrove

Pty Ltd v. Bendeich, I conclude that the orders sought should be made against all three

defendants. The attempts at enumeration and description in their affidavits filed on 22 November

1989 were all clearly insufficient. In the case of the first defendant it appears from an affidavit

filed on 27 April 1990 that the inclusion of Part II of Schedule 1 to in his affidavit filed on 22

November 1989 may have been made in error, and that the only document the first defendant

intended to refer to was the brief described in his affidavit filed on 29 August 1990. The affidavit

filed on 27 April 1990 is, however, unclear on this point so I shall make an order against the first

defendant in respect of his affidavit filed on 22 November 1989. Although no description is

given of the contents of the brief, in my view that document is sufficiently described to comply

with the requirements of O.35 r.12(1), so I shall make no order against the first defendant in

respect of his affidavit filed on 29 August 1990.

In paragraph 2 of the plaintiff's summons the following order is sought against each

defendant:

"2. That the Defendants produce for inspection all documents referred to intheir Affidavits of Documents filed herein, for which legal professionalprivilege has been claimed, in so far as those documents refer to, orcontain material which relates to:

(a) any advice obtained by or communicated to the Defendants on orbefore 4 July 1985, as to the matters necessary to establish thecommission of the crimes of:

(i) using force with intent to procure the miscarriage ofwomen;

(ii) conspiracy to use force with intent to procure themiscarriage of women;

(b) any fact, matter or circumstance which might tend to establishwhether or not the Plaintiff committed either of those crimes;

(c) any belief held by the Defendants to the existence of any fact

27

matter or circumstance which might tend to establish whether ornot the Plaintiff had committed either of those crimes;

(d) any belief held by the Defendants as to whether or not the Plaintiffhad committed either of those crimes."

In Commissioner, Australian Federal Police v. Propend Finance Pty Ltd (1997) 71

A.L.J.R. 327 McHugh J. summarized the doctrine of legal professional privilege in these words:

"Legal professional privilege is the shorthand description for the doctrine thatprevents the disclosure of confidential communications between a lawyer andclient, confidential communications between a lawyer and third parties when theyare made for the benefit of a client, and confidential material that records thework of a lawyer carried out for the benefit of a client unless the client hasconsented to the disclosure. To be protected by the privilege, a communicationmust be made solely for the purpose of contemplated or pending litigation or forobtaining or giving legal advice. The privilege does not extend tocommunications that are made to facilitate the commission of crime or fraud, toabuse the exercise of public power or to frustrate the order of a court." (p.355)

McHugh J. referred to the following explanation by Stephen, Mason and Murphy JJ. of the

rationale for legal professional privilege in Grant v. Downs (1976) 135 C.L.R. 674:

"The rationale of this head of privilege, according to traditional doctrine, is thatit promotes the public interest because it assists and enhances the administrationof justice by facilitating the representation of clients by legal advisers, the lawbeing a complex and complicated discipline. This it does by keeping secret theircommunications, thereby inducing the client to retain the solicitor and seek hisadvice, and encouraging the client to make a full and frank disclosure of therelevant circumstances to the solicitor. The existence of the privilege reflects, tothe extent to which it is accorded, the paramountcy of this public interest over amore general public interest, that which requires that in the interests of a fair triallitigation should be conducted on the footing that all relevant documentaryevidence is available. As a head of privilege legal professional privilege is sofirmly entrenched in the law that it is not to be exorcised by judicial decision."(p.685)

McHugh J. pointed out (p.356) that that statement emphasizes "the paramountcy of the principle

of legal professional privilege in our legal system" and continued:

"In this country, legal professional privilege is more than a mere rule of evidence;it ‘is a substantive general principle which plays an important role in the effectiveand efficient administration of justice by the courts’, the best explanation ofwhich is that it is a ‘practical guarantee of fundamental, constitutional or human

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rights’. In Carter [(1995) 183 C.L.R. 121 at p.161], I pointed out that:

‘By protecting the confidentiality of communications between lawyer andclient, the doctrine protects the rights and privacy of persons includingcorporations by ensuring unreserved freedom of communication withprofessional lawyers who can advise them of their rights under the lawand, where necessary, take action on their behalf to defend or enforcethose rights. The doctrine is a natural, if not necessary, corollary of therule of law and a potent force for ensuring that the equal protection of thelaw is a reality.’" (p.356)

Legal professional privilege, McHugh J. later observed, is a legal right (p.358).

No argument was addressed to me to the effect that legal professional privilege had not

originally attached to the documents the subject of this part of the application. On behalf of the

plaintiff it was submitted however that the right to rely on legal professional privilege had been

lost. The proposition advanced was that where documents would otherwise be properly the

subject of a claim to legal professional privilege that privilege is lost if the documents relate,

directly or indirectly, to an issue in the action. On behalf of the defendants it was argued that that

formulation of the rule was too broad: that while legal professional privilege may be waived

when the content of a confidential communication is put in issue in proceedings by the party

entitled to rely on the privilege, the privilege is not lost when that party has not done so even

though the communication is relevant, directly or indirectly, to an issue.

On behalf of the plaintiff the following cases were referred to: Thomason v.

Campbelltown Municipal Council (1939) 39 S.R. (N.S.W.) 347, Torcasio Developments Pty Ltd

v. County Park Developments Pty Ltd (Supreme Court of Victoria, unreported, 9 September

1991), Hongkong Bank v. Murphy [1993] 2 V.R. 419, Data Access Corporation v. Powerflex

Services Pty Ltd [1994] A.I.P.C. ¶ 91-112 (p.38,714), and Wardrope v. Dunn [1996] 1 Qd.R. 224.

Reliance was placed on the passage of the judgment of Sir Frederick Jordan, with whom

Halse-Rogers and Bavin JJ. concurred, in Thomason v. Champbelltown Municipal Council at

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pp.358-359. I think it is sufficient to say that in my respectful view the analysis of that case by

McLellan J. in United States Surgical Corp v. Hospital Products International Pty Ltd, cited with

approval by Young J. in Farrow Mortgage Services Pty Ltd v. Webb (1995) 13 A.C.L.C. 1,329

at p.1,333, is correct. McLellan J.’s statement of the relevant principle was:

“. . it may be that the criterion that the otherwise privileged party must havehimself raised the fact and nature of the advice as an issue in the case is toorigidly stated. Nevertheless, before the privilege can be said to have been lost onthis principle, one must at least be able to identify some element or feature of theclaim made, or the evidence adduced, by the party otherwise entitled to theprivilege which would render reliance on the privilege unjust.”

Data Access Corporation v. Powerflex Services Pty Ltd was a case in which legal

professional privilege had been lost by the respondents by implied waiver, but Heerey J. also

held that an issue raised on the pleadings by the applicant had the effect that documents which

would otherwise have been subject to legal professional privilege lost that privilege because they

had been “pleaded into relevance”. (p.38, 715). To the extent that that formulation of the rule

goes beyond the principle explained by McLellan J. I am in respectful disagreement with it. I

should add that Hongkong Bank v. Murphy, referred to by Heerey J., was a case of implied

waiver of the protection of legal professional privilege by the party claiming it.

In Wardrope v. Dunn at pp.225-226 Derrington J. referred to observations of Gibbs C.J.

in Attorney-General for the Northern Territory v. Maurice (1986) 161 C.L.R. 475 at pp.481-482

as showing that waiver is the process by which the loss of privilege of occurs and is a different

matter from the reasoning as to why it should be lost. His Honour concluded that:

“Notwithstanding the high status of professional privilege and the carefulprotection which the law affords it, when the contents of a privilegedcommunication become the subject of a legitimate and reasonable issue in thelitigation, then the privilege is lost.

It does not matter whether the issue is raised by the party claimingprivilege or by the party seeking to override it, providing that the issue fairlyarises on the litigation: Cf. Data Access Corporation v. Powerflex Services PtyLtd [1994] A.I.P.C. 91-112. ” (p.226)

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It was submitted on behalf of the defendants that the last proposition was too broadly stated.

With respect to his Honour, I accept that submission as correct.

In Standard Chartered Bank v. Antico (1993) 36 N.S.W.L.R. 87 Hodgson J. said:

“I think it would be consistent with Attorney-General for the Northern Territory

v. Maurice to formulate the principle in Thomason in this way. If a party, by

pleadings or evidence, expressly or impliedly makes an assertion about the

content of confidential communications between that party and a legal adviser,

then fairness to the other party may mean that this assertion has to be taken as a

waiver of any privilege attaching to the communication.” (pp.94-95)

To the same effect was this formulation of the principle by Byrne J. in Torcasio Developments

Pty Ltd v. County Park Developments Pty Ltd & C.C. Brown:

“. . it is only where the client directory or indirectly puts in issue the substance ofthe privileged communication that the privilege is lost and then only insofar asit is necessary to do justice between the parties.”

Those statements by Hodgson and Byrne JJ. in my view define the rule that applies to this part

of the plaintiff’s application, consistently with the paramountcy of the principle of legal

professional privilege in our legal system.

Mr Brandis argued inter alia that paragraph 5(b) of the defence and certain answers to

interrogatories by the first defendant in which advice he received from the third defendant is

referred to had the effect of causing the loss of legal professional privilege. It is not possible in

my view however to read into paragraph 5(b) or the answers to interrogatories an assertion,

express or implied, about the content of confidential communications. There is nothing in the

plain words of paragraph 5(b) that could lead to that construction, and the first defendant was of

course required to answer the interrogatories.

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The relief sought in paragraph 2 of the plaintiff’s summons will therefore be refused.

I shall invite further submissions on the form of the orders to be made and costs.