JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 
IN CHAMBERS 

CITATION	:	BREWER & ANOR -v- COLONIAL PORTFOLIO SERVICES LTD & ORS [2007] WASC 22 

CORAM	:	MASTER SANDERSON 

HEARD	:	16 OCTOBER 2006 

DELIVERED	:	6 FEBRUARY 2007 

FILE NO/S	:	CIV 2538 of 2001 

BETWEEN	:	KEVIN CHARLES BREWER
DIANNE MERRILYN BREWER
Plaintiffs
 
AND
 
COLONIAL PORTFOLIO SERVICES LTD (ACN 066 649 241)
WESTGATE PROPERTY INVESTMENTS PTY LTD (ACN 008 713 175)
First Defendants
 
SAVOY MANAGEMENT PTY LTD (ACN 008 684 820)
Second Defendant
 
ANDREW PAGE
Third Defendant
 
IAN WILSON
Fourth Defendant 

Catchwords:
Practice and procedure - Application for inspection of documents over which privilege claimed - Application for leave to administer interrogatories - Turns on own facts 
Legislation:
Trade Practices Act 1974 (Cth), s 51A, s 52 
Result:
Applications refused 
Category:    B 

Representation:
Counsel:
Plaintiffs	:	Mr S G Leslie
First Defendants	:	Mr P Mendelow
Second Defendant	:	Mr P Mendelow
Third Defendant	:	Mr P Mendelow
Fourth Defendant	:	Mr P Mendelow 
Solicitors:
Plaintiffs	:	Wilson & Atkinson
First Defendants	:	Mullins Handcock
Second Defendant	:	Mullins Handcock
Third Defendant	:	Mullins Handcock
Fourth Defendant	:	Mullins Handcock 

Case(s) referred to in judgment(s):

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Dalecoast Pty Ltd v Monisse [1999] WASCA 103

1	MASTER SANDERSON:  By this application, the plaintiffs seek two orders.  First, an order that they be entitled to inspect certain documents referred to in an affidavit of discovery lodged by the first defendants.  Second, the plaintiffs seek leave to administer interrogatories.  To understand the nature of the first application, it is necessary to provide a brief summary of the facts.
2		On 18 September 2003, an affidavit of supplementary discovery was sworn on behalf of the first defendants.  Appearing in Pt 1 of the first schedule to the list of documents, was a series of documents which were then in the possession of the first defendants but which were the property of a third party.  On 14 October 2003, the solicitors for the plaintiffs sought to inspect these discovered documents.  Inspection was refused.  The basis for the refusal was that the third party owner of the documents had, some time prior to the request being made, sought the return of the documents and refused the first defendants permission to allow inspection by the plaintiffs.
3		On 12 November 2003, the first defendants returned the documents to the third party.  They have now gone missing and all efforts to trace them have come to nothing.  It must be assumed that they will not be recovered.  Hence, the plaintiffs cannot inspect these documents either by way of third party discovery, or by subpoena.
4		Prior to returning the documents to the third party, the first defendants' solicitors took photocopies of some of the documents.  The first defendants then lodged a further supplementary affidavit of discovery sworn 30 January 2004.  The documents that were photocopied were then listed in Pt 2 of the first schedule to the list of documents.  In other words, privilege was claimed over them.  It is said that the privilege arises because the documents were photocopied for the purposes of litigation.  That was the first defendants' position on the hearing of this application.
5		There is no doubt that copies of documents to which privilege does not attach which are made for the purposes of litigation themselves attract privilege.  That was decided by the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.  While accepting that general proposition, counsel for the plaintiffs said that in this case the principles could be modified so as to allow inspection to take place.  That submission is entirely at odds with what was said by Brennan CJ at 511:
"No modification (of the principle that copies of non privileged documents made for the purposes of litigation) would be permitted if the privilege were claimed in response to an application for discovery or inspection in judicial or quasi‑judicial proceedings.  In such proceedings, the privilege, once it attaches, is not lost unless it be waived by the holder of the privilege.  No balancing of interests is called for, as the balancing has been done in according recognition to the privilege."
6		The privilege can be lost by imputed waiver.  The cases make it plain that imputed waiver occurs when, due to some action on the part of the holder of the privilege, it becomes unfair to maintain that privilege.  Care must be taken not to interpret this statement of principle as embodying some overriding principle of fairness operating at large.
7		It is proper to ask in this case, then, what action the first defendants have taken to waive privilege over the copied documents.  The answer is none.  Counsel for the plaintiffs pointed to two facts.  First, in the affidavit of discovery sworn 18 September 2003 privilege was not claimed over these documents.  That was said in some way to be a waiver of privilege for all purposes.  Further, it was said that in refusing inspection of documents there was some improper or inappropriate behaviour which could be translated into a waiver.  The answer to both these submissions is the same.  For there to be an imputed waiver, some act on the part of the first defendants was necessary subsequent to the privileged documents coming into existence.  It is logically impossible for privilege to be waived prior to the privilege being established.  There is no evidence of anything done after the privileged copies were made which could amount to a waiver on the part of the first defendants.
8		Counsel for the plaintiffs made a further submission which essentially would have required the first defendants to provide an affidavit setting out the contents of the privileged documents.  This submission was based on the following passage from Brennan CJ's judgment in Propend (supra) at 510:
"Thus, in proceedings in which discovery is available, the contents of an unprivileged original document can be proved as against a party who has had the original in his possession or power, even if a copy of the original is protected from inspection by legal professional privilege.  When an unprivileged original can be produced or secondary evidence of its contents can be tendered in evidence, the according of legal professional privilege to a copy does not impair, although it does not hasten, the administration of justice."
9		In my view, this passage says nothing which would assist the plaintiffs on the facts of this case.  What the passage anticipates is this.  If the documents had not been lost and they were produced by a third party consequent upon a subpoena, those documents could be put in evidence.  The fact that copies were privileged was of no consequence.  That is not this case.
10		In my view then there is no basis upon which inspection can be ordered.  In some ways the result is bizarre but the authorities in this area are clear and there is no warrant for my ordering inspection of these documents.
11		That then leaves the question whether the plaintiffs should be permitted to administer interrogatories.  There are five different sets of interrogatories.  One set being administered to each of the first defendants and one set administered to each of the other three defendants.  The request is made out of time and the first issue is whether or not leave to make the application out of time ought be granted.
12		On 4 May 2006, Registrar Johnston ordered that any application for leave to administer interrogatories be filed and served by 25 May 2006.  This application was not brought until 24 August 2006.  It was accompanied by an affidavit of Shayne Graham Leslie sworn 24 August 2006 explaining the delay in bringing the application.  Without going through the detail of that affidavit I am satisfied that the explanation for the delay is reasonable.  There has been no contumelious disregard of orders by the plaintiffs.  Rather their solicitors have been methodically working through the processes necessary to bring this action to trial.  As soon as the proposed interrogatories were in a settled form, proper discussion was undertaken and when that was not fruitful the application was made.  I would therefore grant the extension of time sought within which to bring this application.
13		Before dealing with the interrogatories themselves I should make some general comments about this case and about the principles upon which leave to interrogate is granted.  The first defendants are the owners of a shopping centre in Rockingham.  The second defendant is its leasing agent and the third and fourth defendants are employees of the second defendant.  The plaintiffs allege that in April 1998 a meeting took place between the plaintiffs and the fourth defendant at which certain representations were made.  It is also said that as a result of the actual representations made further implied representations were made.  Certain of these representations were said to be as to future matters others of the representations were said to be representations of fact.  All of the representations are alleged to have been false.
14		On 28 June 1998, a further meeting is alleged to have taken place between the plaintiffs and the third defendant.  At that meeting it is alleged the third defendant made certain representations to the plaintiffs and these representations are said to be false.  There were two more meetings with the third defendant and it is alleged that at each of these meetings further representations which subsequently proved to be false were made.  The plaintiffs say they acted on the faith of those representations and they have suffered loss and damage and that they are entitled to relief under the Trade Practices Act 1974 (Cth).  There is a further allegation raised in negligence but there is nothing in the allegations of negligence above and beyond what is contained in the representations said to be actionable under the Trade Practices Act.
15		It is worth bearing in mind just what it is necessary for a plaintiff to prove in an action under the Trade Practices Act.  For an action under s 52 it is necessary to establish that certain representations were made.  Here all of the pleaded representations are said to be oral.  So when the matter gets to trial the Judge will have to determine whose evidence to accept - that of the plaintiffs or that of the third defendant.  It is quite a straightforward matter really with credibility being the key to the outcome.  There could be no dispute that any representations made were made in trade and commerce.  The plaintiffs must then establish that they relied upon the representations in acting as they did.  Given that they took up a lease that would not seem to present the plaintiffs with too many difficulties.  Then they must establish their loss - reliance loss not expectation loss.  The information to establish the loss must surely be particularly within the knowledge of the plaintiffs.  Nothing they could seek from the defendants would help them with that aspect of their case.
16		The position with respect to s 51A is even more straightforward.  Having alleged representations as to future matters it is then for the defendants to establish that the representation was made on reasonable grounds.  But again the key question is whether the representation was actually made.
17		Analysed in those terms it can be seen that this is a relatively straightforward case.  It is by no means exceptional or unusual.  As is so often the case in these trade practices actions it will almost inevitably depend on whose evidence is accepted.  Some documentation may be relevant to verify particular aspects of an individual's evidence or to cast doubt on an individual's testimony.  But it is difficult to see this being what is sometimes called a documents case.  It is a case based on credibility.
18		Over many years a body of law has grown up dealing with what is appropriate by way of interrogatories.  Most of these rules are couched in the negative.  Interrogatories which are mere cross‑examination will not be permitted, interrogatories which are fishing will not be permitted, interrogatories may not assume any fact in question, they must be unequivocal and drafted with rigorous precision and if they are prolix, oppressive or unnecessary they will not be permitted.  In addition to those which might be called classical rules there is now the requirement that leave be obtained before interrogatories are administered.  This requirement of leave is essentially to give effect to case management principles.  The aim is to limit interrogatories to only those cases where they are strictly necessary thus avoiding expense and delay.  The principles have been discussed in many cases Dalecoast Pty Ltd v Monisse [1999] WASCA 103 being but one example.  It is also to be borne in mind that most cases in this Court and certainly this present case would proceed on the basis of each party providing witness statements before trial.  That fact even of itself should reduce the need for interrogatories.
19		Along with their objections as a matter of principle to these interrogatories the defendants have objected to the form of interrogatory themselves.
20		The nature of the interrogatories can be illustrated by reference to interrogatory 1.1 of those interrogatories directed at the first‑named first defendant.  This interrogatory is directed at par 5 of the first defendants' defence.  Paragraph 5 of the first defendants' defence refers to par 5 of the statement of claim.  This paragraph deals with representations allegedly made by the fourth defendant at his meeting with the plaintiffs in April 1998.  Paragraph 5.2 of the statement of claim alleges that in response to a query from the plaintiffs as to why the previous tenants of the shop had vacated tenancy the fourth defendant said that the shop would do well and that it simply needed experienced operators and a "revamp".  He is also alleged to have said that the previous tenants were not suited to the business.  Paragraph 5 of the first‑named first defendant's defence generally denies par 5 of the statement of claim.  However, it admits that the fourth defendant expressed the honest opinion that with good management and a "revamp of the premises, a coffee shop and take away food business could be operated profitably".  It is said that that was an honest opinion on the part of the fourth defendant.  Interrogatory 1.1 is in the following terms:
"Whose opinion was it that 'with good management and a 'revamp' of the premises, a coffee shop and take away food business could be operated profitably therefrom'."
21		The plaintiffs allege that the representation in par 5.2 was as to a future matter.  They go on further in par 11.2 of the statement of claim to allege that there was no reasonable basis for the fourth defendant representing that the shop would do well irrespective of whether or not it had experienced operators and a revamp.  There is no issue between the parties as to whose opinion the fourth defendant was expressing.  It is common ground that he was expressing a view.  The question is whether the representation made is actionable under the Trade Practices Act.  In my view the interrogatory is both irrelevant and unnecessary and does not relate to a matter in issue.
22		This one interrogatory is not necessarily representative of all of the rest of the interrogatories.  But, without going through the considerable number in issue, I am not satisfied that any should be answered.  As I have said in a relatively straightforward case such as this it seems to me there is virtually nothing to be gained by ordering lengthy and detailed interrogatories which are unlikely to advance the plaintiffs' case to any significant extent.
23		Having said that there is one category of interrogatories to which I should draw special attention.  These are interrogatories which are directed at privileged documents.  The way in which the interrogatories are put can be illustrated by quoting interrogatories 4, 5 and 6 of the interrogatories proposed to be directed at the first‑named first defendant.  Those interrogatories are in the following form:
"4.	Refer to each of documents numbered 4 to 74 (inclusive) in Part 2 of the First Schedule to annexure A to the affidavit of discovery of Kalvan William O'Connor sworn 30 January 2004 and state whether the document was over [sic] within your possession, custody or power.
5.	If the answer to interrogatory 4 is 'yes' with respect to any of the documents then, with respect to each such document, state whether the document is still within your possession, custody or power.
6.	If the answer to interrogatory 5 is 'no' with respect to any of the documents then, with respect to each such documents, provided by photocopy or other means a transcript (and if that is impossible the best summary that you can) of the document."
24		Interrogatories 4 and 5 are unnecessary.  The documents in question are included in the affidavit of discovery referred to in interrogatory 4.  That affidavit says that the documents are within the first‑named first defendant's possession, custody and power.  It is then difficult to understand interrogatory 6.
25		It is clear that what these three interrogatories are directed at is obtaining some information about the contents of the documents over which the defendants now claim privilege.  It ties back in with par 4 of the application which would have the first‑named first defendant state on affidavit the contents of documents numbered 255 to 324 in Pt 1 of the first schedule to annexure A to the affidavit of discovery of Mr O'Connor sworn 18 September 2003.  Of course Mr O'Connor's affidavit of 30 January 2004 is the affidavit which claims privilege over the copies of the documents mentioned in his earlier affidavit on the basis that those copies were made for the purposes of litigation.  In other words what the plaintiffs are attempting to do is go behind the discovery and have the first‑named first defendant describe the contents of the documents on affidavit.
26		Whether this is done by way of interrogatories or by seeking further discovery orders it is, in my view, an impermissible attack on the present affidavit of discovery.  It seeks information about privileged documents.  That information is just not available to the plaintiffs.  Accordingly I would refuse an order in terms of par 4 of the application and I would refuse leave to administer any interrogatories which seek in effect details of the contents of privileged documents.
27		I will hear the parties as to the precise form of orders and as to costs.