Bayliss v Cassidy & Ors [1990] QSC 161

10 1 20 30 40 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 4786 of 1988 BEFORE MASTER WHITE r R[,::ISEDCOP12, .,ssuED , I Cour\ ~oor?G ~reau l! Date,~_) / .) / / 0 ~ BRISBANE, 16 MAY 1990 BETWEEN: MASTER: (Copyright in this transcripl:l~s=vestea~n........=-, the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) PETER JOHN BAYLISS -and- ROBERT BERNARD CASSIDY -and- NEVILLE JOHN HARPER -and- DESMOND GORDON STURGESS -and- STATE OF QUEENSLAND JUDGMENT Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant In this application the applicant/plaintiff seeks orders that the respondent/fourth defendant make further and better discovery on oath of all documents which are or have been in its possession or power relating to the matters in question in this action and to swear as to whether any of the documents or classes of documents set out in the schedule to 10 20 30 40 so the summons have at any time been in its possession or power; so and in relation to each document which has been, but is not now 60 in its possession, when the fourth defendant parted with each such document and what has become of it. It is thus clear that the applicant is seeking further and better discovery pursuant Go·,t. Printe,, Old. 1 60 -- 1 of 10 -- 10 20 30 40 50 co to 0.35 r.11(2) and 0.35 r.18. Mr. Hampson of Queen's Counsel who appeared for the respondent sought to have admitted into evidence an affidavit sworn by 'Bernene Allen, a legal officer in the office of the Crown Solicitor. That affidavit, I am informed, swears on information and belief that Mrs. Allen has contacted various relevant persons to ascertain the existence or otherwise of the documents or classes of documents sought in the schedule to the summons and, with certain exceptions, has been told that such documents either are not known to have existed or cannot be found.· Miss Kiefel of Queen's Counsel who appears for the applicant objected to the reception of that affidavit on the well-known ground that in an application relating to further -and better. discovery generally, . -the- affidavit of documents is conclusive and may be challenged only by reference to the pleadings, the affidavit itself or from do9uments referred to in the affidavit. See British Association of Glass Bottle [, ,, Manufacturers Ltd. v. Nettlefold [1912] 1 K.B. 369 and [1912] I I A.C. 709, Mulley v. Manifold (1959) 103 C.L.R. 341 and Beecham I Group Ltd. v. Bristol Myers Ltd. (1979) V.R. 273. Miss Kiefel would apply this proposition against the reception of Mrs. Allen's affidavit which seeks to answer the summons. With the exception of paras. 15 and 16(d), (g) and (i) of Mrs. Allen's' affidavit which admit the existence of certain specified documents . not previously discovered, that affidavit does nothing more·· than endorse the conclusiveness of the affidavit of documents of the fourth defendant which was sworn by Brian Adrian Stewart, the Director-General of the Department of the Attorney-General on behalf of the fourth defendant. The Govt. Printer, Old. 2 10 20 n '.' 30 40 50 60 -- 2 of 10 -- 10 20 ) ) 3C ) 40 J 50 GO affidavit of Mrs. Allen is not in the form required by the rules for an affidavit as to discovery of documents. A further affidavit of Mr. Stewart in response to the summons reflecting the requirements of 0.35 r.11(2) would, in my view, have been admissible although still subject to the same challenge which is made to his existing affidavit of documents. Therefore, with the exception of those paragraphs mentioned above, I decline to receive into evidence the affidavit of Bernene Allen. The applicant's counsel has set out in a most helpful manner a chronology and a list of documents likely to have been excluded from the affidavit of Mr. Stewart with the evidence from which such inference might be drawn either as to particular documents, and more generally as to a class of documents. It is necessary to mention only briefly the elements of the causes of action which are pleaded against the defendants and which arise out of the arrest of the plaintiff on 20 May 1985 at Logan Road and subsequent charges which were laid against him of conspiracy unlawfully to procure a miscarriage of women~ In addition, pursuant to a warrant certain documents and patient records and other matters were seized. The charges against the plaintiff were resolved in his favour and the Full Court of the Supreme Court held that the warrant, to the extent that it related to documents, was unlawful. Accordingly, the plaintiff claims damages for false imprisonment, malicious process, malicious prosecution and trespass to goods. Thus, whether there was a reasonable and probable cause for the arrest, seizure of documents, detention and prosecution and as to whether the defendants or any of them Govt. Printer, Old. 3 10 20 30 40 50 60 -- 3 of 10 -- r -,_ -·· . 10 20 30 40 were activated by malice or improper purpose are.relevant matters for the consideration of an application for further discovery. I turn.then to the particular documents or classes of documents which are sought .by the applicant. Paragraph 1 of the schedule to the amended summons requests: "Cabinet documents, consisting of: (a) agendas; (b) submissions; (c) documents of the kind described in paragraph 12 of the affidavit of Russell Roberts; (d) minutes; and (e) 'Cabinet Blues' in respect of - (i) each Cabinet meeting referred to in a letter dated 29 May 1985 from the Honourable N.J. Harper, Minister for Justice and Attorney-General, to the Honourable Sir Bjelke-Petersen, Premier and Treasurer, beingExhibit 'C' to the affidavit of Jeffrey Robert Thomson filed herein this day; and (ii) the Cabinet meeting referred to by the Honourable N.J. Harper during his press conference 0£ 2 July 1985, the transcript of which is Exhibit 'D' to the affidavit of Jeffrey Robert Thomson filed herein this day; insofar as such documents relate to discussions concerning the operation of and police action to enforce the closure of 'abortion clinics'." Exhibits "C" and "D" to the affidavit of Jeffrey Robert 10 20 30 40 so Thomson filed on 15 May 1990 are relied upon as giving rise to 50 60 inferences that there are discoverable documents. Paragraph 2 of Exhibit "C" provides as follows: "Following a detailed discussion with Cabinet at its Caloundra meeting last year . I was given the task of closing any so-called 'abortion clinics' if they were operating illegally, giving effect to the law as it exists." ~ Govt. Printer, Old. 4 0 0 -- 4 of 10 -- 10 20 30 40 50 60 "During the intervening 12 months the subject has been mentioned in Cabinet at least three times although no further detailed discussion has taken place, because oneach occasion I have indicated that I was attending to the matter." In the affidavit of Russell Roberts sworn on 15 May 1990 and filed therein by leave, Mr. Roberts, a former Cabinet Secretary from 1981-1986, sets out the Cabinet business procedure in paras. 6, 9, 11 and 12. In para. 16 he swears: "Submissions to Cabinet included oral submissionsCabinet Meeting as wellreceived by the Secretary were then considered. This raised during the course of the as formal written submissions prior to the Cabinet Meeting." In para. 18 of his affidavit he swears: "Following the Cabinet Meeting the decisions in relation to the various submissions were prepared for classification and distribution to the various Ministers and Departments on the following morning by the Secretaryto the Cabinet." Further matters relating to the procedure arising out of Cabinet Meetings are set out in paras. 20, 22 and 23 of his affidavit. Accordingly, I am of the view that the inference can fairly be drawn that documents of the kind sought in para. 1 of the summons were brought into existence. Paragraph 2 of the summons requests: "Cabinet documents, consisting of: (a) agendas; (b) submissions; (c) documents of the kind described in paragraph 12 of the affidavit of Russell Roberts; (d) Cabinet Blues in respect of Cabinet meetings held on 21 May 1985 and 25 June 1985 (true copies of the extract of minutes of which appear as Exhibits 'E' and 'F' to the affidavit of Jeffrey Robert Thomson filed herein this day); insofar as such documents relate to discussion concerning the operating of and police action to enforce the closure of 'abortion clinics'. " Govt. Printer, Qid. 5 ::. 10 20 30 40 50 60 -- 5 of 10 -- 10 20 30 40 50 Reliance is placed by the applicant upon Exhibits "E" and "F" to the affidavit of Mr. Thomson referred to above. I am unable to draw the inferences requested that documents of any kind were in existence notwithstanding the affidavit of Mr. Roberts. Paragraph 3 of the summons requests: "The 'instructions' referred to on p. 5 of the transcript of a media interview given by the Honourable N. J. Harper on 26 June 1985 (being Exhibit 'G' to the affidavit of Jeffrey Robert Thomson filed herein this day). " The applicant relies upon Exhibit "G" to the affidavit of Mr. Thomson. It should be noted that these exhibits to 10 Mr. Thomson's affidavit are documents which have already been obtained on discovery. In my view, it can fairly be drawn from that that a document exists which is relevant to the matters in issue between the parties. 20 nt ·' Paragraph 4 requests: "All documents recording, evidencing or referring to the discussions between the Minister for Justice and Attorney-General and Senior Police Officers in Townsville referred to it in the sixth paragraph of the first page of the letter dated 2 9 May 19 8 5, from the Honourable N. J. Harper, Minister for Justice and Attorney-General to the Honourable Joh Bjelke-Petersen, Premier and Treasurer, being Exhibit 'C' to the affidavit of Jeffrey Robert Thomson filed herein this day." The applicant relies upon Exhibit "C" to the affidavit of Mr. Thomson. I am unable to draw an inference that such documents sought exist. Paragraph 5 requests: 30 40 "All petitions, telex messages, letters and memoranda of 50 telephone calls, referred to in the handwritten question and answer notes, Exhibit 'H' to the affidavit of Jeffrey Robert Thomson filed herein this day;· and all memoranda or other documents recording, evidencing or referring to such documents." The applicant relies upon Exhibit "H" to the affidavit of Mr. Thomson. I am unable to draw an inference that documents GO 60 Govt. Printer, Qld. 6 -- 6 of 10 -- 10 20 30 40 ; )' "- 50 GO of the kind sought in the summons exist. Paragraph 6 of the summons requests: "All documents recording, evidencing or referring to the Cabinet direction referred to in the entry of 24 April 1985 in the log of the first defendant, Exhibit 'I' to the affidavit of Jeffrey Robert Thomson filed herein this day (hereinafter called 'the first defendant's log')." The applicant relies upon Exhibit "I" to the affidavit of Mr. Thomson. This is a log obtained on discovery of the first defendant, Robert Bernard Cassidy. I am unable to draw an inference of documents of the kind sought in the summons list were brought into existence. Paragraph 7 requests: "All documents recording, evidencing or referring to the direction by the third defendant referred to in the entry of 24 April 1985 in the first defendant's log." That request also relies upon Exhibit "I" to the affidavit of Mr. Thomson. I am unable to draw the .inference from that document, and the pages specifically referred to therein, that documents of the kind sought have come into existence. Paragraph 8 requests: "The document entitled 'Abortion, A Selection of Papers', referred to in the entry of 25 April 1985 in the first defendant's log." The affidavit of Mrs. Allen to which reference has earlier been made admits in paragraph 16(g) that such a document exists and Mr. Hampson has agreed that that will be contained in a further affidavit. Paragraph 9 requests: "The records referred to in the entry of 23rd May 1985 in the first defendant's log, and all documents recording, evidencing or referring to such records." The applicant again relies on Exhibit "I" to the affidavit of Mr. Thomson. I have formed the view that such documents are actually in existence since they are referred to as specific Govt. Printer, Old. 7 10 20 30 40 50 GO -- 7 of 10 -- I \ (c\ 10 20 30 40 50 60 documents, even though they are described in a general way. Paragraph 10 requests: "All documents of the kind referred to in the fourth paragraph of the letter from the Crown Solicitor to the solicitors for the plaintiff dated 11 May 1990, Exhibit 'O' to the affidavit of Jeffrey Robert Thomson filed herein this day." The applicant relies upon Exhibit "O" to the affidavit of Mr. Thomson. It is agreed by the respondent that such document does exist and will be contained in a further affidavit of Mr. Stewart. Paragraph 11 of the summons requests: "All documents recording, evidencing or referring to the discussions between the second defendant and the third defendant · referred to in the letter dated 17 May 1985 from N. J. Harper, Minister for Justice and Attorney-General, to Mr. T.M. Lewis, Commissioner of Police, being Exhibit 'J' to the affidavit of Jeffrey Robert Thomson filed herein this day." The applicant relies upon Exhibit "J" to the affidavit of- Mr. Thomson. I am unable to draw the inference fairly from that document that such other documents can be said to exist. Paragraph 12 of the summons requests: 10 20 30 "All doduments recording, evidencing or referring to the 'several months secret investigation and planning' referred to in the telex message from Ian Hatcher, Media Officer, Police Headquarters to John Keenan, dated 20 May 40 1985, being Exhibit 'K' to the affidavit of Jeffrey Robert I Thomson filed herein this day." The applicant relies upon Exhibit "K" to the affidavit of Mr. Thomson. I cannot fairly draw the inference that documents of the kind sought exist or existed from that document. -Paragraph 13 of the summons requests: "All documents recording, evidencing· or referring to the investigations ~eferred to in the fourth paragraph of the letter from B. P. Webb, Detective Inspector, to the Detective Superintendent, Metropolitan C.I. Branch, dated 28 June 1985, being Exhibit 'L' to the affidavit of Jeffrey Robert Thomson filed herein this day." The applicant relies upon Exhibit "L" to the affidavit of Govt. Printer. Qld. 8 50 60 CJ 0 0 0 -- 8 of 10 -- ,.,- .. , ·, ) ·~) 10 Mr. Thomson. I am not persuaded that the inference sought to be drawn from that document can fairly be made, that documents of the kind sought exist or have existed. Paragraph 14 of the summons requests: "All documents recording, evidencing or referring to the discussions between T.M. Lewis, Commissioner of Police, and the Honourable N.J. Harper, Minister for Justice and Attorney-General, referred to in the letter from T.M. Lewis to the Assistant Commissioner, Crime and Services dated 5 July 1985, being Exhibit 'M' to the affidavit of Jeffrey Robert Thomson filed herein this day." The applicant relies upon Exhibit "M" to the affidavit of Mr. Thomson. That document does not, in my view, permit an 10 20 !inference to be drawn that other documents of the kind sought,I 20 I 30 40 50 or indeed any documents can be said to be or have been in existence. Paragraph 15 of the summons requests: "All . documents recording, evidencing or referring to the investigations referred to in the letter dated 26 November 1985 from the Honourable W.H. Glasson, Minister for Lands Forestry and Police, to the Honourable N. J. Harper, Minister for Justice and Attorney-General, being Exhibit 'N' to the affidavit of Jeffrey Robert Thomson filed herein this day." The applicant relies upon Exhibit "N" to the affidavit of Mr. Thoms·on. It can be fairly said that documents of the kind sought in the nature of reports can be inferred as having been brought into existence from that document. Paragraph 16 of the amended summons requests: "Documents referred to in the note 'Silent Copy' endorsed 30 40 on the last page of the photograph document being part of document 206 in the affidavit of Brian Adrian Stewart sworn on 2 2 November 19 8 9 and being Exhibit 'A' to the 50 further affidavit of Jeffrey Robert Thomson namely the computer records and print-outs thereof." The applicant relies upon Exhibit "A" to the affidavit of Mr. Thomson, sworn on 15 May 1990 and filed today by leave, and in my view, it can fairly be inferred that there are other Govt. Printer. Old. 9 60 -- 9 of 10 -- 10 20 30 40 50 60 documents in existence sufficiently referred to in that document. I am mindful, in relation to that document, that Mr. Hampson has submitted from the Bar table, that that is nothing more than a prank endorsement on the document. Notwithstanding that submission, on the face of the document itself, it does give rise to an inference as to the existence of other documents. I order that the fourth defendant make and serve a further affidavit relating to the documents sought in paras. 1, 3, 8, 9, 10, 15 and 16 of the amended summons, and that the fourth defendant state upon affidavit whether any of the documents or classes of documents set out in the paragraphs abovementioned in the schedule to the amended summons have at any time been in its-possession or-power, --and in relation to each document which has been but is not now in its possession when the fourth defendant parted with each such document and what has become of it, within 21 days thereof. (Argument on costs.) MASTER: Notwithstanding your submissions, Mrs. Kiefel, and I recognise the force of much of what you say, some of those matters I think that you raised could have been and were dealt with in the letter of the learned Crown Solicitor, and sol it seems to me that perhaps an appropriate order would be that the costs be costs in the cause. Govt. Printer, Old. 10 l ' • 10 20 CJ 30 () 40 0 50 60 -- 10 of 10 --