Arnold v Midwest Radio Pty Ltd [1998] QSC 85

~r~ElVIC co0t'2.f. WtlaAt..lIlI.J ~~State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) ,-) SUPREME COURT OF QUEENSLAND CHAMBERS CULLINANE J No W80 of 1994 MARILYN ABIGAIL ARNOLD and MIDWEST RADIO PTY LTD (A.C.N. 003E072 455) TOWNSVILLE .. DATE O;fO~8 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date ~j I 'V I , r- Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane Q. 4000 Telephone: (07) 32474362. Facsimile: (07) 32475532 -- 1 of 4 -- ~020298 T12/HG M/T TSVSC4716 (Cullinane J) HIS HONOUR: In this matter the plaintiff has issued a writ of non-party discovery against the applicant. The applicant raised a claim of professional privilege and the matter has been brought pursuant to the provisions of Order 40 Rule 38D to this Court, before me. The respondent has objected to the production of the documents on a considerably wider basis. The position may be summarised in this way. The plaintiff has become aware that proceedings had been instituted by the applicant against an employer of the plaintiff, a newspaper, 10 which involved allegations thought to be similar to the allegations, the subject of these proceedings, against an employee of the newspaper who is also the person whose conduct is alleged to make the defendant in this action liable. For present purposes it might be assumed that the conduct, if sufficiently similar in character, might be admissible in these proceedings against the defendant. I do not intend to express any concluded opinion about this in the absence of any knowledge of what was alleged, by the applicant, in the ~ proceedings instituted by him. These proceedings were compromised and the matter did not proceed to trial. The relevant principles are to be found in the matter of Uthmann v. The Ipswich City Council, Queensland Law Reporter, 20 December 1997. It seems to me that the principles which Mr Justice Lee referred to are similar to those which were established in relation to Order 35, Rule 28, as it stood prior to the introduction of the writ of non-party discovery procedure. That required the applicant to show with some ~ 2 JUDGMENT -- 2 of 4 -- 020298 T12/HG M/T TSVSC4716 (Cullinane J) procedure. That required the applicant to show with some particularity the existence of documents which related to the matter in issue, and which could be the subject of a subpoena duces tecum. It was not then and, in my view, is not now permissible for discovery in the general way which is sought here to be obtained by a writ of non-party discovery. Counsel for the plaintiff made it clear that whilst denying that there was anything in the nature of a fishing expedition to establish a cause of action, the purpose of the proceedings 10 was to establish what documents were on the file and whether any of them might be of assistance in the plaintiff's action. It would seem likely that some of the documents would be privileged although no firm conclusion can be reached about this. It is not known otherwise what other documents were on the file although it can be inferred that there must be pleadings and correspondence. The position it seems to me is that the plaintiff seeks here ~ by the third party writ of discovery, documents in a general sense without, in my view, being able to point to evidence from which the Court can conclude that there are any specific documents which relate to the matter in question and which could be required to be produced at the trial of the matter. Ultimately, I have not been satisfied that the plaintiff is entitled to the production of the file in a general way, which is what is sought, or for that matter any particular parts of the file in the absence of evidence from which I can conclude ~ 3 JUDGMENT -- 3 of 4 -- 020298 T12/HG M/T TSVSC4716 (Cullinane J) that there are specific documents which meet the requirements of section 40 Rule 38A. The result will be that the application will be dismissed. MR QUIRK: Your Honour, it's the respondent's application. HIS HONOUR: The result will be that the application succeeds. What does it provide for - the setting aside of the----- MR QUIRK: Yes, Your Honour. HIS HONOUR: I order that the writ of non-party discovery directed towards the applicant be set aside. Yes, the question of costs you are entitled to, anyhow. Yes, where they're produced, yes. MR QUIRK: Your Honour, given that Stringer Clark was put to considerable expense in dealing with this writ and the fact that they were highly successful on the summons I would ask 10 for costs. ~ HIS HONOUR: Yes, do you have anything to say about that, Mr White. MR WHITE: No, thank you, Your Honour. HIS HONOUR: I order the respondent to the application to pay the applicant's cost of and incidental to the application to ~ be taxed. 4 JUDGMENT -- 4 of 4 --