EXAM – DISCOVERY & PRIVILEGE

SCR 58A governs discovery.

P1 – don’t discover
 Directly relevant to issues arising on the pleadings relating to injury & symptoms Pl suffered
[paras 11, 18, 20] and the treatment Pl requires [para 23].
 Not in possession/power, bc the doc is at the GP’s office & is the property of the GP.

P2 – discover (Pl’s copy only)

 Directly relevant to the pleaded issue of causation of Pl’s symptoms [paras 20 & 26 of Defence].
 Original & File copies are not in Pl’s possession/power, bc they are the property of the GP &
specialists.
 Copies given to Pl are in his possession.
 Those copies created in 2003 (after Pl saw his lawyers) might be protected by litigation privilege.
But unlikely because the copy would have been created for the dominant purpose of medical
advice rather than anticipated litigation. (Grant v Downs)
 Even if privileged, they are expert reports, so Pl must deliver those copies in his possession to
Def (SCR 38). Def can request additional info, eg. documents the expert prepared/referred to,
fees/benefits to the expert, and notes of conversations involving the expert. (SCR 38.01A(4))

P3 – don’t discover ?
 Photos are “documents” (SCR 5).
 Not directly relevant to any issue arising on the pleadings, because the Defence does not dispute
where the Pl said he fell.
 [However, it is arguably directly relevant to whether Pl fell as a consequence of slipping on
material on the floor [para 8], because some areas of the floor are more likely to have things
on them than other areas.]

P4 – discover (original only)

 Directly relevant to the pleaded issues of negligence [paras 17(a)-(e)] and the cause of Pl’s fall
[para 8].
 Only the Original is in Pl’s possession.
 Litigation privilege does not apply, because the report was created before Pl had a client-lawyer
relationship.
 [Not an expert report under SCR 38, because Nixon has no tertiary qualifications]

P5 – don’t discover
 Shoes & material in the shoe are not “documents”. (SCR 5)

P6 – don’t discover ?
 Not directly relevant to the pleadings, because para 17 of the pleadings only relates to negligence
at the date of the accident, not afterwards. What happened after the accident has no bearing on
what happened at the time of the accident, because the things alleged in para 17 change over time.
Similar to Southern Equities v Arthur Anderson, where audit documents of 1987 were not directly
relevant because the pleadings allege misconduct in 1988. Distinguishable from Board v Thomas
Hedley, because there the complaints made after the accident were about a product that did not
change.
 [But possibly directly relevant if BMS has not changed its work practices in relation to the
floor at all since the accident.]

P7 – depends
(I’m assuming these complaints are all made after the accident, as the letters are described as
“concerning the accident”)
 If the complaints state the circumstances of the accident, then they are directly relevant to the
pleaded issues of negligence (para 17) and causation (para 8).
 If the complaints state the damage that Pl was suffering from, they are directly relevant to the
pleaded issue of damage (para 11, 12, 18, 20-25).

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 If the complaints merely demand that Def adopt better a system in future, they are not directly
relevant to the pleadings because the pleadings only relate to negligence at the date of the
accident, not afterwards.
 Only the Copies are in Pl’s possession.

P8 – discover
 Directly relevant to the pleaded issues of whether there was vegetable matter on the ground & a
system to inspect & clean the floor [para 17], because the statement could be an admission as to
the Def’s conduct on the date of the accident.
 In Pl’s possession.

D1 – discover (privilege?)
 Directly relevant to the pleaded issues of whether there was vegetable matter on the floor [para
17(a)], whether Def noticed leaves on the floor [para 17(d)] and whether Def had any (adequate)
systems in place [para 17(b), (c), (e), (f)].
 In Def’s possession (since Monica is Def’s employee).
 Litigation privilege may apply:
 There is a pre-existing lawyer-client relationship.
 The documents were made by the client via M, its agent.
 M’s notes are obviously confidential. The interviews with staff were recorded in private, not
in public, so they would attract confidentiality too (analogous to Nagan v Holloway;
distinguish from J-Corp v ABLF).
 Were the documents made when there was anticipated litigation? “anticipated litigation”
requires a reasonable likelihood (not mere speculation) that Gerald will commence
proceedings (ACCC v Safeway).
 It is arguable that there was no anticipated litigation yet when the documents were created
on 6 July 2000, because M was still in the investigatory process (like in ACCC v
Safeway). It’s unreasonable to anticipate that every person who falls will bring an action.
 However, there are opposing arguments. ACCC v Safeway can be distinguished, because
there the investigation was complex, while the “slip & fall” investigation here is simple –
such that litigation can be anticipated even during investigations. …
 Further, the documents may not be created for the dominant purpose of use in anticipated
litigation (Esso v Comm of Tax). This case seems like Grant v Downs, where the reports
would have been made anyway for managerial & record-keeping purposes, such that they fail
the dominant purpose test.
 However, it is arguable that litigation seemed so likely that “but for” the purpose of use in
anticipated litigation, the documents would not have been made.

D2 – discover (privilege?)
 Directly relevant (same reasons as for D1).
 In Def’s possession.
 Litigation privilege?
 The report would have been made for the dominant purpose of compliance with SA Public
Safety Regulations, not anticipated litigation. It is like Grant v Downs and fails the Esso test.
 However, assuming that D1 is privileged, the report would be privileged too under Dalleagles
v ASC. This is because if it is disclosed, it would reveal the substance of the privileged
communications in D1, and the report is confidential.

D3 – don’t discover
 Not in Def’s possession/power.
 Although it was in Def’s possession, it is not reasonable for Def to get the copy under SCR 59.08
because Def already has the original.

D4 – discover in privileged list

 Directly relevant (same reasons as for D1).
 In the insurer’s custody. Since the insurer & Def are cooperating, the insurer would have
consented to Def inspecting any document which may bear on the litigation (like in Roux v ABC).
So it’s in Def’s power.

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 Litigation privilege? If D2 is privileged, its copy will be privileged too (Dalleagles v ASC). But
even if D2 is not privileged, its copy can still be privileged unless the originals are intentionally
destroyed to avoid discovery (AFP v Propend). Is the copy privileged? –
 The copy was made by Def, the client, confidentially.
 It was made when there was pending litigation.
 It was made for the dominant purpose of use in pending litigation, because it “was requested
by the Claims Manager so that he could provide instructions to BMS’s lawyers”. (Esso v
Comm of Tax satisfied)

Waiver of privilege in D2 & D4?

 [Express waiver?]

Voluntarily giving info to 3rd party

 Privileged documents given to 3rd parties in confidence, could amount to waiver if the disclosure is
inconsistent with privilege (Mann v Carnell) or is unfair (Goldberg v Ng).
 The disclosure to TIC is not inconsistent with privilege, because TIC has a common legal interest
with BMS (analogous to Mann v Carnell). In Bulk Materials v Coal & Alllied Ops, disclosure
between insuree & insurer did not waive privilege.
 The disclosure to TIC is not unfair in the sense of Goldberg v Ng or Mancorp v Baulderstone.
 Distinguishable from SAFA v BNZ, because there the disclosure was to the opposing party who
relied on it. No such reliance here.

Compulsory disclosure
 The disclosure to the SA Public Safety Comm is a compulsory disclosure, and so is not a waiver
(State Bank v Smoothdale).
 Can distinguish Goldberg v Ng, because although BMS disclosed to the SA Public Safety Comm
to its advantage, it did not do so voluntarily. In Goldberg, the voluntary nature was stressed to be
crucial to the decision.
 Prior disclosure to SA Public Safety Comm does not constitute waiver, because it was compulsory
disclosure (State Bank v Smoothdale).

D5 – discover (complaints dated on/before 5 July 2000 about Grassy Knoll BMS floor)
 Letters dated after the accident are not directly relevant (same reasons as for P6).
 Letters not complaining about the floor in the fruit & vegetable area are not directly relevant.
Should confine to the fruit & vegetable area, as its inspection, cleaning etc systems differ from
other areas. So complaints about non-vegetable matter are irrelevant.
 Among the letters dated on/before the accident about the floor:
 Complaints from customers of the Grassy Knoll BMS about matter on the floor would be
directly relevant to negligence [para 17], because they show the systems in place during the
accident.
 Complaints from customers of other branches are not directly relevant, because the pleadings
are about negligence at the Grassy Knoll branch. One branch’s compliance with the systems
would be different to another’s. Complaints at other branches might lead to a “line of inquiry”
which would help the Pl, but this is no longer the test under the new SCR 58A. (Southern
Equities v Arthur Anderson)
 In Def’s possession.

D6 – don’t discover
 Not directly relevant to whether any of Def’s alleged failures in para 17 happened at the time of
the accident, because:
 It is about SA generally, not the Grassy Knoll branch;
 It is about the “last 2 yrs”, which doesn’t cover the date of the accident;
 It is about inspection of the “aisles”. Inspection in the aisles would differ from inspection in
the fruit & veg area.
[But small possibility of directly relevant to the legal issue of standard of care, because the cost
of precautionary measures is relevant in deciding whether there is negligence.]

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IF directly relevant:
 Original is on Def’s holding company’s file, which Def probably has possession of. (analogous to
Roux v ABC, where officers was held to have in possession their employer’s documents)
 Copy is in Def’s possession.
 No litigation privilege applies, because:
 The original was created for the dominant purpose of management reporting (like in Grant v
Downs);
 The copy was created when there was no anticipated litigation, as it was placed in the “general
complaints” file;
 The copy was created for the dominant purpose of record keeping (Grant v Downs).

D7 – depends
 If the Manual is dated soon before the accident, it is directly relevant, as it shows whether Def
had in place any systems at the time of the accident [paras 17(b)-(e)].
 If the Manual is dated after the accident, it is not directly relevant because it won’t necessarily
show what systems were in place at the time of the accident.
 All copies are in Def’s possession.
 But since they are all identical, only have to discover 1 copy.

D8 – don’t discover ?
 Not directly relevant, because the document focuses on understaffing, and the pleadings say
nothing about understaffing. Understaffing does not necessarily mean that there are inadequate
systems in place. It’s insufficient that understaffing might lead to a “line of inquiry” that
establishes inadequate floor inspection & cleaning systems. (Southern Equities v Arthur Anderson)
 [However, it could be directly relevant if one views understaffing as an implicit issue on the
pleadings, which is possible given that the pleaded issues in para 17 have a correlative
relationship with staffing levels.]

D9 – discover
 The Board’s decision not to increase staff budgets for the 99/00 year has a direct relationship with
what systems Def allegedly failed to have in place at the time of the accident  Directly relevant
to paras 17(b),(c),(e),(f).
 Also, the specified cost of precautionary measures is directly relevant to the pleaded issue of
negligence [para 17].
 Presumably in Def’s possession.