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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Taylor v. Clonmel Healthcare Ltd. [2004] IESC 13 (11 February 2004)
URL: http://www.bailii.org/ie/cases/IESC/2004/13.html
Cite as: [2004] IESC 13, [2004] 2 ILRM 133, [2004] 1 IR 169
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298/03
Hardiman J.
Geoghegan J.
Fennelly J.
BETWEEN/
Plaintiff/Appellant
Defendant/Respondent
JUDGMENT of Mr. Justice Geoghegan delivered the 11th day of February 2004 [Nem Diss]
This is an appeal from an order of the High Court (Roderick Murphy J.) dismissing an appeal from an order of the Master of the High Court refusing an application by the above-named plaintiff/appellant for an order for discovery of documents.
The action is for damages for personal injuries arising out of alleged exposure to noxious substances in the course of the plaintiff's employment with the defendant. The essence of the claim is contained in the following extract from paragraph 4 of the statement of claim which reads as follows:
"4. The plaintiff was employed with the defendants from in or around the month of March 1989 until in or around the month of February, 2000 in the defendants' said factory premises and in the course of her employment she has been exposed to quantities of noisome and noxious dust, fumes and vapours, including penicillin powder, in consequence whereof the plaintiff sustained severe personal injuries and has suffered and continues to suffer loss and damage.PARTICULARS OF INJURIES The plaintiff developed symptoms of cough, breathlessness and wheeze. The plaintiff developed asthma. The combination of normal spirometry tests and marked wheeze in the plaintiff suggest a large amount of inflammation in her small-calibre airways, the bronchioles and her present wheezes suggest a lot of current airway obstruction in her small bronchioles. The plaintiff has suffered and continues to suffer much pain, inconvenience, loss of amenities of life and loss of earning capacity, and loss of enjoyment of life and has been and continues to be gravely affected in her social, working, domestic and recreational life….."
The remainder of the paragraph deals with particulars of special damage which are not relevant to this application.
A defence was delivered on the 21st of October, 2002, the relevant part of which for the purposes of this application is contained in paragraph 1 which reads as follows:
"1. It is denied that during the course of her employment with the defendant the plaintiff was exposed to the alleged or any quantities of noisome or noxious dust or any dust, fumes or vapours. It is denied that during the course of her employment with the defendant the plaintiff was exposed to penicillin powder as alleged or at all. If the plaintiff was exposed to the alleged or any dust, fumes, vapours or penicillin powder (all of which is denied) then it is denied that as a consequence thereof the plaintiff sustained the alleged or any personal injuries or suffered, or continues to suffer the alleged or any loss or other damage."
On receipt of delivery of that defence the solicitors for the appellant wrote a letter to the solicitors for the respondent dated the 7th of November, 2002 seeking voluntary discovery in accordance with O. 31, r. 12 of the Rules of the Superior Courts as amended since the 3rd of August, 1999 by the Rules of the Superior Courts (No. 2) (Discovery) 1999. I think it useful to set out in the judgment the terms of this letter and some of the subsequent correspondence relating to discovery. The letter of the 7th of November, 2002 reads as follows:
"Re: Marie Taylor v. Clonmel Healthcare Limited
High Court
Dear Sirs
We acknowledge receipt of your defence and note that your clients deny that the defendant was exposed to the alleged or any quantities of noisome and noxious dust or any dust, fumes or vapours. We note that it is further denied that during the course of her employment with the defendant the plaintiff was exposed to penicillin powder. We further note that you advised that if the plaintiff was exposed to any dust, fumes, vapours or penicillin powder then it is denied as a consequence thereof the plaintiff sustained the injury complained of in the statement of claim. We further note that it is denied that the plaintiff sustained any injury. We note that your clients deny that they were guilty of the negligence, breach of duty and breach of statutory duty as set out in the statement of claim. Arising from your denial we now require that the defendants agree to make Voluntary Discovery on Oath of all documents which are or have been in their possession relating to matters in question in the said proceedings and in particular the following documentation.
1. System of work.
2. The precautions (if any) taken to prevent injury from materials used in the work/performing part of the workplace.
3. The nature of all materials used in or forming part of the work or place of work.
4. Employment documentation relevant to the plaintiff to include the plaintiff's employment file, personnel file and medical file.
5. Any other documents in the possession, power or control of the defendants in relation to the issues as pleaded.
Please be advised that:
(a) The plaintiff makes this requirement pursuant to the Rules of the Superior Courts and
(b) the discovery which the defendants are hereby required to agree to make is discovery which shall be made in like manner and form and shall have the like effect as if directed by order of the High Court and
(c) if the defendants agree to make the said discovery within the time required namely, 42 days from the date of this letter and fail to make such discovery within the said time, the plaintiff may make application pursuant to the Rules of the Superior Courts in respect of the defendants' failure to make the said discovery within the said time.
Please also note that unless, within 10 days from the date of this letter, the defendants confirm their agreement to make the discovery hereinbefore required, an application will be made on behalf of the plaintiff to the court for an order requiring that the defendants do make the said discovery and for the costs of, and incidental to, the said application; and this letter, and the defendants' failure to advise us, as required, that they agree to make the said discovery required shall be relied upon to ground the said application.
We await hearing from you.
Yours faithfully
Denis O'Sullivan & Co.
I should mention at this stage that in my view that letter clearly gave reasons for the discovery sought even though the word "reasons" is not to be found in the letter. Given that the letter commences with a clear exposition of what are the issues in the case, it is self-evident why the appellant wanted the categories of documents listed and it is equally self-evident that within those categories she was only looking for documents material to the issues as set out. It can, of course, be argued that on its face at least the fifth category sought is much too wide and contravenes the 1999 amendments. I will, however, return to that issue later in the judgment. In making that comment, I am not overlooking the fact that the respondent is similarly criticising the other four categories sought.
The solicitors for the respondent replied to that letter by a letter of the 12th of November, 2002 acknowledging receipt but requesting the solicitors for the appellant "to set out your reasons for seeking the discovery sought". In reply to that letter the solicitors for the appellant wrote a letter of the 15th of November, 2002 which reads as follows:
"Re: Marie Taylor v. Clonmel Healthcare Limited
High Court
Dear Sirs
Thank you for your letter dated 12th of November, 2002. The defendant did not take any or any adequate precautions for the safety of the plaintiff. The plaintiff requires documents in relation to the system of work in order to prove that the defendant failed to take any or any adequate precaution for the safety of the plaintiff. The defendant has denied that the defendant failed to take any adequate precaution for the safety of the plaintiff.
The plaintiff requires documentation to prove the precautions (if any) taken to prevent injury from materials used in the work/performing part of the workplace. The plaintiff alleges in her statement of claim that the defendant exposed the plaintiff to a risk of damage or injury to which the defendant knew or ought to have known. The plaintiff further alleges that the defendant failed to provide any fans or suction plant or other suitable or adequate plant or appliances to enable the work to be carried out safely. The plaintiff further alleges that the defendant failed to provide any or any adequate or proper protective equipment which would have enabled the plaintiff to carry out the said work in safety. The defendant denies that the plaintiff was exposed to any risk or injury and denies that the defendant failed to provide fans or suction plant and further denies that the defendant failed to provide any or adequate or proper protective equipment. The documents are required to prove that the defendants did not take any precautions to prevent injury from materials used in the work/performing part of the workplace.
The defendant failed to take any or any proper measures to protect the plaintiff from the inhalation of dust, fumes and vapours.
The plaintiff alleges that the defendant failed to provide the plaintiff with adequate suitable respiratory appliances which would enable the plaintiff to carry out the said work in safety. The plaintiff was exposed to substantial quantities of dust, fumes and vapours. The defendant denies that the plaintiff was exposed to the inhalation of dust, fumes and vapours and further denies that the substances which the plaintiff was exposed to were dangerous in the workplace. As a result of the denial of the defendant it is a matter for the plaintiff to prove that the materials used in or forming part of the workplace were dangerous substances. The plaintiff requires documentation in the nature of all materials used in or forming part of the workplace.
The plaintiff alleges that she was allowed to remain in the said hazardous employment when the defendants knew or ought to have known that it was unsafe and dangerous to allow her to do so. The defendant denies that the plaintiff was allowed to remain in the said hazardous employment when they knew or ought to have known that it was unsafe and dangerous. The plaintiff alleges that the defendants failed to exercise any or proper adequate medical supervision of the plaintiff in the circumstances where she was engaged in hazardous employment. The plaintiff alleges that the defendants failed to take any or effective or adequate steps by way of medical or other supervision or otherwise to identify the risk to which the plaintiff was being exposed and take measures to eliminate that risk so as to prevent the injury or further injury to the plaintiff. The plaintiff alleges that the defendant failed to warn the plaintiff of the risk attending such hazardous employment. The defendants deny that the plaintiff was allowed to remain in the said hazardous employment and further deny that they failed to take any proper or adequate medical supervision of the plaintiff in the circumstances and further deny that the employment was hazardous. The defendants further deny that they failed to identify the risk to which the plaintiff was being exposed and take measures to eliminate that risk. The defendant further denies that they failed to warn the plaintiff attending such hazardous employment. By reason of the foregoing the plaintiff requires the defendant to make discovery of the plaintiff's employment file, personnel file and medical file.
Unless we receive confirmation from you by return that you will agree to make discovery as previously required we shall have no alternative but to make an immediate application to the courts.
We would mention that the court has already made discovery orders in relation to the related cases of Martin Duggan and Mary Maunsell.
We await hearing from you.
Yours faithfully
Denis O'Sullivan & Co."
A copy of the actual order made in the Martin Duggan case referred to in that letter was subsequently forwarded to the solicitors for the respondent following on the order of the Master which was made on the 16th of May, 2003 refusing the discovery. The Martin Duggan order was dated the 19th of March, 1999 and, therefore, predated the amended rule. Nevertheless the order was not a general order for discovery but was for precisely the same categories of documents that were sought in this case. It seems clear that it never occurred to the legal advisers to the respondents that there could be anything objectionable about the discovery sought in that form prior to the amending rule. Their current objection is exclusively based on that amending rule and in my view is essentially a technical objection.
In reply to the detailed letter of the 15th of November, 2002 cited above, a holding replying letter was written on the 20th of November, 2002. There does not appear to have been any later reply but by letter of the 13th of January, 2003 the solicitors for the appellant wrote to the solicitors for the respondent to the effect that they had advice from counsel that the letter of the 7th of November might not comply with the Rules of the Superior Courts and that they were now putting the respondent formally on notice that they were seeking voluntary discovery of the said categories of documents which were again scheduled to this letter. The format of the letter followed the rules rather more strictly. The following extract makes this clear.
"Please note:-
A. We require you within ten days of the date hereof to signify your agreement to making voluntary discovery as herein requested.
B. The said voluntary discovery is sought to be made within forty-two days of the date hereof.
C. Voluntary discovery is being sought pursuant to O. 31, r. 12 sub-rule 4 of the Rules of the Superior Courts.
D. We would require discovery to be made in like manner and form and to have such effect as if directed by the court.
E. Failure to make discovery may result in an application to the court for an order for discovery pursuant to O. 31, r. 21 of the Rules of the Superior Courts.
F. Furthermore should you agree to make discovery as requested and fail to do so, this may also result in an application to the court, pursuant to the provisions of the said order and rules.
G. The reason that discovery is required as aforesaid is on account of the denials contained in your defence that the plaintiff was exposed to the alleged or any quantities of noisome and noxious dust or any dust, fumes and vapours. And it was further denied that during the course of her employment with the defendant the plaintiff was exposed to penicillin powder, and if the plaintiff was exposed to penicillin powder and that if the plaintiff was exposed to any dust, fumes, vapours or penicillin powder then it is denied as a consequence thereof the plaintiff sustained the injury claimed of in the statement of claim. It is noted also that the defendant denies that they were guilty of the negligence, breach of duty and breach of statutory duty as set out in the statement of claim, and in the circumstances discovery is necessary for the proper presentation and preparation of the plaintiff's case.
The said documents are both relevant and necessary and we hereby call upon you to furnish us with all the documents relating to the foregoing."
As mentioned, the schedule to the letter contained the list of the categories of documents.
This letter was followed up by a motion on notice to the Master of the High Court seeking the same discovery and dated the 10th of February, 2003. That motion was grounded on an affidavit by Mr. David O'Mahony, solicitor in the firm of Denis O'Sullivan & Co., solicitors for the appellant. That affidavit referred to "the pleadings and proceedings already had herein when produced" and went on specifically to exhibit the letters of the 7th of November, 2002 and 13th of January, 2003 cited above. In paragraph 5 of the affidavit the deponent states as follows:-
"I say and believe that the defendant has or had or should have the documents required to be discovered within its power, possession or procurement and that the reason why discovery of the said documents is required is that the same are relevant and necessary for the proper presentation and preparation of the plaintiff's case and that the defendants are denying the material averments of fact as pleaded in the statement of claim herein and by reason of the foregoing it has become necessary to apply to this Honourable Court for the order herein sought."
In paragraph 6 of the affidavit the deponent refers to the traverses in the defence and in paragraph 7 states that the documents sought to be discovered "should assist the plaintiff in proving her case and rebut the denials contained in the defendants' defence."
A replying affidavit of Mr. Kevin O'Keeffe a partner in the firm of Coakley Moloney, solicitors who were the solicitors for the respondent was sworn and filed in the motion. In paragraph 4 of that affidavit Mr. O'Keeffe makes the following observation:
"The affidavit of the plaintiff seeking an order for discovery does not verify that discovery of documents sought is necessary for disposing fairly of the action for saving costs."
(I am assuming that the word "or" was accidentally omitted after the word "action" in that paragraph). Mr. O'Keeffe then goes on to make a second point in paragraph 5. He says that he believes that the plaintiff's request for discovery "does not identify the precise categories of documents sought to be discovered as required by rules of court." A third complaint is contained in paragraph 6 of Mr. O'Keeffe's affidavit in that he says in that paragraph that the plaintiff had failed "to furnish reasons why each category of documents is required to be discovered". He goes on to say that in so far as the plaintiff purported to furnish reasons such reasons had merely been confined to a reference to the denials contained in the defence. In paragraph 8 of Mr. O'Keeffe's affidavit he claims that item 4, i.e. "employment documentation relevant to the plaintiff to include the plaintiff's employment file, personnel file and medical file" is arguably the only precise category of documents identified by the plaintiff and that there was nothing in the reasons given to indicate why that item was necessary. He goes on to allege that item 5 which is the residual general requirement is contrary to the amended rule.
The Master refused the discovery sought and the appeal from that order came before Roderick Murphy J. in the High Court on the 7th of July, 2003. The learned High Court judge gave an ex tempore judgment dismissing the appeal from the Master. Essentially, the dismissal was based both on a finding that there was insufficient precision in the categories of documents sought and on a finding that there is nothing in the reasons given relating to fairly disposing of the action or for saving of costs. The judge placed particular reliance on the judgment of Morris P. in Swords v. Western Proteins Limited [2001] 1 I.R. 324. Quite apart from some problems to which that case gives rise and to which I will be referring later, the learned High Court judge in this case does not seem to have correctly interpreted the views of Morris P. For instance with reference to the Swords case the learned High Court judge said the following:
"The parties seeking discovery must show the reasons why they are required. It must provide added value to a case and narrow the issues between the parties; and so enable the parties to settle the case."
With respect to the learned High Court judge, I find that statement difficult to reconcile with one's normal understanding of what discovery is all about. In my view, it is a novel idea that discovery is to enable the settlement of a case. On the contrary, discovery is with a view to fighting the case. It is to provide a party with the necessary additional ammunition to enable him or her win his or her case. Time and again this court and most recently in the judgment of Fennelly J. in Ryanair plc v. Aer Rianta cpt (unreported judgment 2nd of December, 2003) has referred to and approved the famous dicta of Brett L.J. in Compagnie Financiere du Pacifique v. Peruvian Guano Company (1882) 11 QBD 55 in which it was explained that a document relates to the matters in question in the action "which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary".
That concept of discovery would seem to me to be rather different than the concept espoused by the learned High Court judge in this case. Of course, the learned High Court judge is quite correct in his view that the opposing party must be put into a position that he understands what type of documents are required. Nevertheless I would suggest that the learned High Court judge in applying that correct principle has adopted an unduly restrictive approach. He says that for instance "system of work" is too vague a phrase. But in interpreting the nature of the particular category of documents being sought by reference to its description the Master or the court, as it may be, must look at the context and in that connection surrounding correspondence which is exhibited may be relevant. No matter how a particular category of documents is described, the opposing party is only bound to discover such as are material to the issues. It is crystal clear in this case what kind of a case the appellant is making and what is in dispute. It is difficult to see therefore why there is a problem about providing documents relating to the system of work in so far as they are relevant to this dispute in the Peruvian Guano sense.
The same is true about categories 2, 3 and 4. If, for instance, there is a known hazard to workers in relation to working with one of the substances specified or an analogous substance there will obviously be recommended precautions that should be taken by an employer. The taking of those precautions or the desire to take whatever precautions may be required may easily generate documentation and it is that documentation which is sought. The learned High Court judge is particularly critical of category 3 because he seems to think it might cover materials of all kinds that might come into the workplace. But there is no danger of that because the obligation to discover would be confined to documents relating to the matters in issue in the proceedings. I can see no breach of the requirement that the appellant must specify the precise categories of documents in respect of which discovery is sought in relation to numbers 1, 2, 3 and 4 bearing in mind that there is the overall limitation that only documents relating to the proceedings need be discovered. If there was a serious problem of precision that made it difficult for the respondent to know what it had to discover it is very surprising that that objection was not taken in the two earlier cases even though they predated the new amended rule. If there was validity in the objection at that stage it could still have been taken under the old rule and the Master would certainly have entertained it and might have refused discovery.
As I have already indicated, the fifth category of documents sought is undoubtedly more problematical. In a case such as this, however, where science is involved in an allegation that the atmosphere of the workplace caused the injury there is a reasonable possibility that on foot of a literal interpretation of the categories of documents required or because of imprecise terminology in relation to alleged substances a defendant might avoid making discovery even though in reality a document would clearly be relevant to the real complaint of the plaintiff. I sympathise with the concern of the solicitors for the respondent in this case that category 5 could be interpreted as general discovery and thereby negative the clear intentions behind the amending rule. When read in context, however, I am satisfied that category 5 was intended to be strictly "eiusdem generis" in relation to the other four. What would be required to be produced under category 5 would be confined to documents which would be material to the action and which would be analogous to documents within the first four categories.
I turn now to the notice of appeal. There are nine grounds set out but for all practical purposes there were only two issues argued before this court. The first was that the categories of documents sought were not sufficiently precise and the second was the purely technical point that the Master had no jurisdiction to make any order other than the order that he did make because of non-compliance with the amended rule.
I have already expressed my views on the first of these two issues. I am satisfied that putting them into the context which I have put them and giving them the interpretation which I have applied to them the categories of documents sought are stated with sufficient precision to comply with the rule.
On the second point, I do not think that there was non-compliance with the rule but even if I were wrong about that I believe that it would not be fatal in this case. Under the amended rule there is a preliminary requirement that the applicant shall have previously applied by letter in writing requesting that discovery be made voluntarily specifying the precise categories of documents in respect of which discovery is sought and furnishing the reasons why each category of documents is required to be discovered and then a reasonable time for discovery has to be allowed and thirdly, there has to be a failure, refusal or neglect to make the discovery or an ignoring of the request. I have set out the two letters in full which were written. The first letter was probably sufficient in the context in which it was written but certainly when combined with the second letter there was compliance with this part of the rule. There were reasons given by implication in the first letter and expressly in the second letter and, in my view, they were sufficient.
Under the amending rule the affidavit grounding the ultimate motion for discovery must verify that the discovery of documents sought was necessary for disposing fairly of the cause or matter or for saving costs and must furnish the reasons why each category of documents is required to be discovered. A case cannot be said to be fairly disposed of if a party is prevented from being in the position of presenting and preparing the case properly. In paragraph 5 of his affidavit already referred to, Mr. David O'Mahony said that he believed that the defendant has or had or should have the documents required to be discovered within its power, possession or procurement and that the reason why discovery of these documents was required was that the same were "relevant and necessary for the proper presentation and preparation of the plaintiff's case and the defendants are denying the material averments of fact as pleaded in the statement of claim herein." That is sufficient verification in my view as to the necessity for the documents in order fairly to dispose of the proceedings. In his judgment already referred to in Ryanair plc v. Aer Rianta cpt Fennelly J. refers to the fact that Finlay C.J. in Allied Irish Bank plc v. Ernst & Whinney [1993] 1 I.R. 375 interpreting the original rule had opined that the burden of proof of necessity under that version of the rule was on the party against whom discovery was sought. Fennelly J. went on to observe that it was impossible to resist the conclusion that the amendment to the rule had shifted that burden. However, in most cases this alteration in the rule may not make much practical difference. If a party is entitled to a document on grounds of relevance to assist him in his case on the ordinary discovery principles it will usually be "necessary". Save in exceptional cases a formal verification of this in the affidavit will be sufficient on a prima facie basis. The opposing party of course may decide to raise the issue of necessity and put forward reasons why it is not necessary and that issue can then be disposed of in due course. As far as I am aware, the strengthening of the necessity requirement in the amending rule arose out of the judgment of Lynch J. in this court in the case of Brooks Thomas Limited v. Impac Limited [1999] 1 ILRM 171. In that case Lynch J. delivered the judgment of the Supreme Court and it was held in the judgment that in a negligence action which was already heavily delayed further and better discovery which included "all handbooks, guidebooks and standard reference works indicating the Impac approach to management consultancy/engineering should be discovered" was unnecessary. Over the years the necessity aspect of the rule had been rather overlooked and it became relevant in that case. The strengthening of the amending rule in my view is so that the legal advisers of the moving party will apply their minds not only to whether the documents are relevant but whether they are necessary. In most instances if they are relevant they will be necessary but there will be cases where that will not be so. It would defeat the whole purpose of discovery if detailed reasons had to be given in the grounding affidavit as to necessity. The purpose of the amendment was so that the Master or the court as the case may be and the respective parties would focus on what documents were really needed for the purpose of advancing the case of the moving party or defending as the case might be. For many years before that, an unlimited general order for discovery was common practice and on the common law side the order was made only on foot of the statement of claim without any requirement for an affidavit. I believe therefore that there was sufficient verification of necessity in this case.
I also believe that there was compliance with the rule that the grounding affidavit must contain the reasons why each category of documents is required to be discovered. It is true that they are not set out seriatim but the letters containing the reasons are exhibited. In my opinion, that is sufficient compliance. Even if I was wrong about that it is perfectly clear that the object of the amending rule has been achieved and I do not accept that the Master is confined in his "jurisdiction" to making orders based on strict compliance with the rule. It would appear that that view of the Master's powers is largely derived from the decision of Morris P. in Swords v. Western Proteins Limited cited above. I do not find it necessary to analyse what exactly the former President said about this but if he did go so far as to give such a strict interpretation of the so called "jurisdiction" of the Master, I would respectfully disagree. Although with reference to the Master the word "jurisdiction" is included in the index to the Rules of the Superior Courts it is not included in the body of the rules and is, in my opinion, a misnomer. The Master has the powers and duties conferred on him by the Rules of the Superior Courts. The powers of the Rules-making Committee in this regard in turn derive from the Courts (Supplemental Provisions) Act, 1961 and by cross-reference the Courts and Court Officers Act, 1926. But as I would see it, it is not a conferring of jurisdiction on the Master. It is rather limited powers given to the Master to exercise the jurisdiction conferred on the High Court. The rules of court simply regulate the jurisdiction already conferred. The rules do not themselves confer a jurisdiction. Under the definition of "court" in the Rules of the Superior Courts the Master is included when exercising his powers under the rules. I think therefore that the Master has full power to waive any technical breach in the rules if the object of the rule has in reality been achieved. Whether it be the court or the Master, however, the judge or the Master as the case may be will be very slow to exempt from the provisions of a rule where as in this case the rule is an amended rule specially designed to provide procedures to cure a perceived mischief. The Master is absolutely right therefore to require compliance with the amended rule but it is going too far to suggest that strict compliance is a condition precedent to the exercise of the Master's powers. In accordance with the judgment of McCracken J. in the Ryanair case the Master or the court for instance may alter the wording of a particular category of documents sought so as perhaps to order discovery of some but not all.
In the same Ryanair case Fennelly J. in his judgment refers to what had obviously been put forward as a key passage in the judgment of Morris P. in the Swords case. This was the passage referring to the historical background to the new rule and the necessity now to pinpoint the documents or category of documents required. Fennelly J. goes on to observe that the passage was subsequently approved in express terms by Keane C. J. with the concurrence of the other members of the court of which I was one in Burke v. DPP [2001] I.R. 760 But he goes on to opine that the judgment of Morris P. goes no further than to identify the mischief which the amendment was intended to remedy namely, the automatic and unnecessary resort to blanket discovery without sufficiently specifying the documents sought and the reasons for which their discovery was sought. As far as I can recall that was also the context of the approval in the Burke case. Having referred to the passage in the former President's judgment, Keane C.J. says the following:
"I have no doubt that the learned President was entirely correct in his view as to the object of the new rule and indeed its importance."
As far as I am aware that was the aspect of the case that was approved and the other aspects were not considered.
For all the reasons which I have given, I would allow the appeal and would set aside the orders of the High Court and of the Master of the High Court and order the discovery sought.