FEDERAL COURT OF AUSTRALIA

Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 4, 8 and 11 of the notice to produce dated 4 July 2016 served by the applicant on the respondent pursuant to r 30.28(1) of the Federal Court Rules 2011 (FCR) be set aside.

2.    Paragraph 7 of the notice to produce dated 4 July 2016 served by the applicant on the respondent pursuant to r 20.31(1) FCR be set aside.

3.    The interlocutory application filed on 25 July 2016 (the interlocutory application) otherwise be dismissed.

4.    The applicant pay the respondent’s costs of and incidental to the interlocutory application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    By an interlocutory application filed on 25 July 2016, the respondent seeks to set aside certain paragraphs of two notices to produce, each of which is dated 4 July 2016. One notice to produce was issued pursuant to r 20.31(1) of the Federal Court Rules 2011 (FCR). The second notice to produce was issued pursuant to r 30.28(1) FCR. In submissions, the parties referred to these as the Affidavit Notice and the Production Notice, respectively. I will use these descriptions in these reasons. The respondent seeks to set aside paragraph 7 of the Affidavit Notice and paragraphs 4, 6, 8 and 11 of the Production Notice.

The production of “files”

Background

2    It is convenient to deal with the application in relation to paragraph 7 of the Affidavit Notice and paragraphs 4 and 8 of the Production Notice together because they involve, essentially, the same subject matter, namely the requirement to produce certain innominate files. These are files which one of the respondent’s proposed witnesses, Mr Kelly, says he reviewed as part of a process of determining whether certain corporate trustee and custodianship matters were the “right fit” for the respondent, taking into account the profile, culture and business priorities of the Public Trustee, including reputational risk.

3    I pause, at this stage, to note that, in this proceeding (the hearing of which has commenced), one important issue between the parties is the reason why, on 6 July 2007, the respondent resigned as the trustee for noteholders of unsecured notes issued by the company now called Octaviar Investment Notes Limited (in liquidation) (OIN).

4    In opening its case, the applicant advanced the contention that the respondent resigned because of his concerns arising from a financial report provided by PricewaterhouseCoopers on 8 June 2007. The applicant says that this case finds substantive expression in paragraphs 92N and 92AH1 of the further amended statement of claim and certain other paragraphs referenced therein.

5    In opening his case, the respondent said that he resigned as trustee as a result of an assessment of business priorities within the Public Trust Office (PTO) following a review. This review is referred to in Mr Kelly’s affidavit and was undertaken because of an instruction given by the then Public Trustee, Mr Klein.

6    In this connection, in paragraph 24 of his affidavit, Mr Kelly says:

At around the time of the discussion that Anita Hicks and I had with Mr Klein, he instructed me to systematically review each of the corporate files and report back with the results of my review. I did this on a progressive basis over a number of months. I commenced with files that Mr Prostamo, Ms Hicks and Mr Craig Dean nominated to me as file priorities. Mr Prostamo was responsible for the Investments Branch of the PTO in his position as Director of Investment Services. While I conducted the review for Mr Klein, Mr Prostamo remained as Director of Investment Services, undertaking his day-to-day activities and exercising his delegations. Ms Hicks and Mr Dean were Managers within the Investments Branch who reported to Mr Prostamo. Ms Hick’s title (as indicated earlier) was Manager Investment Services and Mr Dean’s title was Business Support Manager.

(Emphasis added.)

7    In paragraph 31 of his affidavit, Mr Kelly says:

As mentioned earlier, at around this time, I had discussions with Ms Hicks and Mr Dean. From Ms Hicks and Mr Dean I obtained an overview of the Investment Program. I asked them to advise me of the main file priorities that they saw within the Program. From memory, they identified four files. I had a similar discussion with Mr Prostamo. My review started with those four files. I then reviewed a fifth file.

(Emphasis added.)

8    There are, therefore, five “files” to which Mr Kelly refers. None of these “files” concerns the notes issued by OIN or the respondent’s trusteeship in relation to those notes. They concern other engagements undertaken by the respondent.

9    Paragraph 7 of the Affidavit Notice calls for the production of “the four files referred to in paragraph 31” of Mr Kelly’s affidavit. As I have noted, the Affidavit Notice has been issued under r 20.31(1) FCR. Rule 20.31(1) provides that a party may serve on another party a notice to produce for the inspection of “any document mentioned in a pleading or affidavit” filed by the other party.

10    Paragraph 4 of the Production Notice calls for the production of “[t]he files referred to in [Mr Kelly’s affidavit] at paragraph 24”. Paragraph 8 of the same notice calls for the production of “[t]he five files referred to in [Mr Kelly’s affidavit] at paragraph 31”. I note that both paragraphs of the Production Notice refer to Mr Kelly’s affidavit having been made on 22 June 2016. This is obviously an error. The affidavit was made on 21 June 2016. Nothing turns on that error.

11    Further, the debate before me has proceeded on the basis that the files referred to in paragraph 24 of Mr Kelly’s affidavit are the same as the “four files” referred to in paragraph 31 of his affidavit.

The respondent’s objections

12    The respondent submits that, in paragraph 31 of his affidavit, Mr Kelly does not “mention” a document in a way that would engage r 20.31(1) FCR. The respondent argues that Mr Kelly’s reference to the “four files” is really no more than a reference to the “matters” used elsewhere in his affidavit to refer to the subject of his review. The respondent submits that r 20.31(1) FCR is engaged only where there is a direct allusion in the pleading or affidavit to a document itself or to a class of documents rather than to a mere body of information which may or may not be in documentary form. He submits that it is not enough to engage the rule that one can infer that the information “mentioned” in the pleading or affidavit might take some documentary form: King v GIO Australia Holdings Ltd [2001] FCA 1487 at [12]-[16]; Welker v Rinehart [2012] NSWSC 588 (Welker). Indeed, in Australian Competition and Consumer Commission v Australialink Pty Ltd (2009) 177 FCR 35; [2009] FCA 265, Spender J said (at [20]):

The observations by Moore J in King from [12]-[17] … make it plain that there has to be a direct allusion to a document or documents. It is insufficient to refer to a transaction or information, even though it appears almost certain that the transaction must have been effected by, or the information contained in, a document.

(Emphasis added.)

13    In that case, Spender J was dealing with a notice seeking the production of “complaints” that had been referred to in an affidavit. His Honour observed (at [20]) that “complaints” can easily comprehend both written and oral complaints. However, the word “complaints”, as used in the affidavit, could not be said to be a reference to a document, even though there may have been strong grounds for thinking that some of the complaints may have been in writing.

14    In Selth v Australasian Barrister Chambers Pty Limited (No 2) [2016] FCA 46 (Selth), Greenwood J said (at [16]):

…The precise particular question that needs to be addressed, in relation to such a notice, is whether or not the affidavit actually and directly refers to the document sought or is sufficiently precise that one can say that there is a document mentioned in the sense that the rule uses that term.

15    This objection is specifically directed to paragraph 7 of the Affidavit Notice. It is not an objection that can be made in respect of paragraphs 4 and 8 of the Production Notice which has been issued under r 30.28(1) FCR. For practical purposes, the point is an arid one if the call of paragraphs 4 and 8 of the Production Notice is properly made.

16    As to paragraphs 4 and 8 of the Production Notice, the respondent submits that there are three reasons why these paragraphs should be set aside.

17    First, the documents sought by these paragraphs do not have an apparent relevance sufficient to justify their production. The respondent says that these files relate to other debenture note issues or custodian matters which are not the subject of this proceeding. As such, they are unlikely to add to the relevant evidence in the case.

18    Secondly, the respondent submits that, by calling for these files, and thus all the documents in them, it would seem that the applicant is using the Production Notice either as an alternative to further discovery or to engage in a “fishing” exercise.

19    Thirdly, the respondent submits that compliance with these paragraphs of the Production Notice would be unduly burdensome in light of the evidence adduced on this application. This evidence is given by the respondent’s solicitor, Mr Sharry, in an affidavit made 25 July 2016, which was corrected in some respects by a supplementary affidavit made by Mr Sharry on 8 August 2016.

20    By way of broad summary, Mr Sharry says that the five files comprise material that would constitute approximately 85 lever arch files of material. This does not include electronic records that may exist, such as documents appearing on the respondent’s internal electronic directory or emails. It is not currently known how much electronic material would form part of the five files.

21    The respondent says that if he were required to produce the documents forming the presently known “hard copy” files, then it would be necessary to review each document prior to production to identify any claims of legal professional privilege or claims of confidentiality.

22    In his affidavits, Mr Sharry says that he has not reviewed the documents in the hard copy files, but he would expect that they would contain a significant amount of both privileged and confidential material. He estimates that costs of $33,430 would be incurred in conducting such a review and producing the documents. He says that the documents would be reviewed and produced in an electronic format, consistently with the way documents have been produced in the proceeding to date. He estimates that the costs of this work would be approximately $25,451.80. Thus, he estimates that the respondent would be put to the cost of at least $58,881.80 in producing the documents sought in the relevant paragraphs.

23    Mr Sharry says that, should it be necessary to also produce electronic records maintained by the respondent, “significantly more work would need to be conducted to identify, isolate, retrieve, review and produce those electronic documents”. Mr Sharry says that this process “is extremely time-consuming”. He says that it would be unlikely that this work would be able to be completed before the resumption of the trial in this proceeding on 5 September 2016.

24    I permitted some limited cross-examination of Mr Sharry on this evidence. The evident purpose of the cross-examination was to demonstrate that, by reference to a regime proposed by the applicant, not all the work referred to by Mr Sharry might be required. The cross-examination was also directed to establishing that, in general terms, Mr Sharry had over-estimated the time that would be required to conduct a review of the relevant documents.

25    It is not necessary for me to descend to the detail of the cross-examination. I accept that, if production were to be required, some costs (such as coding and processing costs) could be avoided by not producing the documents in an electronic format. However, I do not think that the general tenor of Mr Sharry’s evidence was undermined by that fact.

26    What is more important is that, in the course of submissions, it emerged that the respondent has construed paragraphs 4 and 8 of the Production Notice and paragraph 7 of the Affidavit Notice as calling for the production of the files in their present state rather than in their state at the time that Mr Kelly says he reviewed them, namely around May 2007.

27    With respect, I do not think that the respondent’s construction is a sensible way—or, indeed, the correct way—in which to understand the relevant paragraphs of the notices to produce. The context in which each paragraph falls to be construed is provided by the nominated paragraphs from Mr Kelly’s affidavit. In those paragraphs, Mr Kelly is talking about the “files” he reviewed at the time. There is no evidence before me as to the state of the “files” at that time. Mr Sharry’s evidence is directed to a different question. This circumstance obviously undermines the utility of his evidence and leaves me in a position where I have no reliable evidence of the real magnitude of the task, or indeed of the cost, of producing documents in response to these particular paragraphs of the notices to produce.

28    That said, I accept that it is likely that the documents to be reviewed will contain confidential and privileged material, although one cannot know the extent of that material in advance of the review having been carried out. The burden of the review, whatever it might be, would be no less simply because, once it is completed, one can then say that the amount of confidential or privileged material is less than one might have expected.

The applicant’s submissions

29    With respect to the application of r 20.31(1) FCR, the applicant submits that a document will be “mentioned” if it is described or referred to in a general manner or as part of an identified class of documents. In this connection, the applicant referred to Welker at [3] and relied on the passage from Selth at [16], which I have quoted above. The applicant submits that the relevant “files” are sufficiently identified in Mr Kelly’s affidavit and, moreover, are plainly capable of identification having regard to the way in which Mr Sharry has addressed the question of oppression in his affidavit.

30    With respect to the question of apparent relevance, the applicant relies on the summary of relevant authorities provided in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76; [2010] FCA 398, where I said (at [39]):

… Beaumont J in Arnotts (at 103) posed questions to the following effect: Does the material sought have an apparent relevance to the issues in the principal proceeding, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? In a similar vein, Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927 invoked the question whether the material that is sought “is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case”: see also Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147; [2005] FCA 510 at [10]; Cosco Holdings Pty Ltd v Cmr of Taxation (1997) 37 ATR 432 at 439–40. In Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13] and [35]–[38] Collier J addressed the issue by asking whether it appears to be “on the cards” that the document sought will materially assist the party on whose request the subpoena has been issued: see Alister v R (1984) 154 CLR 404 at 414; 51 ALR 480 per Gibbs CJ.

31    The applicant also relies on Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [23], where Wigney J said:

The common theme of these various statements of the applicable test of relevance in the context of subpoenas or notices to produce is that it is less stringent than the test of relevance that applies in the context of the admissibility of evidence. And where, as here, the proceeding is at a very early stage and the issues have not been clearly defined, the question whether documents sought by a subpoena have apparent relevance should not be approached too narrowly or rigidly. In such circumstances, the court should be wary of too readily excluding the possibility that a document or class of documents might at the end of the day be relevant to a fact in issue in the litigation. The court should not lose sight of the fact that the public interest requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available: Grant v Downs (1976) 135 CLR 674 at 685; referred to by the Full Court in Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at 143 [27].

32    The applicant submits that the files are adjectivally relevant because of the disputed question of fact concerning the reason why the respondent resigned as trustee of the notes issued by OIN. The applicant submits:

The Applicant is entitled to test Mr Kelly’s evidence as to the process which was undertaken which he says led to the decision to resign. The reasons for the Public Trustee’s resignation are a key element of a number of the pleaded causes of action, in particular, those based upon breach of fiduciary duty. It can thus hardly be said that the documents comprising the files which Mr Kelly says that he reviewed prior to the Octaviar file have no apparent relevance to the issues in the proceedings, and the evidence marshalled in relation to those issues.

33    In oral submissions, the applicant stressed that, in order to properly test Mr Kelly’s evidence as to the reasons why the respondent resigned as trustee of the notes issued by OIN, the applicant needs to be provided with the files on the other matters that Mr Kelly said he reviewed before undertaking his review of “the Octaviar file”. The applicant argued that these files would enable it to understand the review that was conducted in relation to each file and to understand what kinds of trust were considered to be an appropriate “fit” and what were not.

Consideration

34    It is convenient to consider, firstly, paragraphs 4 and 8 of the Production Notice. In order to do so, it is necessary to make some observations about the significance given in Mr Kelly’s affidavit to the “files” he reviewed.

35    In paragraph 21 of his affidavit, Mr Kelly says that, in around May 2007, the then Public Trustee, Mr Klein, asked him (Mr Kelly) to review the existing corporate trustee and custodianship matters being conducted within the PTO’s Investment Program and to make recommendations to Mr Klein about those matters. This was in the context of what Mr Kelly says was “a marked reduction in appetite by Mr Klein to conduct a corporate trustee business within the PTO”. In paragraph 24 (see [6] above), Mr Kelly says that Mr Klein’s instruction was to systematically review each file and to report back to Mr Klein. Mr Kelly says he did this on a progressive basis over a number of months. He says that he commenced with files that other officers in the PTO had nominated as “file priorities”. In paragraph 25 of his affidavit, Mr Kelly says that the purpose of the review was two-fold. One purpose was “to look at each of the corporate matters to re-consider whether they were a ‘right fit’ for the Public Trustee’s profile, culture and business priorities, taking into the reputational risk” described in paragraph 19 of his affidavit. In paragraph 19 of his affidavit, Mr Kelly says that his impression was that Mr Klein “wanted to ensure that the PTO maintained its excellent public reputation and was not impacted by any form of adverse publicity or political controversy which might result from any of the corporate trust matters”.

36    In paragraph 29 of his affidavit, Mr Kelly says that Mr Klein made the decision to resign from a number of existing corporate trusts. Mr Klein had made one decision to resign (in relation to one of the notes trusts administered by the PTO) prior to Mr Kelly commencing his review. Mr Kelly says that, soon after commencing his review, he was “instructed to arrange the resignation of the Public Trustee in another two matters …”.

37    It is after recounting these events that, in paragraph 31 of his affidavit, Mr Kelly refers, firstly, to “four files” and then a “fifth file”. In paragraph 31, he says that these files were identified by others as the main “file priorities” within the Investments Program of the PTO. He says that he started with the “four files”, and then reviewed a “fifth file”. In paragraph 32 of his affidavit, Mr Kelly expresses his belief that “the Octaviar file” was the sixth file that he reviewed.

38    In paragraphs 73 to 76 of his affidavit, Mr Kelly describes the manner in which he reported to Mr Klein following his review of “the Octaviar file”. In paragraph 76, Mr Kelly says that he was going to recommend to Mr Klein that the Public Trustee should resign but, before he did so, Mr Klein said “resign the Public Trustee”.

39    I think it is fair to say that, on the face of his affidavit, Mr Kelly only mentions the earlier five files in a prefatory way to identify the sequence in which he came to review “the Octaviar file”. Mr Kelly does not identify or otherwise describe or discuss the five files he reviewed or, indeed, any other files he reviewed subsequently (other than “the Octaviar file”). He does not describe the nature of the engagements covered by the five files or how he went about reviewing them or what criteria he used in undertaking his review, beyond having earlier said that one purpose of the review was to consider whether each of the PTO’s corporate matters was the “‘right fit’ for the Public Trustee’s profile” (see [35] above). Mr Kelly does not advance the position that any one or more of the five files had any relevance to or bearing upon his review of “the Octaviar file”. He does not suggest that any of the files he had reviewed earlier had any similarity to “the Octaviar file”. He does not suggest that these files raised any issues that were in any way similar to the issues he considered in reviewing “the Octaviar file”; nor does he rely on any differences. Mr Kelly does not call in aid any of the five files as providing any justification for the views he expressed in his affidavit concerning his review of “the Octaviar file”. He does not even describe the outcome of his review of these files. His only evidence about the files is that “four files” were advanced by others as having a priority; that he reviewed these files; that he subsequently reviewed a “fifth file”; and then came to review “the Octaviar file”.

40    In opening its case, the applicant has placed a particular complexion on the reason why the respondent resigned as trustee of the notes issued by OIN. The applicant has made this an important plank in its case. In his affidavit, Mr Kelly explains his review of “the Octaviar file”. Plainly, the applicant is entitled to test Mr Kelly’s evidence in this regard, and also to put to him the applicant’s case theory as developed in its opening. However, I cannot see how it can be said that, on the pleadings, the openings, the evidence tendered in the applicant’s case in chief (which has now closed, subject to the cross-examination of its expert witnesses) or in Mr Kelly’s affidavit, the five files that Mr Kelly says he reviewed, before he came to review “the Octaviar file”, have any relevance beyond the fact that “the Octaviar file” was not the first file, but the sixth file, that Mr Kelly reviewed.

41    I am far from persuaded that the documentary embodiments of the five files have, themselves, an apparent relevance to the issues I will be called on to decide. They do not become relevant in the requisite sense simply because the applicant wishes to carry out an investigation to see whether they might possibly contain information that it can deploy in its case. Indeed, it is tolerably clear that, in substance, the applicant is “fishing” for information: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254. This is an impermissible use of the notice to produce.

42    It is clear that a lack of apparent relevance is a ground for setting aside a notice to produce: Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90; [1989] FCA 340 at 101-103; Seven Network Limited v News Limited (No 11) [2006] FCA 174 (Seven) at [6]. For this reason, paragraphs 4 and 8 of the Production Notice should be set aside.

43    I now turn to consider paragraph 7 of the Affidavit Notice. In my view, the “mention” of the “four files” in paragraph 31 of Mr Kelly’s affidavit is such that r 20.31(1) FCR is engaged. I am satisfied that Mr Kelly’s reference to the “four files” in this paragraph is a direct allusion to the documentary record maintained by the PTO, not simply to the broader notion of “matters” with which the respondent was then dealing. However, the Court retains control over its process. Paragraph 7 of the Affidavit Notice can stand in no better position than paragraphs 4 and 8 of the Production Notice. Thus, as with paragraphs 4 and 8 of the Production Notice, the applicant must establish the apparent relevance of the “four files” as a body of documents: Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120 at [12]; Seven at [7]; Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739 at [33]-[35]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6]. It has not done so. Accordingly, for this reason, paragraph 7 of the Affidavit Notice should also be set aside.

The production of unredacted documents

Background

44    Paragraph 11 of the Production Notice seeks the production of unredacted versions of certain documents. Redacted versions of these documents were produced pursuant to orders for standard discovery given in accordance with r 20.14(1) FCR:

(1)    If the Court orders a party to give standard discovery, the party must give discovery of documents:

(a)    that are directly relevant to the issues raised by the pleadings or in the affidavits; and

(b)    of which, after a reasonable search, the party is aware; and

(c)    that are, or have been, in the party’s control.

45    Further, on 23 December 2015, a further order for discovery was made of documents “directly relevant to the issues raised by the pleadings”, which fell within certain categories.

46    On each occasion, the touchstone for discovery, and consequent production, was the direct relevance of the document to an issue raised by the pleadings. As Besanko J observed in Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354; [2009] FCA 12 (Egglishaw) at [25], in such cases relevance is not determined by the order of the Court but by the party giving discovery having regard to the issues in the case and the criteria provided by rules, such as r 20.14(1) FCR.

47    Further, in the present case, the parties agreed to a discovery protocol in terms which provided for the redaction of documents:

7.    Redaction

If one or more parts of a document comprise information which is:

(a)    privileged;

(b)    not directly relevant to an allegation in issue in the proceedings; or

(c)    confidential;

that part or parts may be masked or redacted accordingly.

Where native electronic documents are to be masked, the documents will be rendered to PDF and masked accordingly.

The respondent’s objections

48    The respondent submits that, under the agreed discovery protocol, it was entitled to redact documents on the basis of relevance and confidentiality; the applicant has not demonstrated any need to see the redacted portions; and that the applicant is impermissibly seeking to use the Production Notice as an alternative to an application for further discovery.

49    The respondent says that the documents in question record communications concerning his role as trustee of a trust or custodian of a managed investment scheme, other than the trust the subject of this proceeding. He says that the redactions have been applied because the communications are not relevant, and he has obligations to keep confidential information with respect to other trusts and custodianships. He also says that the redactions do not detract from the proper understanding of the documents or impact on their comprehensibility.

50    In advancing this challenge, the respondent also points to the fact that all but two of the documents in question post-date his resignation as trustee of the notes issued by OIN.

51    The respondent also says that, on previous occasions when the question of redacted documents was before the Court, the applicant did not press for orders that it be provided with unredacted copies of documents which had been redacted for relevance and confidentiality, even though that relief was claimed. The respondent submits that, by this conduct, the applicant has abandoned any claim to access to the redacted portions of the documents. Alternatively, the respondent submits that, as a matter of case management, the Court should not allow the applicant to raise this issue now after the trial of the proceeding has commenced and given that, on two previous occasions, the applicant has chosen not to advance its claim to have access to those parts of the documents that have been redacted for relevance and/or confidentiality.

The applicant’s submissions

52    The applicant submits, firstly, that, notwithstanding the agreement between the parties as to redactions, the discovery protocol also preserved the right of the parties to call for the original of a particular document.

53    Secondly, the applicant submits that the redacted portions meet the threshold of “apparent relevance” due to the case that the respondent seeks to put forward in relation to his resignation as trustee of the notes issued by OIN in the context of a broader review of corporate trust services.

54    Thirdly, the applicant disputes that it is advancing paragraph 11 of the Production Notice as a substitute for discovery, in the sense in which that objection is dealt with in the authorities.

55    Fourthly, the applicant submits that it does not matter that, in a previous application, it did not press for the unredacted versions of the documents it now seeks by paragraph 11 of the Production Notice. It says that, in any event, at the time of the previous applications, Mr Kelly’s affidavit (which, it says, brings into play the other corporate trustee files) had not been filed.

56    In the course of oral submissions the applicant took me to the redacted documents. A number of these documents are duplicates. The applicant pressed on me the need to see the redacted portions of the documents because of the context they would provide for understanding the unredacted portions.

Consideration

57    In the course of submissions, the parties referred me to two conflicting lines of authority on the question of when it is permissible to redact documents produced on discovery. The respondent relied on Egglishaw at [25] and also CSL Ltd v Novo Nordisk Pharmaceuticals Pty Ltd (2010) 87 IPR 134; [2010] FCA 671 at [14] to advance the practice of redaction approved by Hoffman LJ in GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 in cases where discovery is given by reference to relevance and not by ordered categories. The applicant relied on Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 at [92]-[99] to advance the contention that, regardless of whether discovery is ordered by reference to relevance or categories, and save in cases where a privilege is claimed, the whole document should be produced unless there is prior agreement to the contrary from the opposing party or some prior dispensation by the Court.

58    It is not necessary for me to embark on a consideration of these cases because the parties have agreed on when redactions can be made. The only question is whether, in light of that agreement, there is any reason to go behind it and order that the documents presently in contention should be produced in an unredacted form.

59    Having been taken to the documents in their redacted form, I am not persuaded that they should be produced in an unredacted form. The applicant’s submission is essentially this: in order to understand the unredacted portions of the documents, it is necessary to see the redacted portions because the way in which the respondent was dealing with other trust matters at the time will provide a context within which to consider how the respondent was dealing with its trusteeship in respect of the notes issued by OIN.

60    I do not accept that reasoning. I have already discussed why I do not accept that the files referred to in paragraphs 24 and 31 of Mr Kelly’s affidavit have an apparent relevance to the issues I will have to decide in this case. The same reasoning applies in relation to the redactions. There is no question that the redactions are in respect of different engagements undertaken by the respondent. The applicant has not pointed to any material that indicates any possible relationship between those engagements and the respondent’s engagement as trustee of the notes issued by OIN. Further, the unredacted passages are clear and comprehensible. The applicant has not established that their comprehensibility depends on any additional matter, let alone any matter that has been specifically redacted for relevance on the basis that it deals with a different engagement. I am satisfied, therefore, that paragraph 11 of the Production Notice should be set aside.

Resignation letters

61    Paragraph 6 of the Production Notice calls for the production of resignation letters for “two matters” referred to in paragraph 29 of Mr Kelly’s affidavit (see [36] above). The resignation letters have been produced in a form in which the text identifying the trusts from which the respondent resigned has been redacted. The matter was not addressed in the respondent’s written submissions. It was, however, addressed briefly in oral submissions.

62    The discovery protocol does not apply to the letters. The respondent sought to justify the redactions only on the basis of confidentiality. I am unable to see how the identity of the trusts could be confidential. On raising my concerns in that regard, the respondent suggested that the identity of the trusts might be confidential because, although the respondent had resigned from his trusteeship in each case, no new trustee might have been appointed. If that were truly a justification for redacting the resignation letters, the fact that no new trustee has been appointed (if that be the case) could have been the subject of evidence and explored on this hearing. The only party knowing the true position is the respondent himself. He has not put on evidence of that fact or of any other basis on which confidentiality could properly be claimed.

disposition

63    For these reasons, paragraph 7 of the Affidavit Notice and paragraphs 4, 8 and 11 of the Production Notice should be set aside. The respondent has achieved substantial success on the application. He did not succeed in setting aside paragraph 6 of the Production Notice, but this matter occupied little time at the hearing. The respondent should have his costs.

Associate:

Dated:    18 August 2016