LAWS 2244
SEMESTER 1 2000
QUESTION 2
MARK: 80
(1)Further Discovery
You have already issued the SoC and the OA and got initial discovery of documents. But you wish to apply for further and particular discovery of particular documents because you believe that the list of documents is incomplete. Historically a plaintiffs affidavit of documents was considered to be conclusive: Mulley v Manifold. Now you can apply under Order 34 rule 1 where a party makes insufficient discovery for the Court to order discovery on terms it thinks fit. You then apply under Order 34 rule 21(3) where there is insufficient discovery and ask the Court to get the Defendants to make a statement about whether they have ever had the letter in their possession or power (which they still seem to do).
Discovery is usually insufficient when on the face of it or from admissions or other documents, the Court has reasonable grounds for being fairly certain that there were other relevant documents which ought to have been discovered; Nettleford and Beecham. Reasonably requires a civil onus and it says fairly certain, not absolutely certain. Here the omission is not evidence on the face of the document though you could argue that it is obvious that a report should have been written. You are aware of the omission because of inquiries made down at the child care centre. Nonetheless they have admitted to writing the report and have claimed privilege (see below). It would also be worth writing to the Deps solicitors referring to the fact that they can be held in contempt of court knowingly colluding in an incomplete affidavit: Myers v Ellman.
(2)Privilege
(a)LPP for the report
The department has claimed privilege because the report was for the purposes of instructing law offices in the event of litigation. This raises the issue of legal professional privilege. Part 3.10 of the evidence Act is incorporated into the SCR by Order 34 rule 1A. this includes ss 118 and 119 of the Evidence Act. 119 relates to communications made with a solicitor for the purpose of existing or anticipated litigation. Here they are claiming that it was information to be communicated with their law officers for anticipated litigation. Whether there is anticipated litigation depends on whether they have a reasonable apprehension of being sued: Afred Crompton. Here it seems unreasonable to expect that they might be sued on the basis of every letter of complaint but in this case they were sued so maybe the anticipation was reasonable. However, LPP does not extend to cover things lodged with a legal adviser for the purpose of obtaining immunity: Packer v DCT. It may be seen to be abusing the privilege if they claim all reports as confidential for this reason.
LPP also only applies to legal practitioners: Waterford v Cth. However as they are discussing things with law officers then presumably these officers have been admitted as legal practitioners and so are covered. But the document in question was prepared by an officer not a law officer, but here it was for the purpose of litigation so it should be covered. Even if the original document is not privileged, if it is now in the hands of the legal officer it may be: Propend Finance.
They might also claim under s118 which deals with advice rather than litigation proceedings and covers confidential communications between client and legal adviser for the dominant purpose of obtaining confidential legal advice. Here the HC has adopted the sole purpose test: Grant v Downs but the ACT still has the dominant purpose test as stated in the evidence Act: Carnell v Mann. Here the document was information from an officer to a law officer, not the other way around. But it was communicated for the dominant purpose of advice so it may be covered: Afred Crompton.
They might also claim that it is not in the public interest for them to disclose the information at this stage – see test below. They cannot claim the privilege against self-incrimination because that is only a human right and will not extend to a department: Capitals EPA v Caltex.
(b) Public Interest
Order 34 rule 1A (c) imports s130 of the Evidence Act which allows evidence to be excluded if it relates to matters of state and the public interest in knowing is outweighed by the interest in secrecy. What is a matter of state? That is defined, though not limited by, s130 to include evidence that would prejudice the prevention, investigation or prosecution of an offence or something for a civil penalty. It may also prejudice the proper functioning of government. There are two types of privileged documents – those that are privileged as a category and those that are privileged because of their individual content: Sankey v Whitlam and Alister v Queen. Here it seems to be related to the specific content of the document rather than survey information in general.
When deciding whether to exclude something on the basis of public interest, the Court must engage in a weighing process. It must weigh the harm done b y disclosure and non-disclosure to see which is worse: Sankey v Whitlam. To avoid a full exclusion of the evidence the Court may apply conditions on the disclosure so that it cannot be leaked or used in certain ways: PD v Australian Red Cross, Central QLD Cement. Query whether the information could be released but names suppressed. Also, how is this matter really a matter of national importance as the scheme is isolated in effect and just a trial. The Court will not necessarily accept that it is a matter of state just because the department says so, it is up to the Court: Sankey v Whitlam.
Part B
You are suing the Commonwealth. This is the Crown and can be done under ss56 and 61 of the Judiciary Act Cth, the department is not immune under the shield of the Crown.
A Trade Practices Claim for a group should be made in the Federal Court of Australia under section 33C. when claiming this you need to set out each step of the TPA action in the pleadings: Hunt Contracting. You need to be careful about what you claim because general social engineering is not a claim at law and could be thrown out. You need to list the actual misrepresentations and prove that they were in trade and commerce. A more general claim might be struck out for ahowing no cause of action under Order 2 rule 4.
The FCA has an opt-out procedure for group actions which will allow these parties to make a claim for a group that is general (though properly described) and the consent of each party in not required: s33E(1). Instead all parties of the group will have a right to opt-out of the litigation within a specified time: ss33J. if they do not opt out then they will be bound under res judicata for the issue: s33ZV.
The procedure is set out under 33C and requires 3 things. You need (a) 7 or more claimants, here you have 8 to start with and the claim could include others who have been affected. Be careful if any of these 8 opt out and you fall below 7.
(b) The claims need to arise out of the same, similar or related circumstances. There are three sufficient relationships of widening ambit: Zhang. However, the matters must be truly the same as there is a point where a group is so remote that it cannot be grouped: Shang and Connell. It is important to ask what is the matter that they are claiming about. The claim is not about social engineering per se, it is about specific representations made about grandmothers feeling better etc if the scheme is introduced. It is important to consider the evidence for this – whether there were oral and written communications. If there are both, or the communications were made orally to different groups then you need to see if they really are the same: Connell. Here it seems to be more likely to be oral communications but there might also be a leaflet, or something. In some cases, it might be better to drop different evidence that is not common to the ggroup, such as the oral representations, if they also receive the same written representations: contrast Connell and Bishop.
(c) The claim also has to give rise to substantially common issue of law or fact. Substantial here means real or of substance rather than just large special: Wong v Silkfield. It must be the substantial issue, not just the number of issues (though more than one issue is allowed): Connell. Here they are all claimin in relation to common misrepresentations which give rise to a common issue. The actions are slightly different but the misrepresentations for a substantially common issue here – not just one of many issues or a minor issue.
The action can be commenced even though the surcharges represent different contracts with different people – s33C(2)(b)(i) – because they all arise from the same policy and representations. Also the fact that the services of each grandmother are different and will lead to a different claim in damages (eg lost babysitting vs lost computer help) will not stop a group action: s33(c)(2)(a)
The Court can disband the action if it is satisfied it is in their interests of justice: s33N(1). Also group settlement will need the approval of the Court: s33V. In terms of who will represent and who will be represented, it appears that P may be a likely candidate to be a representing party. However, you need to warn him the issue for costs as the represented parties are not liable for costs but the representing party is: s43(1)(a). Here they might argue that they are not liable for costs in any case because the action is pursued in the public interest. Courts have the discretion not to award costs in such cases: Oshlack, but the definition of public interest litigation (per McHugh). Also it is unlikely to apply here because even if social engineering is a public issue, they are seeking individual damages rather than litigating purely for the public interest: Qantas v Cameron.
You would not apply to have the proceedings joined with any in the supreme court because of the costs involved. Also it is very hard to move group actions because different courts have different rules and remedies: Poignand v NZI. They could take a claim in misleading representations generally (not TPA) to the supreme court and attempt to have a group action under Order 19 Rule 10 or just a joinder of causes of action. This is an opt-in procedure: Order 6 Rule 2(b). This might not be good for costs because each party is on the record so may have to pay costs, although Toohey and Gaudron said that they would not be liable in Carnie v Esanda.