Re Australian Broadcasting Commission v Robert James Parish & Ors Being the Members of the Australian Cricket Board; Pbl Marketing Pty Limited; World Series Cricket Pty Ltd; Publishing and Broadcasting Ltd [1981] FCA 7; (1981) 48 FLR 292 (11 February 1981)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN BROADCASTING COMMISSION
And: ROBERT JAMES PARISH & ORS Being the Members of the Australian Cricket
Board; PBL MARKETING PTY. LIMITED; WORLD SERIES CRICKET PTY. LTD; PUBLISHING
AND BROADCASTING LTD. [1981] FCA 7; (1981) 48 FLR 292
No. G83 of 1979
Practice and Procedure - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.(1)

CATCHWORDS

Practice and Procedure - Discovery - motion seeking orders for particular discovery - whether Court has a discretion under order 15 rule 8 - factors relevant to exercise of discretion.

Federal Court Rules, Order 15 rule 8.

Practice - Discovery - Motion seeking orders for particular discovery - Discretion of court - "The Court may order" - Meaning of - Federal Court Rules,O. 15, r. 8. On 21st December, 1979, the applicant had commenced an action for relief based on alleged contraventions of s. 45 of the Trade Practices Act 1974 (Cth). Pursuant to an order of the court as to the conduct of the action of 2nd January, 1980, the parties exchanged lists of documents. The applicant later received leave to amend its statement of claim to widen the issues in the action and the parties subsequently agreed upon a further timetable including exchange of a further list of documents and inspection thereof. Affidavits verifying lists of documents were not filed. On 4th February, 1981, by notice of motion the applicant sought an order pursuant to O. 15, r. 8 of the Federal Court Rules that each of the fifteenth, sixteenth and seventeenthnamed respondents (P.B.L. Marketing Pty. Ltd., World Series Cricket Pty. Ltd. and Publishing and Broadcasting Ltd.) file affidavits as to the location of certain documents.

Held: (1) Pursuant to O. 15, r. 8 of the Federal Court Rules the court had a discretion whether to make the the order sought.

David Kahn Inc. v. Conway Stewart & Co. Ltd., (1972) FSR 169, referred to.

(2) The following matters were relevant to the determination of the application: (a) the parties had deliberately adopted an informal method of discovery; (b) the applicant's notice of motion was only taken out a month before the trial was due to start; (c) the application would place a very severe burden on the legal advisers of the relevant respondents during the short time remaining before the trial; (d) (i) the applicant now had a copy of two of the documents in issue; (ii) it was unclear whether another two categories of documents had been discovered or not; (iii) the respondents had given an undertaking to make available another document in issue.

(3) Application in notice of motion refused.

HEARING

Sydney, 1981, February 4-6, 11. 11:2:1981
NOTICE OF MOTION.

The facts appear from the judgment.

D. A. Staff Q.C., J. D. Traill Q.C. and G. Walker, for the applicants.

T. E. F. Hughes Q.C. and J. D. Heydon, for the fifteenth, sixteenth and seventeenth-named respondents.

Solicitor for the applicant: J. M. McD. Harris.

Solicitors for the fifteenth, sixteenth and seventeenth-named respondents: Allen, Allen & Hemsley.
T. J. GINNANE

ORDER

1. The application is refused.

2. The costs of the application are to be costs in the cause.

Orders accordingly.

DECISION

This oral judgment is in a notice of motion with regard to discovery filed by the applicant and dated 3 February 1981.

On 21 December 1979 the applicant sought interlocutory relief based on alleged contraventions of s.45 of the Trade Practices Act 1974.

The matter came on for hearing before a Judge of this Court on 27 December 1979 and on 2 January 1980 the learned trial Judge dismissed the application for interlocutory relief. On the same day a timetable, which had apparently been agreed by the parties, was handed to the trial Judge for his approval. His Honour then made orders relating to the dates for filing and serving the statement of claim, the request for particulars and the defences and the order continued "that lists of documents be exchanged by Tuesday 22 January; that inspection of documents take place on Thursday and Friday 24 and 25 January; that any interrogatories be delivered by Tuesday 29 January; that the answers to such interrogatories be delivered by Tuesday 5 February; that subpoenas be made returnable by Friday 8 February and I fix the hearing for Tuesday 12 February 1980".

Evidence given by Mr. Blunt, the solicitor having the conduct of the case for the 15th, 16th and 17th respondents, (whom I will call "the relevant respondents") shows that the parties endeavoured to comply with the order to exchange lists of documents by 22 January as best they could. The relevant respondents' list was prepared as the documents were examined by the solicitors and pages were handed to the solicitor for the applicant as they were prepared.

Only one list was prepared by the three relevant respondents and it took the form of a document of some 48 pages. It was not in the usual form since all it did in most instances was to list files by specifying the drawer in the particular filing cabinet in which each was contained. It seems that each file was described in a general manner. In some cases certain documents were identified. Discovery was an immense task and because of the early hearing date which had been arranged it seems clear on the evidence before me that the parties adopted a practical approach.

The hearing commenced before a Judge of this Court on 12 February 1980 and proceeded until 18 February 1980. At that time the applicant had sought to amend its statement of claim and a question of confidentiality had arisen. The learned trial Judge ruled against the respondents on the question of confidentiality and against the applicant in its application to amend the statement of claim.

Appeals were brought to the Full Court of this Court. On 2 March 1980 the appeal against the trial Judge's refusal to allow the statement of claim to be amended was refused. The matter was resumed before the learned trial Judge on 4 August 1980 when a further application to amend the statement of claim was made and allowed on 14 August 1980. From this the respondents appealed to the Full Court and that appeal was dismissed on 31 October 1980. The amendments which were made to the statement of claim had the result of widening the issues between the parties and the parties agreed upon a timetable dealing with further particulars, amended defence, exchange of a further list of documents, inspection of documents, further interrogatories, answers to interrogatories and subpoenas, the date for hearing having been previously fixed for 3 March 1981. A list of further documents was supplied both by the applicant and by the relevant respondents.

It is perfectly clear that initially the parties adopted a practical course for discovery accepting something less than the formal discovery provided for in order 15 of the rules of this Court in an endeavour to be ready by the hearing date in February 1980. Mr. Blunt said in evidence that he and the solicitor for the applicant had agreed that discovery by the relevant respondents would be on an informal basis. No challenge was made to this evidence.

No affidavit at any time verifying the documents discovered was filed by any party as provided for in O.15 r.2. The parties in my opinion accepted the risks attendant upon discovery of an informal nature. No complaint appears to have been made by any party about the failure to file verifying affidavits.

The evidence shows that approximately 25,000 pages of documentary material was discovered by the relevant respondents.

Although some requests for further discovery were made by the applicant during January 1981, it was not until the Court was asked to deal with a notice of motion taken out by the relevant respondents in relation to photocopying of documents which had been discovered that the applicant sought the relief which it now seeks. It then filed a notice of motion on 4 February 1981, which it amended on 5 February, seeking an order that each of the relevant respondents file an affidavit stating whether any of the documents specified in the amended notice of motion, or documents of the class specified therein, are or have been in its possession, custody or power and if they or any of them have been but are not in its possession, custody or power, when it parted with them or it and what has become of them or it. The applicant relied upon O.15 r. 8.

Order 15 rule 8 deals with the discovery of particular documents. So far as is relevant it provides that if it appears to the Court from evidence or from the nature or circumstances of the case or from any documents filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party the Court may order that party to file an affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power when he parted with it and what became of it. It is necessary to note that the Court has power under o.15 r.3 to limit discovery.

Senior Counsel for the applicant argued that if the grounds for an order under O.15 r.8 are established, the words "may order" mean "must order" and the Court does not have any discretion. In my opinion this is not so. Order 15 clearly distinguishes in many places between the word "may" and the word "shall". I also note the view expressed in relation to a similar order in David Kahn Inc. v. Conway Stewart & Co. Ltd. (1972) F.S.R. 169. In my opinion the Court should approach its task under O.15 r.8 clearly keeping before it the fact that in this case the parties deliberately adopted an informal method of discovery. Even after amendment of the statement of claim the procedure agreed by the parties provided only for a list of documents and apparently no party has attempted to verify those lists or any earlier list by affidavit. Another very important matter in the exercise of my discretion is that the trial is due to start on 3 March 1981. That date has been fixed for some time. The notice of motion was only taken out a month before the trial was due to start.

Mr. Blunt estimated that, in view of the magnitude of discovery, at least two weeks work would be required for the 15th and 16th respondents to verify all the documents discovered. Obviously this would place a very severe burden on the legal advisers of the relevant respondents during the short time remaining before the trial.

It was submitted that if the grounds in O.15 r.8 were established and it was shown that a document had been in the possession, custody or power of a respondent who had parted with it, an order should be made under O.15 r.8 that an affidavit be made stating when the respondent parted with the document and what had become of it, even in a case where the applicant had a copy of the document. In my opinion this is not necessarily so. The Court has a discretion and it may well think that where the applicant has a copy of a discoverable document that was not discovered during the informal unverified discovery, any question relevant to when a party parted with the document and what has become of it is more appropriate for interrogatories than for an affidavit under O.15 r.8.

The documents specified in the amended notice of motion are those referred to in Exhibit 'A'. The 6th category does not need consideration because Senior Counsel for the applicant accepted that any documents for which a case had been made out fell within categories 1 to 5 and 7. I will deal with those categories without going into unnecessary detail. Senior Counsel for the relevant respondents submitted that there was no evidence that a number of items referred to in Exhibit 'A' had not been discovered. Little evidence was produced by the applicant concerning what had in fact been discovered but reliance was placed on the various lists of documents and correspondence from the relevant respondents' solicitors and the evidence of Mr Blunt.

Item 1. A copy of this document is in the possession of the applicant and was before me in these proceedings. It appears from the evidence of Mr. Blunt that the document referred to in item 1 has not been discovered. Some question arose as to whose document it was and whether it was ever in the possession, custody or power of any relevant respondent. The applicant has a copy of this document and I am not satisfied that it falls within the terms of O.15 r.8.

Item 2. This category relates to negotiations in relation to what was known as the Gillette Cup Competition. It is by no means clear to me on the evidence what was discovered in this category. It was conceded that certain documents were discovered. Item 2 is cast in very broad terms and this also mitigates against my granting any order in respect of this category.

Item 3. This item appears to be a video tape which was tendered but rejected in the original interlocutory proceedings between the same parties. Mr. Blunt has given an undertaking that if, and when, this video tape is recovered he will make it available to the applicant. It appears that the video tape was last seen in the hands of the projectionist who had it during the proceedings. Little was before me concerning its relevance.

Item 4. This item comprises three exhibits in the original interlocutory proceedings. The existence of these exhibits was always known to the applicant but, like the video tape, according to Mr. Blunt whose evidence I accept, they were overlooked during discovery, being apparently in an exhibit file which he kept. A copy of that file has now been provided to the applicant.

Item 5. Mr. Blunt's evidence was that he believed the only relevant entries to have been discovered. A number of diaries were the subject of subpoenas and have been deposited in the custody of the Court although I have declined to give the applicant access to them at this stage of the proceedings.

Item 7. This item relates to negotiations with McDonald's System of Australia Pty. Ltd. for sponsorship of cricket. The evidence relating to what has been discovered is uncertain in this regard. The initial list of documents referred on page 4, under the heading 33, to "McDonalds U.S.P. Meedham" and on page 13 item 37 to a file, in the second drawer of the filing cabinet in the office of the general manager of the 15th respondent, entitled "McDonalds". There was no evidence before me of what was comprised in those files.

I have decided in the exercise of my discretion to refuse the application in the notice of motion.

I am prepared to listen to any argument as to costs but my present inclination is to take the same course as I did in the application made by the relevant respondents, in relation to photocopying, namely to make the costs of this motion costs in the cause.

(Submissions as to costs)

The orders I make then are that I refuse the application in this notice of motion and that the costs of the application are to be costs in the cause.