Re Trade Practices Commission v Santos Limited and Sagasco Holdings Limited [1993] FCA 199; (1993) Atpr 41-232 (1993) 42 FCR 203 (1993) 120 ALR 120 (29 April 1993)

FEDERAL COURT OF AUSTRALIA

Re: TRADE PRACTICES COMMISSION
And: SANTOS LIMITED and SAGASCO HOLDINGS LIMITED
No. VG377 of 1992
FED No. 292
Number of pages - 4
Practice and Procedure
[1993] FCA 199; (1993) ATPR 41-232
(1993) 42 FCR 203
(1993) 120 ALR 120

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Heerey J(1)

CATCHWORDS

Practice and Procedure - obligation to make continuing discovery - documents coming into possession or power after order for general discovery - discretionary factors influencing specific orders made for further discovery - Federal Court Rules O.15 r.7A.

Federal Court Rules O.15 r.6(2), O.15 r.7A.

Mitchell v Darley Main Colliery Co (1884) 1 Cab and El 215.

Myers v Elman (1940) AC 282

TNT Management Pty Ltd v Trade Practices Commission (1983) 47 ALR 693

HEARING

MELBOURNE, 29 April 1993
29:4:1993

Counsel for the applicant: M Goldblatt

Solicitor for the applicant: Australian Government Solicitor

Counsel for the first respondent: A C Archibald QC and D Shavin

Solicitor for the first respondent: Freehill Hollingdale and Page

Counsel for the second respondent: J Beach

Solicitor for the second respondent: Finlaysons

ORDER

The Court Orders that:
1. On or before 10 May 1993 the first respondent file and serve a

list of all documents which have come into its possession,
custody
or power between 25 December 1992 and 30 April 1993, inclusive.
2. It shall be sufficient compliance in relation to claims for legal
professional privilege for the first respondent to identify
documents by reference to classes or categories of documents.
3. Liberty to apply for further directions as to discovery is
reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

HEEREY J The second respondent (Sagasco) applies for an order for further discovery from the first respondent (Santos). On 8 December 1992 Northrop J made an order for general discovery by, amongst others, Santos. Under O.15 r.6(2) Santos was required to file and serve a list of documents

"which shall enumerate the documents which are or have been
in the possession, custody or power of the party making the
list."

His Honour's order required the list to be filed by 24 December 1992. In the event it was filed on 7 January 1993 and a supplementary list was filed on 16 April.

2. There has been debate between the parties about discovery relating to two events which occurred after the time fixed for discovery, namely the acquisition by Santos of a pipeline belonging to AGL, and the settlement by Santos of proceedings with Crusader Resources NL. Santos has voluntarily discovered documents in relation to those two issues. However, it maintains that it is under no obligation to make continuing discovery in the sense of discovery of documents which only came into its possession, custody or power after 24 December 1992.

3. Central to this question is O.15 r.7A which provides:

"Where a party has been required or ordered to give
discovery, that party shall be under a continuing obligation
to discover any documents not previously discovered and
which would otherwise be necessary to comply with the
requirement or order."

4. I think it is plain beyond argument that this amendment to the Rules, which was introduced in 1989, must have been made in the light of the decision of the Full Court in TNT Management Pty Ltd v Trade Practices Commission (1983) 47 ALR 693. In that case the Full Court held, in the words of McGregor J at 699

"There is no obligation on the respondent to update
discovery."

5. Similarly, Sheppard J said at 709 after referring to Mitchell v Darley Main Colliery Company (1884) 1 Cab and El 215 and Myers v Elman (1940) AC 282

"These cases are authority for the proposition that a person
who has made discovery pursuant to an obligation so to do is
obliged to make further discovery of documents in his
possession or power of which he becomes aware after the
original discovery is made. The cases are concerned not
with documents coming into his possession or power after
discovery has been made but with documents which were always
in his possession or power and which were omitted from the
original discovery through accident, oversight or deliberate
non-disclosure."

6. In my opinion, I do not think r.7A can be read, as Santos argues, simply as imposing an obligation on a party to discover documents which were in its possession, custody or power at the time at which discovery was originally made, and which it is subsequently realised should have been discovered. Such a construction would do no more than re-state what was clearly understood to be the law prior to the amendment, as appears from the passage of Sheppard J's judgment to which I have just referred.

7. In the context of TNT Management the use of the expression "continuing obligation" shows in my opinion a clear intention to extend what had previously been the obligation imposed on parties making discovery. The obligation was thenceforth to discover documents which subsequently came into the possession, custody or power of the party. The words "which would otherwise be necessary to comply with the requirement of order" are I think intended to ensure that the new documents match the description of the original order. For example, the order might, unlike the order in the present case, be limited to discovery on particular issues.

8. Santos pointed out that continuing obligation to make discovery would be very onerous, particularly in cases like the present one where it has already discovered some 65,000 documents as a result of the activities of 60 to 70 people working full-time. I accept that the obligations of discovery in the present case, both under the original order and under the continuing obligation which, in my opinion, r.7A imposes, are indeed onerous. But that is a choice which our system of litigation has taken, based on a view that the trouble and expense involved in discovery is a price which parties are required to pay to maximise the prospects of the ultimate result of the litigation being a correct and just one.

9. That is not to say that, where a contest arises as to the obligation to make further discovery in relation to some particular issue, the Court should not in the exercise of its discretion balance the demonstrated utility and degree of relevance of the discovery sought against the burden imposed, in the context of the litigation as a whole and the discovery already made. But what we are concerned with at the moment is the meaning, as a matter of principle, of the continuing obligation imposed by r.7A.

10. In the present case there can be some practical steps to minimise the inconvenience that would be caused by, for example, the possible obligation to file daily lists of documents. I shall direct the filing and serving of a further list of documents which have come into the possession, custody or power of Santos between 24 December 1992 and some recent date to be specified. I shall reserve liberty to apply in relation to any future affidavits which might be sworn so that the parties might work out a practical timetable.