Procedure - Civil proceedings in State and Territory courts
› Discovery and interrogatories
› Discovery and inspection of documents
› Production and inspection of documents
› Grounds for resisting production
› Confidentiality and irrelevance
› Redacted content of discovered documents directly relevant but also confidential
› Confidential content can be managed under an appropriate inspection regime
› Order for production for inspection of entire unredacted documents.
Aust Dig [1245-1249]
Gunns Ltd v Marr [2008] VSC 464 applied
Quick Take
1Where consent discovery orders exclude material that 'would properly constitute a sensitive enrolment record under s 10AA of the Aboriginal Lands Act 1995 (Tas)', the carve-out imports s 10AA into the discovery regime. On the facts, the Electoral Commissioner's sworn evidence of a good faith belief that informants regarded the information as personally sensitive or confidential was sufficient to justify the redactions under the orders as made. Absent such a carve-out, s 10AA has no direct application to discovery and does not operate as a privilege against production.
2Discovery orders may be varied where the interests of justice require it, following [name withheld] v Honeysett Instant Print Pty Ltd. Variation was justified where: the documents were directly relevant because the decision-maker deposed that he referred to them in making the decisions under appeal; the carve-out had been agreed under a misapprehension that s 10AA operated as a privilege; and confidentiality could be protected by a restricted inspection regime.
3Apart from privilege, redaction of a discovered document is not a matter of right and requires consent or leave. The redacting party bears the onus of showing a legitimate basis, and the court must ensure redaction does not impair the intelligibility or meaning of the relevant parts. Material is not rendered irrelevant merely because the decision-maker was not required to divulge it at the administrative stage, where the grounds of appeal (here apprehended bias and impermissible delegation) do not complain of non-disclosure.
