FEDERAL COURT OF AUSTRALIA

Kenquist Nominees Pty Limited v Campbell (No 3) [2017] FCA 1230

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended interlocutory application dated 18 September 2017 be dismissed to the extent that it seeks the relief claimed in paragraphs 1 to 5 thereof.

2.    The applicant pay the first to third respondents’, fourth respondent’s, fifth respondent’s, and QRxPharma Limited’s costs of and incidental to the applicant’s claims for relief referred to in Order 1.

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 amended interlocutory application filed on 18 September 2017, the applicant seeks orders pursuant to r 20.17(2)(c) and r 20.17(3)(b) of the Federal Court Rules 2011 (Cth) (FCR) to the effect that the first to fifth respondents (the respondents) file updated or more detailed lists of documents describing with greater particularity the documents in respect of which claims of privilege from production are made, and the grounds of the claimed privilege. The applicant contends that if this further particularity is not provided, it should be ordered that the claimed privilege be taken to have been abandoned.

2    The nature of the applicant’s claim in the principal proceeding, which is a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the Act), is described in Kenquist Nominees Pty Ltd v Campbell (No 2) [2016] FCA 911 at [3]–[15].

3    In essence, the applicant claims, on its own behalf and on behalf of persons who obtained an interest in ordinary shares in QRxPharma Ltd (QRx) under certain rights issues, placements and plans, or otherwise on the financial market operated by the Australian Securities Exchange Limited during the period 6 November 2009 to 25 June 2012, that QRx failed to disclose certain information that would have been material to making an investment in QRx. The applicant alleges that QRx’s failure to disclose this information constituted, or resulted in, contraventions of various statutory provisions. The applicant alleges that the respondents, in their various capacities (described below), were involved, in various ways, in these contraventions.

4    QRx has not been sued in the principal proceeding. However, the relief which the applicant seeks in the amended interlocutory application affects, at least potentially, QRx’s legal interests. For this reason, and for the purposes of determining the present dispute and matters incidental thereto, I made orders on 15 September 2017 providing for the limited joinder of QRx as a party.

Background

5    The Court’s Central Practice Note: National Court Framework and Case Management (CPN–1) acknowledges that discovery can be extremely burdensome. It expresses the expectation that the parties and their representatives will take all steps to minimise that burden: [10.3]. It expresses this expectation in the context of the overarching purpose of the Court’s civil practice and procedure, which is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see ss 37M and 37N of the Act; see also [7.1]–[7.4] of CPN–1.

6    CPN–1 stresses the need for cooperation between the parties and their lawyers:

7.3    This co-operation requires (and the Court expects) that the parties and their lawyers think about the best way to run their cases conformably with the overarching purpose. The parties and their lawyers can expect that the Court will engage with them in a dialogue to achieve the overarching purpose. The Court's Rules should never be viewed as inflexible. The overarching purpose includes the elimination of unnecessary "process-driven" costs. The Court expects parties and their lawyers to have in mind at all times the cost of each step in the proceeding, and whether it is necessary.

7.4     While the Court will manage the issues in dispute, the proceeding is always the parties' proceeding. In everything they do, the parties should approach their role as the primary actors responsible for identifying the issues in dispute and in ascertaining the most efficient, including cost efficient, method of its resolution.

7    With specific reference to discovery, CPN–1 provides at [10.5]:

10.5    Prior to the Discovery Applicant approaching the Court with a Request, the Court expects that the parties will have discussed discovery issues between them and, if possible, agreed on a protocol for discovery. Such a protocol may involve consensual measures agreed to by the parties which may obviate the need for strict compliance with the Federal Court Rules (such as avoiding the need for a list of documents). The Court will consider the parties' suggestions and may approve them if the Court considers them appropriate.

8    CPN–1 also provides at [10.2]:

10.2     Discovery is dealt with in Part 20 of the Federal Court Rules, with which parties should be familiar. In particular, it is to be recalled that no party is to give, and so no party has the right to, discovery (in the sense of provision of a list of documents under the Federal Court Rules) without an order (r 20.12). A discovery applicant should not make a request unless it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible (r 20.11).

9    It is also appropriate to refer to the Court’s Technology and the Court Practice Note (GPN–TECH), one purpose of which is to facilitate and to provide guidance on the effective use of technology in the discovery process: [1.3].

10    In this connection, [3.3] to [3.5] of GPN–TECH provide:

3.3    At an appropriately early stage in a proceeding that may be benefited by an electronic discovery processes, and before the Court may consider making an order for electronic discovery, the parties will be expected to have:

(a)     discussed and agreed upon a practical and cost-effective discovery plan having regard to the issues in dispute and the likely number, nature and significance of the documents that might be discoverable; and

(b)     conferred for the purpose of reaching an agreement about the protocols to be used for the exchange and management of documents in electronic form and other issues relating to efficient document management in a proceeding.

3.4    The Court may require the parties to address these issues at the first case management hearing or any other subsequent case management hearing (see Part 8 of the Central Practice Note).

3.5     In all situations, any discovery plan and document management protocol considered by the parties must be proportionate to the nature, size and complexity of the case and should not amount to an unreasonable economic or administrative burden on the parties or the Court.

11    The Court has developed a template Standard Document Management Protocol (SDMP), which summarises the terms under which information may be electronically exchanged between the parties, typically during the discovery process. In recognition that each case will differ in its technological requirements, GPN–TECH encourages the parties to develop a customised version of the SDMP, whenever it is appropriate to do so, to ensure the most effective and efficient use of technology in the proceeding: [3.7].

12    GPN–TECH further provides:

3.11     Any alternative protocol for the exchange and management of documents should:

(a)    involve consensual measures agreed to by the parties which may obviate the need for strict compliance with the Federal Court Rules (such as avoiding the need for a list of documents) (see also Part 10 of the Central Practice Note). In such cases, the parties should seek to reach agreement on the most efficient and cost-effective way to manage documents and notify the Court of their proposed protocol so that the Court may consider it;

(b)    be provided to the Court for consideration and approval and should not be used unless it is fully agreed to by the parties and accepted by the Court.

13    At a case management hearing on 19 August 2016, I made an order that the parties meet to discuss how to manage the giving of discovery. The evidence reveals that, prior to that time, the prospect of an agreed protocol for the exchange of electronic documents had already been raised between the parties themselves. In that regard, on 27 April 2016, the solicitors for the first to third respondents (the director respondents) advanced a draft protocol for the consideration of the other parties. In June 2016, the parties discussed amendments to the draft. On 8 September 2016, following the order that had been made on 19 August 2016, a “without prejudice” meeting was held between the parties.

14    At a further case management hearing on 28 September 2016, I made orders providing for the parties to finalise a protocol for the exchange of documents. On 27 October 2016, the parties reached agreement in that regard (the Protocol).

15    By this time GPN–1 and GPN–TECH had just come into effect. But, in relevant respects, both practice notes affirm the Court’s previous practice of encouraging parties to consider and agree upon innovative and appropriate steps to provide for effective document management practices in complex litigation, including in relation to the giving of discovery. The orders of 19 August 2016 and 28 September 2016 were made in that context.

16    From this brief background, it can be seen that the terms of the Protocol are the product of several months’ negotiation between the parties, facilitated in part by orders made by the Court.

17    In the course of oral submissions, the applicant sought to make much of the fact that no order has been made that specifically endorses the Protocol. It is true that no explicit order of that kind has been made, but it would not be correct to suggest that the expectation of the Court—and, I would have assumed, but for the present dispute, all the parties—has been anything other than that the discovery process would be governed by the Protocol. Indeed, in the normal run of case—and the present case is no exception—I would doubt the utility of a document management protocol that did not provide for the discovery process. Be that as it may, the context in which the orders of 19 August 2016 and 28 September 2016 were made shows, clearly enough, that the achievement of an agreed protocol and the giving of discovery were companion steps in the case management of the proceeding.

18    Indeed, the purpose of the Protocol is explained in clause 1.2:

1.2    The primary purpose of this document is to establish protocols for the electronic exchange of documents produced in answer to Subpoena and discovered documents between the parties in Federal Court of Australia proceedings No. NSD 1364/2015 (Proceeding). They are designed to minimise the document management and technology costs and to ensure that the parties are in agreement as to the format of the exchanged documents.

19    In oral submissions, the applicant sought to draw a distinction between the exchange of documents and the provision of a list of documents, in the discovery process. That distinction is illusory when considered against the scope of the Protocol itself.

20    In this connection, Section 13 of the Protocol provides for the form of the list of documents:

13.1    A list or report of the documents must be provided in either Microsoft Word or Microsoft Excel format and as a searchable multi page PDF, print enabled, and selection of text enabled, including the following fields and sorted in ascending document ID order:

(1)    document ID;

(2)    Document_Type;

(3)    Document_Date;

(4)     Title;

(5)    From (Organisation and/or Person);

(6)     To (Organisation and/or Person);

(7)     Confidential; and

(8)     Privileged.

21    I do not think that this section of the Protocol can be seen as anything but a reference to the list of documents required to be provided as part of the discovery process. In this connection, I have referred to the statement of purpose in clause 1.2 of the Protocol, which specifically identifies discovered documents and documents produced under subpoena as primary objects. Section 14 of the Protocol deals with documents produced under subpoena. Sections 13 and 14 can be seen as directed to the twin objects referred to in clause 1.2.

22    Quite apart from the list of documents itself, Section 11 of the Protocol provides for the format of the data that is otherwise to be exchanged between the parties. Amongst other things, it makes provision for an export table, which contains the main document information. It also makes provision for associated tables. One of these tables is the export_ extras table, which contains a number of fields, including Privileged and Basis for Privilege fields. The Privileged field identifies whether or not a document is subject to a claim of privilege from production. The values are Yes, No or, for documents that are privileged in part, Partial. The Basis for Privilege field identifies the nature of the claimed privilege according to three designations: legal professional privilege (LPP), common interest privilege (CIP), and without prejudice privilege (WPP).

23    As I understand it, these tables, taken with the list(s) of documents provided under Section 13 of the Protocol, provide a powerful tool which enables documents exchanged between the parties as part of discovery to be interrogated and manipulated for the purposes of the proceeding. These tables and the list(s) of documents are associated through the common field document ID—an alphanumeric sequence that uniquely identifies each document. Thus, in a real sense, the list(s) of documents referred to in Section 13, and the tables referred to in Section 11, of the Protocol do not stand apart from each other. To the contrary, the list(s) documents and the tables are integers of the one document management system to which the parties have agreed to adhere for the purposes of the proceeding.

24    It can be seen, therefore, that the Protocol provides for the individual and unique identification of documents for which privilege from production is claimed. It also provides for the grounds of privilege to be given with respect to each such document through the list of documents and the associated export_extras table.

25    On 28 September 2016, I also made an order that the parties give standard discovery in accordance with r 20.14(1), with production to be given in monthly tranches. For the reasons I have expressed, I am in no real doubt that it was understood that discovery was to be given in accordance with the Protocol, even though, at that stage, the Protocol remained to be agreed. At that time, the orders of the Court were that a protocol was to be finalised by 7 October 2016 with the first tranche of discovery to be given by 28 October 2016: see Orders 4 and 5.

26    It is convenient at this point to set out the requirements of r 20.17 FCR. Rule 20.17(1) provides that the list of documents must be in accordance with Form 38. Rule 20.17(2) provides more specifically:

The list must describe:

(a)    each category of documents in the party’s control sufficiently to identify the category but not necessarily the particular document; and

(b)    each document that has been, but is no longer in the party’s control, a statement of when the document was last in the party’s control and what became of it; and

(c)    each document in the party’s control for which privilege from production is claimed and the grounds of the privilege.

27    In certain respects, Section 11 and Section 13 of the Protocol supersede the requirements of r 20.17. Nonetheless, as I have noted, in respect of documents for which a claim of privilege from production is made, the Protocol requires that each document be identified and described according to cl 13.1 and the grounds of the privilege stated. In this regard, the Protocol conforms to the requirements of r 20.17(2)(c).

28    The director respondents and the fifth respondent have each served lists of documents which identify documents in respect of which QRx claims privilege on the ground of legal professional privilege. The fourth respondent has served lists of documents which identify documents in respect of which QRx claims privilege and which identify documents in respect of which the fourth respondent claims privilege. There is no longer any dispute between the applicant and the fourth respondent concerning the description of the documents in respect of which the fourth respondent claims privilege or the grounds on which privilege is claimed in respect of those documents.

29    QRx’s claims of privilege are not the director respondents’, the fourth respondent’s or the fifth respondent’s claims; nor are they claims which those respondents can waive. Should QRx’s claims be disputed, it will be for QRx to substantiate them.

The applicant’s position

30    The applicant’s interlocutory application is based on the contentious proposition that:

… (t)he purpose of a list of privileged documents is to enable the other party to the proceeding to identify the nature of the document over which a claim for privilege is made, and to allow that party to determine whether the claims for privilege have been properly made.

31    The essence of the present application is that, according to the applicant, each respondent has provided lists of documents that are “defective” in that the applicant is unable to determine whether the claims of privilege from production (that is, relevantly, QRx’s claims) have been properly made.

32    The applicant made clear that its present application is not based on scepticism of the claims made. Rather, it said that the descriptions of the documents are inadequate for the purpose of enabling it to determine whether the documents are properly the subject of such a claim.

33    The applicant addressed each respondent’s lists separately because, according to it, each was defective in materially different ways. However, the constant contention was that the lists do not comply with r 20.17(2)(c).

34    The applicant accepted that, at a general level, each of the director respondents’ lists describe the documents with reasonable particularity. However, the applicant submitted that none of the grounds of privilege have been identified. The applicant also noted that none of the documents are claimed to be confidential and none are identified as communications between solicitor and client. The applicant remarked that, with respect to 281 documents that are claimed to be privileged in part, only 13 have titles that contain the word “privilege”.

35    With respect to the fourth respondent, the applicant submitted that none of the grounds of privilege are identified in the lists with respect to documents in respect of which QRx claims privilege.

36    With respect to the fifth respondent, the applicant submitted that the lists identify the documents as being privileged or privileged in part, with the ground identified as LPP. However, the applicant submitted that, even in this regard, the fifth respondent’s lists do not comply with r 20.17(2)(c).

37    The applicant made special reference in its written submissions to the fifth respondent’s listing of “almost 50 file notes” which, it said, are not “described” within the meaning of r 20.17(2)(c) because no titles are given, in many cases no date is given, and in many cases no author is given. In oral submissions, it became apparent that the documents in issue greatly exceed 50 in number. The applicant developed its criticisms with reference to a number of examples.

38    As matters have developed, the fifth respondent is the only respondent who, according to the applicant, has not sufficiently described the documents in respect of which privilege is claimed. For those documents which have not been “described” because they have no title, author and/or date, the applicant submitted that the fifth respondent should serve updated versions of its lists of documents describing each privileged document and the grounds of the privilege so as to comply with r 20.17(2)(c); alternatively, the fifth respondent should provide a more detailed list in accordance with r 20.17(3)(b). The applicant submitted that the exercise of the discretion to order a more detailed list of documents should be informed by its need to determine whether a claim of privilege has been properly made. The applicant argued that this level of detail would be required to be given by a party asserting the privilege if, in fact, a challenge to the privilege were to be made.

The respondents’ positions

The director respondents

39    The director respondents, who were directors of QRx at the relevant time, submitted that they have discovered 281 partly privileged and 1,655 wholly privileged documents. In each case, the privilege claimed is QRx’s privilege, not that of the directors themselves.

40    The applicant’s complaints are directed to three lists of documents containing information in relation to these documents (16, 18 and 30 August 2017). As to form, the director respondents submitted that each list of documents complies with clause 13.1 of the Protocol. The director respondents submitted that the information provided with respect to the privileged or partly privileged documents also complies with the requirements of r 20.17(2)(c). In this connection, the director respondents submitted that r 20.17(2)(c) requires only a basic description of the document in question and an identification of the basis of the privilege claimed. No detailed description of the circumstances giving rise to the privilege is required. If the document is otherwise sufficiently described, it is enough to state the ground of privilege as, for example, “legal professional privilege” or similar.

41    The director respondents submitted that, in any event, any doubt as to the sufficiency of the lists of documents they have provided is resolved by the terms of the Protocol. The lists were prepared in accordance with the parties’ agreement, which had been reached in accordance with the orders and case management practice directions of the Court.

The fourth respondent

42    As I have noted, the fourth respondent, Morgans Corporate Ltd, which was appointed as the Lead Manager and Underwriter for QRx’s capital raisings, has filed lists of documents identifying claims of privilege which it makes, and claims of privilege which QRx makes. The fourth respondent submitted that, although it has identified QRx’s privilege claims, it is not in a position itself to articulate, from its own knowledge, the basis of those claims; only QRx is in a position to do so. Further, the fourth respondent pointed to the fact that it had invited the applicant to deal directly with QRx in relation to those claims.

43    QRx claims privilege from production in respect of 110 documents discovered by the fourth respondent. Of those documents, the lists of documents contain a description of each document by reference to sender, author, date and title. The remaining 10 documents are identified as attachments to specific emails that are part of the 100 documents. The fourth respondent submitted that the provenance of the 10 documents is clear. It submitted that if there was any concern about the description of those documents, then the applicant should have made a more specific enquiry.

44    The applicant originally challenged the sufficiency of the form in which the fourth respondent itself made claims of privilege. The applicant’s challenge in that respect is no longer pursued and the fourth respondent seeks an order for costs in relation to that part of the applicant’s interlocutory application. The basis for the fourth respondent’s application is that the fourth respondent offered, at an early stage, and before the interlocutory application was filed, to provide further particulars of the privilege claims it made. The fourth respondent submitted that, notwithstanding this offer, to which the applicant did not respond, the applicant proceeded to file its interlocutory application and claim relief against the fourth respondent in respect of those documents. As events have transpired, the fourth respondent has provided the further information, which appears to be the reason why the applicant no longer pursues this particular complaint.

45    Notwithstanding these matters, the fourth respondent submitted that the original list of documents it provided was sufficient to discharge its discovery obligations. Like the director respondents, the fourth respondent submitted that it had complied with r 20.17(2)(c). Like the director respondents it argued that a distinction should be drawn between the obligation to describe the basis for claiming privilege for the purposes of discovery, and the more extensive obligation to justify a claim of privilege at the stage where that claim is the subject of a substantive challenge.

The fifth respondent

46    The fifth respondent was QRx’s solicitor in relation to the capital raisings. The lists of documents provided by the fifth respondent identifies 250 documents which QRx claims are privileged in part, and 2,509 documents which QRx claims are wholly privileged. Like the other respondents, the fifth respondent submitted that it had given discovery in accordance with the Protocol and the requirements of r 20.17(2)(c).

47    The fifth respondent submitted that the applicant’s complaint concerning the “almost 50 file notes” was a discrete complaint that had been raised for the first time in the applicant’s written submissions. The fifth respondent submitted that this complaint was without substance because the Protocol itself stipulates that a document that is untitled or undated is to be recorded as such in the List of Documents. The Protocol does not require the identification of an “author” of a file note (unlike an email) and contains no field for such information.

QRx

48    QRx submitted that it has had no involvement in the negotiation of the Protocol or in the preparation of the lists of documents about which complaint is made. It said that its only involvement in the proceeding to date has been to comply with a subpoena served on it, and to inform the first to fifth respondents of the documents in their possession in respect of which QRx asserts a claim of legal professional privilege. QRx submitted that it should not be required to provide any further description because pursuing QRx in this regard should “not be a route for flanking or revisiting forensic choices made earlier by the [a]pplicant when the Protocol was negotiated”, and because the applicant’s arguments hinge on a mistaken assumption about the purpose of the requirement to describe privileged documents in discovery lists. In this latter regard, QRx submitted that the applicant has assumed, wrongly, that the purpose of describing such documents is to enable the receiving party to read the descriptions and evaluate whether the claims for privilege are “properly” made. QRx submitted that the purpose of such descriptions is different and more limited: it is to facilitate reliable retrieval of the document(s) in question, should an order for production be made.

Analysis

49    The first matter I should address is the requirements of r 20.17(2)(c). This has two aspects: the description of the document in respect of which a claim of privilege from production is made, and the statement of the grounds of the privilege.

50    In Interchase Corporation Ltd (in liquidation) v Grosvenor Hill QLD Pty Ltd (No 2) (1999) 1 QdR 163 (Interchase) de Jersey J (at 170) discussed the purpose to be achieved in identifying the documents in respect of which a claim of privilege from production is made. An understanding of this purpose bears on the extent of the description required. At 170–172, his Honour referred to a number of cases in which it has been held that the purpose of the description is to enable the Court to make an order for the production of the document should the Court consider it appropriate to make such an order. His Honour specifically rejected the proposition that the purpose of the description is to facilitate an examination of the validity of the claim of privilege that is made. In other words, the purpose of the description is to allow identification of the document for the purpose of retrieval, not for the purpose of assessing the validity of the privilege claim: see Taylor v Batten (1878) 4 Q.B.D. 85; Budden v Wilkinson [1893] 2 Q.B. 432; Lazenby v Zammit [1987] Tas.R. 54; Braegrove Pty Ltd v Bendeich [1993] 2 Qd.R. 239.

51    This approach has been adopted in this Court. In Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041 at [39], Logan J put the matter succinctly:

39    A party seeking disclosure is not entitled to have such a description as would enable the formation of a prima facie view as to the correctness of the claim of privilege.

52    The respondents submitted, and I accept, that the correctness of this proposition is implicit in Jagot J’s observation in Guy Carpenter & Company Pty Ltd v Grove (No 3) [2011] FCA 1250 at [4] that there is a difference between the obligation of a party providing verified discovery in accordance with the FCR, and the evidentiary onus to which a party may be subject if a claim of legal professional privilege is challenged. This approach was endorsed by Griffiths J in Domino’s Pizza Enterprises Ltd v Precision Tracking Pty Ltd (No 3) [2017] FCA 1063 (Domino’s Pizza) at [36].

53    In light of these authorities, it can be seen that the applicant’s explanation of the purpose of r 20.17(2)(c) is erroneous. This undermines the basis on which the present application has proceeded.

54    This leads me to the relationship between the requirements of the Protocol and the requirements of r 20.17(2)(c), a matter about which I have already made a number of findings.

55    First, as I have found, in light of the orders made by the Court and the agreement reached between the parties, the Protocol supersedes the requirements of r 20.17(2)(c), for the purposes of this proceeding. Put another way, any challenge to the adequacy of the lists in terms of r 20.17(2)(c) should not be accepted if the requirements of the Protocol have been met. The intendment of the orders made on 19 August 2017 and 28 September 2017 is not gainsaid by the fact that there is no order that explicitly endorses the Protocol as agreed.

56    Secondly, as I have also found, the requirements of the Protocol with respect to document description are in accordance with the objective sought to be attained by r 20.17(2)(c). Should the Court rule that a particular document, in respect of which a claim of privilege has been made, be produced, then the document can be identified and produced by reference to the lists provided. This is because each document has been separately listed and given a unique identification number which allows it to be retrieved from the document management system. This is one of the strengths of the system put in place by the Protocol.

57    Thirdly, the lists that have been provided, taken with the tables referred to in the Protocol, identify the nature of the privilege claimed. As I have stressed, the claims of privilege relevant to the present dispute are those asserted by QRx. All these claims are for legal professional privilege. The applicant argued that, in relation to these documents, the designation LPP was insufficient because it does not distinguish between advice privilege and litigation privilege. Two comments should be made in that regard.

58    First, I am not persuaded that the identification of the ground of privilege as LPP is not in accordance with r 20.17(2)(c). A claim of legal professional privilege may have different aspects, but this does not transform those aspects into separate privileges or separate grounds of privilege. Only one privilege is invoked. I would respectfully suggest that this is why, in Domino’s Pizza, Griffiths J referred to “client legal privilege” (an equivalent expression to legal professional privilege) as a “standard” statement of this ground. It is apparent from this part of his Honour’s reasons that he accepted such a designation as satisfying the requirements of r 20.17(2)(c) in that regard.

59    Secondly, the parties no doubt gave careful consideration to the adequacy of the Protocol for this proceeding. I cannot imagine that the applicant would have agreed to the Protocol, on such an important issue as the notification of privilege claims, had it thought that the three designations provided by the Protocol for claims of privilege were deficient or lacked utility for the purposes of the case at hand.

60    This brings me to a further matter related to the making of a privilege claim. In the course of oral submissions, it emerged that the three lists of documents affecting the director respondents have not been verified. The reason given was that, although the lists had been provided, the bringing of the present interlocutory application intervened before the lists were verified. I was informed that steps to verify the lists have not been taken while their form is under challenge. The upshot of this is that, should I accept the director respondents’ contention that, contrary to the applicant’s complaint, the lists are appropriate in form, they will be verified in that form. I accept that explanation. I should record at this juncture that the director respondents’ lists of documents do include a coversheet which states that QRx’s claims of privilege are made on the ground of legal professional privilege.

61    Verification of a list of documents by an appropriate person having knowledge of the facts is important because, in the case of a claim of privilege, it signifies that the claim is “honestly and accurately taken, so that further scrutiny by the other party should not be necessary”: Interchase at 170. This statement is, of course, a reflection of the general position.

62    I now return to the question of document description as it relates to the debate between the applicant and the fifth respondent. In the course of this debate, the fifth respondent took me to certain matters of detail in Section 11 of the Protocol concerning the way in which documents are to be described. The essential point developed by the fifth respondent was that the Protocol requires the parties to rely on objective, specifically-defined criteria when completing the required fields in the tables, not subjective evaluations that could be formed about the documents themselves. A concomitant of this submission was the contention that the Protocol prescribes when information is to be provided, and what information is to be provided, including how fields are to be completed. I accept that the Protocol is highly prescriptive in this regard. The fifth respondent submitted that, notwithstanding the complaints made by the applicant, it had described the documents in its lists in accordance with the Protocol. In other words, if no data as to date, title or author is provided in the lists in relation to a particular document, it is because the operation of the Protocol mandates that outcome with respect to that document.

63    The applicant fairly accepted that it was not in a position to state that the description of a particular document is not in accordance with the Protocol, even though it had concerns in that regard. The applicant’s main point was that, regardless of the Protocol, a better description should be provided of the documents in question, especially when a claim of privilege has been made. Implicit in this contention is the proposition that, for these documents, there should be a departure from the Protocol.

64    I am not satisfied on the material before me that the fifth respondent has not described the documents in accordance with the Protocol. This is a sufficient answer to the applicant’s complaint given my conclusions on the relationship between the Protocol and r 20.17(2)(c). Further, in the case of each document in respect of which a claim of privilege has been made, the objective of r 20.17(2)(c) has been achieved by the Protocol because the document can be identified and produced should an order for production be made. Finally, the departure from the Protocol which the applicant’s contention implies would undermine the integrity and reliability of the data on which the document management system is based and by reference to which the exchange of documents is to take place in the present proceeding.

65    For these reasons, the orders sought in paragraphs 1 to 5 of the applicant’s amended interlocutory application should be refused, with costs. In the circumstances, it is unnecessary for me to consider, separately, the question of costs as it arises in relation to the claims of privilege concerning the documents over which the fourth respondent asserts its own claims. It is sufficient for me to record that, even without the additional information voluntarily provided by the fourth respondent, I am satisfied that, based on the findings I have made, the lists of documents initially provided by the fourth respondent sufficiently identify the ground of privilege relied upon.

Additional matters

66    On 10 April 2017, I made orders that the applicant file and serve, by 26 June 2017, the lay and expert affidavits upon which it intends to rely in the principal proceeding, a paginated bundle of the documents on which it intends to rely, and a narrative statement of facts and contentions. On 29 June 2017, I made an order extending the time for compliance to 28 August 2017.

67    In paragraphs 6 and 7 of its amended interlocutory application, the applicant seeks an order vacating the requirement to file a narrative statement of facts and contentions, and extending the time for filing its lay an expert affidavits and the paginated bundle of documents. However, at the hearing, the applicant submitted that consideration of this relief should be deferred pending determination of the question of the sufficiency of the lists of documents.

68    Despite the respondents’ objections to the applicant’s proposed course, I am not disposed to consider this aspect of the amended interlocutory application in the absence of the applicant advancing it in some meaningful way. In this connection, I note that the affidavit filed in support of the amended interlocutory application does not advance any factual basis on which to grant the relief sought in this regard, and does not explain the applicant’s apparent default. I will say nothing more about that at the present time. However, if the applicant wishes to pursue its application to extend time, it should do so promptly. Certainly resolution of the present dispute concerning the sufficiency of the lists of documents could not stand as a valid reason for not complying with the orders in question. The matter cannot be left in abeyance in this way.

Associate:

Dated:    20 October 2017