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Federal Court of Australia |
Last Updated: 9 October 2000
Finance Sector Union of Australia v Commonwealth Bank of Australia Limited
PRACTICE AND PROCEDURE - particular discovery - application to cross-examine on affidavit of discovery - whether affidavit is conclusive
Federal Court Rules O 15 r 8
Auspine Ltd v H S Lawrence & Sons Pty Ltd [1999] FCA 1749, followed
FINANCE SECTOR UNION OF AUSTRALIA AND KENNETH MACEY v COMMONWEALTH BANK OF AUSTRALIA LIMITED (ACN 123 123 124)
N 262 OF 1999
MOORE J
4 OCTOBER 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
1. Subject to further orders of the Court, the application to cross-examine Mr Pellegrini is adjourned generally.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
BETWEEN: |
FINANCE SECTOR UNION OF AUSTRALIA FIRST APPLICANT KENNETH MACEY SECOND APPLICANT |
AND: |
COMMONWEALTH BANK OF AUSTRALIA LIMITED (ACN 123 123 124) RESPONDENT |
JUDGE: |
MOORE J |
DATE: |
4 OCTOBER 2000 |
PLACE: |
SYDNEY |
Introduction
1 This is an application by the Finance Sector Union ("the Union") to cross-examine the deponent to an affidavit verifying discovery. Verified discovery has been given by the Commonwealth Bank of Australia ("the Bank") pursuant to an order for particular discovery made on 31 May 2000. The Bank is a respondent to proceedings brought by the Union and others as representative proceedings. The nature of the proceedings is apparent from a judgment of a Full Court dealing with a challenge to the continuation of the proceedings as representative proceedings: see [1999] FCA 1250; (1999) 94 FCR 179; 166 ALR 141.
2 The order of 31 May 2000 was as follows:
1. Verified discovery be given by the Commonwealth Bank of Australia Ltd by 28 June 2000 of documents, not otherwise discovered or exhibited to an affidavit, dealing with the subject matter of the emails, memoranda, facsimiles and like communications annexed or exhibited to the affidavits of Smith and Pellegrini to the extent that they concern the class of employees who might have been or were seconded to EDS.2. Adjourn the matter for further directions at 9.30 am on 25 July 2000.
3. The parties have liberty to apply on 7 days' notice.
3 This order was not opposed by the Bank given that some internal Bank documents were annexed or exhibited to affidavits relied upon by the Bank which were of a class that, it was accepted by senior counsel for the Bank, should be discovered.
The applicable principles
4 Before considering the particular circumstances in which cross-examination is sought, it is convenient to set out the applicable principles. They have recently been considered by O'Loughlin J in Auspine Ltd v H S Lawrence & Sons Pty Ltd (1999) FCA 1749. I am bound to apply the principles as his Honour identified them unless I am satisfied he was plainly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. The importance of this principle (as it applies to Full Courts) was discussed and emphasised in a recent judgment of a Full Court (delivered on 22 September 2000) in Telstra Corporation Ltd v Treloar (2000) FCA 1170. Senior counsel for the Union submitted I should be satisfied that O'Loughlin J was plainly wrong.
5 In Auspine Ltd v H S Lawrence & Sons Pty Ltd the Court was considering the cross-examination of a deponent to an affidavit verifying discovery in the following context. Pursuant to an order of O'Loughlin J, the parties filed affidavits verifying lists of documents to be discovered in the proceedings. The respondents claimed that Auspine's discovery was inadequate and sought particular discovery under O 15 r 8 of the Federal Court Rules. After inspecting the applicant's discovered documents, the respondents complained, among other things, that a document which had not been discovered was referred to in a witness statement filed on Auspine's behalf.
6 The deponent to this statement, Mr McGlone, was a senior officer of Auspine and a proposed witness for the applicant. In his statement, Mr McGlone referred to a report that he had prepared. The respondents sought an order for particular discovery, by notice of motion, of the report and the documents relied on in the preparation of the report. Pursuant to orders of the Court, the applicant filed an affidavit, deposed to by Mr McGlone, which stated that the report had been destroyed (and superseded by later drafts that had been discovered by the applicant); and, in relation to the papers relied on for the preparation of the report, "[a]ll documents in relation to this category have been discovered". That is, neither the witness statement nor the affidavit identified where in the applicant's verified lists the documents had been discovered. O'Loughlin J noted at par 21 (referring to the witness statement) that:
"this was not a helpful reply ... If, as Auspine claimed, the report had been discovered, it would have been a simple and cost-efficient exercise for Auspine to identify it by its number in one or other of the lists. That is to be preferred to having the requesting party, at great cost, expending much time in laboriously cross checking those thousands of entries whilst a search is made for the report."
The respondents sought leave to cross-examine Mr McGlone about the contents of the affidavit that dealt with the subject of Auspine's discovery. His Honour characterised the issue before him as follows at par 99:
"The subject matter of the dispute between the parties is the adequacy of the applicant's discovery. The respondent wishes to question that adequacy. To achieve their objective they must convince the Court that there are reasons why the Court should not treat the applicant's verified lists as conclusive."
7 His Honour refused the respondents application for leave to cross-examine Mr McGlone on his affidavit. At par 91, his Honour explained:
"At this stage, I am not in a position to reject these verified statements that have been made in the name of Auspine; I can only proceed upon the premise that I should accept Auspine's assertions and then order them to supply copies of the documents and identify where, in their lists, the documents have been discovered."
And later, at par 105:
"I confess to having had misgivings about Auspine's refusal to cooperate with the respondents by identifying where, in the verified lists of documents, the respondents might find documents that Auspine maintained that it had discovered. But on reflection, and as I consider that this litigation has been conducted to date by both sides with a determination to make the task of the other party as difficult as possible, I have concluded that Auspine's conduct is but an example of a deliberate decision not to offer aid or assistance to an opponent. I do not infer from this conduct that there has been a deliberate obstruction of the discovery process."
8 In the course of reaching various conclusions, O'Loughlin J reviewed Australian authorities on the question of cross-examination on affidavits of discovery. His Honour began by stating the general principle that "cross-examination of a deponent to an affidavit in interlocutory proceedings is an issue that falls within the discretionary power of the judge": par 96. The discretion whether to allow cross-examination is to be exercised according to the requirements of justice: Re John O'Brien; Ex parte Allchurch [1923] SASR 411 at 421.
9 His Honour then considered the authorities that deal directly with the question whether affidavits of discovery are conclusive. His Honour (par 98) distilled two propositions from Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341, first, contentious affidavit material does not extend the discovery process; and, secondly, with some exceptions, the normal rule is that the affidavit of discovery is conclusive.
10 In that case (at 343), Menzies J held that, in an application for further discovery under the Rules of the High Court, it cannot be shown by a contentious affidavit that the discovery made is insufficient. His Honour said:
"Before 1912, it was thought that the insufficiency had to appear from the pleadings, the affidavit of documents itself or the documents therein referred to. However, in British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] 1 KB 369; [1912] AC 709, it was established that the insufficiency might appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable document. Furthermore, it is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive."
11 O'Loughlin J viewed the principles applicable in cases dealing with applications to cross-examine deponents to affidavits of discovery, which involved claims of legal professional privilege, as equally relevant to the broader subject of discovery. First, his Honour cited Giles J in Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 at 366:
"The affidavit of discovery is generally conclusive not only in relation to the amplitude of discovery but also in relation to any claim to protection from inspection of a discovered document, including a claim to legal professional privilege, and in particular cross-examination of the maker of the affidavit will not be permitted. No relevant exception to this position has been introduced by rules of court."
12 Reference was made to National Crime Authority v S (1991) 29 FCR 203 at 211, in which Lockhart J indicated that courts should not be slow to permit cross-examination of deponents to an affidavit of discovery, where there are claims of legal professional privilege and said:
"Although an affidavit in this form is usually sufficient and uncontroversial, the potential for abuse is obvious."
O'Loughlin J noted that these remarks, which were endorsed by Gummow J in Hartogen Energy Ltd v The Australian Gas Light Co (1992) 36 FCR 557, point "to some degree of relaxation in the old rule that an affidavit of discovery is usually taken to be conclusive; but I do not see it as anything more than a relaxation to some degree": par 102.
13 His Honour went on to discuss Olympic Airway SA v Spiros Alysandratos and Consolidated Travel (Victoria) Pty Ltd (unreported, Supreme Court of Victoria, 26 May 1997, Harper J), in which cross-examination on an affidavit of discovery was allowed. In that case, the plaintiff sought particular discovery from the two defendants (the first defendant was a principal shareholder of the second defendant). The documents in question had not been discovered by the defendants, although they had been relied upon by the defendants' accountants in preparing a report that included profitability forecasts. (These forecasts were alleged by the plaintiff to form part of representations made to it by the defendants when negotiating its purchase of an interest in the defendant group of companies.) The first defendant swore an affidavit denying that the documents had ever been in the second defendant's possession.
14 Harper J held that the deponent ought to be made available for cross-examination on his affidavit. His Honour stated that there are good policy reasons, in general, for not allowing cross-examination on affidavits of discovery. However, as Harper J observed, the circumstances of the case before his Honour were:
"unusual in that here there is cogent evidence to suggest the existence of documents which one would expect, if they do or did exist, were generated by one or other of the defendants. The evidence that the documents either never existed or, if they do or did exist were never in the possession of the defendants, is (it seems to me) much less cogent. If the documents do exist but are not discovered then (given their relevance to this proceeding) an injustice might be done to the plaintiff. The only procedure available to ensure that injustice is not done, and to ensure that the processes of the Court are not abused, is cross-examination."
15 O'Loughlin J also discussed Australian Securities Commission v Zarro (No 2) (1992) 34 FCR 427, a case in which Drummond J allowed cross-examination. O'Loughlin J explained this decision as follows (at par 104):
"That was a case where there has been a claim that certain documents were protected from disclosure on the ground of public interest immunity. His Honour said at 431 that he had taken what he described at [sic] `this exceptional course' `...because of concerns at what had emerged with respect to the way the Commission had gone about claiming immunity and because of concerns at the reliability of Mr Adams' final claim to immunity for certain of the documents, in view of the change of ground, and in view of the contents of all three affidavits'."
16 O'Loughlin J considered that the general principle remains that an affidavit of discovery ought to be regarded as conclusive, subject to some exceptions. Although this rule is now less rigidly applied, it has not been abolished: par 108. His Honour's review of the authorities reveals that, where cross-examination is permitted on such affidavits, it has been in order to do justice between the parties or to prevent an abuse of the Court's processes.
17 It was submitted by senior counsel for the Union, as I understood the submission, that the correct approach was to proceed on the basis that the Court had a general discretion to determine whether it was appropriate to permit cross-examination in each case. At least implicit in this submission is that the Court should not start from the position that cross-examination should not be permitted. Senior counsel for the Union provided extensive written submissions concerning the development of the approach of courts to this question of the cross-examination of a deponent to an affidavit verifying discovery. The submissions were to the following effect.
18 The submission traced the origins of discovery procedures to the English Courts of Chancery. Senior counsel submitted that, although the Courts were limited merely to putting the defendant on oath, the modern Rules of Court that govern the discovery process and the common law allow for greater flexibility. In effect, there is nothing to preclude a Court ordering the cross-examination of a deponent on his or her affidavit of discovery.
19 At par 11 of his submissions, senior counsel relied on the similarity between O15, r 8 and its English equivalent (O 31 of the Supreme Court Rules) to suggest that the advent of the procedure of allowing discovery by lists has done away with the presumption that an affidavit verifying discovery is conclusive. He drew this conclusion from the commentary on O 31 in the English Supreme Court Practice:
"It was well established under the former O 31 in the days before discovery was given by lists, that statements in a party's affidavit of documents are conclusive - for example, on the question whether he has or has had any documents other than those disclosed."
20 The relaxation of the rule was said to have begun in Attorney-General v Emerson (1882) 10 QBD 191. In Chowood v Lyall [1929] 2 Ch 406, Clauson J cited Emerson as authority for the proposition that an affidavit verifying documents is conclusive. Senior counsel submitted:
"It is said that Emerson modified the formerly strict rule so that where the Court is reasonably satisfied upon the statement of the party from whom discovery is sought that he has erroneously represented or misconceived the nature of the documents in question a further affidavit will be directed." [par 11 of the written submissions of the applicant]
21 Senior counsel relied on the commentary to O 15, r 8 in Butterworths' Practice and Procedure: High Court and Federal Court of Australia par [40,800.5]:
"[Rule 8] enlarges the power to order discovery, enabling a party, even though his opponent's affidavit of documents may be sufficient in point of form, to make an application supported by an affidavit, for an order that his opponent shall state whether he has or has had in his possession or power any specific document or documents."
However it should be noted that the paragraph following this extract refers to the necessity for an order for a further list of documents to be filed. There is no mention of an order permitting cross-examination on an affidavit verifying the list.
22 Senior counsel then discussed Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 (discussed by O'Loughlin J in Auspine), in which Menzies J:
"refers to the decision in British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] 1 KB 369 as establishing that insufficiency of discovery might appear not only from the documents but also from any other source that constitute [sic] an admission of the existence of a discoverable document. His Honour went on:`Furthermore, it is not necessary to infer the existence of a particular document: it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive.'
It is of interest that Menzies J cites no English or Australian authority for the proposition of conclusiveness of a verifying affidavit but appears to have generally followed the early English practice in Chancery." [par 12 of the written submissions of the applicant]
23 It was submitted that the Federal Court Rules do not contain, in terms, specific provisions on the cross-examination of a person who verifies discovery nor is there a specific provision treating such an affidavit as conclusive.
"O 15, r 8 gives the Court power to require an affidavit to be filed dealing with specific documents or class of documents stating whether they have been in the person's possession, custody or power but if no longer in possession, custody or power when it was parted with and what has become of it and to serve the affidavit on any other party. This is a substantial advancement on the old Chancery practice and does not indicate that the Court is deprived in any way of making an order requiring the deponent to an affidavit verifying documents to be present for cross-examination." [par 13 of the written submissions of the applicant]
It was further submitted that this Court has absolute control of the process of discovery by virtue of O 15, r 8 and s 193 of the Evidence Act. Section 193(1) of that Act provides:
"Additional powers193. (1) The powers of a court in relation to:
(a) the discovery or inspection of documents; and
(b) ordering disclosure and exchange of evidence, intended evidence, documents and reports;
extend to enabling the court to make such orders as the court thinks fit (including orders about methods of inspection, adjournments and costs) to ensure that the parties to a proceeding can adequately, and in an appropriate manner, inspect documents of the kind referred to in paragraph (b) or (c) of the definition of "document" in the Dictionary."
Therefore "it can no longer be suggested that the old Chancery practice as to the conclusiveness of an affidavit verifying documents still applies or indeed has utility. Senior counsel for the applicant cited Caltex Refining Company Pty Ltd v AMWU (1990) 51 IR 113 in support of this submission. In that case, a Full Court of this Court considered an objection to an application for discovery on the ground that the application was "all a giant fishing expedition". Burchett J observed at p 116 that such objections do not now have the weight they were once thought to have. His Honour said:
"Modern procedures actually provide as something desirable for what might once have been criticised as fishing - see O 15A of the Rules of this Court, particularly r 6. It would be ironic if the Court refused an Applicant, on this basis, discovery after action, when discovery could have been obtained, at the expense of incurring extra cost, by an application before action.Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice. The real objection which, in some cases, justifies discovery being limited to particular issues is the objection of oppression."
24 Senior counsel then referred to the purpose of discovery, ie "the discovery of any document which may fairly lead to a train of inquiry which may directly or indirectly enable one party to advance its own case or damage that of its opponents": Commonwealth v Northern Land Council (1991) 30 FCR 1 at 23-24; Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345. This purpose is said to "[travel] well beyond the strictures of the old Chancery practice".
25 Senior counsel invited this Court to read the rules and the authorities on the general subject of discovery together with O 14 r 9(1), which provides that a party may require a person who has made an affidavit to attend for cross-examination. Senior counsel for the applicant submitted that there is no relevant limitation on this rule. He suggested that the presumption of conclusiveness of an affidavit verifying discovery is now probably an unjustified impediment to doing justice between the parties; and relied on Caltex Refining Company Pty Ltd v AMWU for this proposition.
26 Two decisions of the Supreme Court of New South Wales are cited as authority for the proposition that it is unwise for a Court to restrict its inherent power: McLean v Burns Philp Trustee Co Pty Ltd [1985] 2 NSWLR 623 at 646; Gollin Holdings Ltd v Adcock [1981] 1 NSWLR 691 at 696.
27 Dealing specifically with the question of the conclusiveness of affidavits verifying discovery, senior counsel submitted that the rule has been relaxed and that, in any event, the Courts have developed exceptions to the rule. First, the presumptive rule will be displaced:
"Where a Court is satisfied that there are reasonable grounds for being fairly certain that there are other relevant documents in the possession or power of the party which ought to have been discovered ...: Beecham Group Ltd v Bristol Myers Co [1979] VR 273 at 276; British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] 1 KB 369. A Court can be satisfied that such an affidavit cannot be relied upon because the possession of further discoverable documents or classes of documents have been sufficiently demonstrated: Wellcome Foundation Ltd v V R Laboratories (Aust) Pty Ltd (1981) 55 ALJR 249." [par 18(ii) of the written submissions of the applicant]
Secondly, in the Supreme Court of New South Wales, it has been said that there may be "special grounds to allow a party to interrogate with a view to challenging the sufficiency of the list or the affidavit: American Flange v Rheem (Aust) Pty Ltd [1965] NSWR 193 at 196." Thirdly, "the practice that an affidavit of documents is conclusive does not apply in the context of an application under O 15, r 8", citing Weir v Greening [1957] VR 296 at 298.
28 Senior counsel relied on dicta in Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359. In that case, Giles J did not permit cross-examination of a deponent to an affidavit of discovery but his Honour considered this a not particularly satisfactory result. Giles J referred to the decision in Young v Quinn (1985) 59 ALR 225, in the Full Court of the Federal Court, in which Bowen CJ did not rule out the possibility of allowing cross-examination on an affidavit of a non-party claiming immunity on public interest grounds. Beaumont J indicated that he would be prepared to allow such cross-examination in an appropriate case. Sheppard J noted that it is not usually permitted but it is unclear whether he would have allowed cross-examination in an appropriate case.
29 Senior counsel pointed out that there were no submissions before Giles J either drawing to his Honour's attention authorities supporting cross-examination nor the proposition that his Honour was not precluded from allowing cross-examination because there are no rules of Court specifically prohibiting cross-examination. Giles J said at 367:
"It may be that after argument addressed to the question it could be recognised that the practice of the Court of Chancery over a hundred years ago should no longer condition a claim to privilege in an affidavit of discovery, and that the Court should adopt a different practice. The matters to which I have referred ...were not the subject of argument before me, and this is not the case for considering doing so."
30 In summary, the submissions made on behalf of the Union, as I understood them, invite me to approach the matter on the basis that because the Court has absolute control over the discovery process, it should not act on a presumption that an affidavit verifying discovery is conclusive (and therefore cross-examination on that affidavit will not be permitted) in the interests of doing justice between the parties.
31 While I accept that there may be reasons of substance for the relaxation of the approach of the type taken by O'Loughlin J (and there are countervailing considerations why it should not be relaxed), I am not persuaded the approach his Honour adopted was plainly wrong. While his Honour did not refer to s 193 of the Evidence Act 1995 (Cth), that section (assuming it is intended to relate to pre-trial discovery) appears to me to do no more than confer a power on the Court that may then be exercised judicially in accordance with established principle. It is, in this respect, much the same as a section conferring a power to order costs. Accordingly I consider I should proceed on the basis that an affidavit verifying discovery or an affidavit supplementing the affidavit verifying discovery should ordinarily be treated as conclusive and cross-examination should be permitted only in order to do justice between the parties or to prevent an abuse of the Court' s processes.
Cross-examination in the present case
32 In this matter the affidavits in question are affidavits sworn by Mr Milano Pellegrini. The first, and principal affidavit, was one sworn on 21 July 2000 verifying (and accompanying) a list of documents filed on that day. The second was a supplementary affidavit sworn on 6 September 2000 and the third was another supplementary affidavit sworn on 7 September 2000. The order for particular discovery is set out in par 2 of these reasons. The order was made because when the trial in this matter commenced in February this year (a trial which was aborted when differences arose between the parties about the production of documents) it was apparent that the Bank proposed to rely on two particular affidavits which had exhibited to them a large number of documents. One of these affidavits was sworn by Mr William Smith on 4 February 2000. Mr Smith was a human resources manager employed by EDS (Australia) Pty Ltd ("EDS") (though it may be that who his true employer was is caught up, indirectly, in the issues raised in these proceedings). The other affidavit was an earlier affidavit of Mr Pellegrini sworn on 1 February 2000. Mr Pellegrini was a human resources executive with the Bank. Some other documents exhibited to these affidavits, which plainly the Bank thought were relevant, had not been provided to the Union during the process of informal discovery and inspection that had taken place prior to the trial. Counsel for the Union took the position that their client was entitled to inspect any documents in the Bank's custody, control or possession which dealt with the same subject matter as the documents annexed or exhibited to the affidavits of Mr Smith and Mr Pellegrini. Senior counsel for the Bank accepted the force of what was being put by the Union and ultimately, as I recall events, consented to the order in par 2.
33 A number of complaints were made by the Union about the list filed on 21 June 2000 in compliance with the order though most of the points of complaint have been resolved. However there remains one issue, pressed by the Union, that founds the application of the Union to cross-examine Mr Pellegrini. The list filed on 21 July 2000 was in the common form. It contained two schedules of documents and schedule 2 was said to enumerate documents that had been in the possession, custody or power of the Bank but which were no longer in its possession, custody or power. Schedule 2 itself stated:
Schedule 21 The originals of copies listed in Part1 of Schedule1.
2 Documents relating to the strategic alliance between the Respondent and EDS.
In the statement preceding the two schedules the following is said about the documents referred to in paragraph 2 of schedule 2:
(b) To the best of the Respondent's knowledge, information and belief, the documents referred to in paragraph 2 of Schedule 2 were last in the Respondent's possession, custody or power in early 1998(c) To the best of the Respondent's knowledge, information and belief, the documents referred to in paragraph 2 of Schedule 2 were discarded.
(Emphasis added)
34 The effect of these two extracts from the list filed by the Bank, including the affidavit of Mr Pellegrini verifying it, was that the Bank was saying it had had documents relating to the strategic alliance between it and EDS but in 1998 those documents ceased to be in the possession, custody or power of the Bank because they had been discarded. At a hearing on, I recall, 21 August 2000 I indicated that it would be appropriate for Mr Pellegrini to swear a further affidavit explaining what he meant by "discarded". This he endeavoured to do in his supplementary affidavits of 6 and 7 September 2000. In the affidavit of 6 September 2000, Mr Pellegrini explained that in early 1998 he had been employed in an area of the Bank which he described as the Technology Operations and Property business unit ("the Unit") and, within that area, in a section providing human resources services to that Unit. There were approximately 20 other employees in that section. He and others held documents relating to the strategic alliance between the Bank and EDS. In the affidavit he described the classes of documents held by him and the other employees and he provided examples of such documents by reference to discover documents. He said that in early 1998, after what he described as "the transition of Bank employees to EDS" some of the documents that had been held within the section were taken from the office. Other documents were retained. He said:
I did not know at the time that the documents were taken and I do not now know to where those documents were taken or what happened to them.
35 Mr Pellegrini went on to say that he used the word "discarded" in the list of documents because he had not seen the documents since early 1998 and was not otherwise aware of what happened to the documents. He expressed the view that the Bank no longer had those documents in its possession, custody or control as they would have, he believed, come to his attention during searches undertaken during the discovery process if they had been in the possession, custody or control of the Bank. Mr Pellegrini swore an affidavit the following day, 7 September 2000, in which he said he had been informed (it appears in the preceding 24 hours) that the documents relating to the strategic alliance between the Bank and EDS were also taken from other offices in the Unit in early 1998. He indicated that he believed those documents were no longer in the possession, custody or control of the Bank with a qualification that, if they were, they would have been included in the discovery made by the Bank as a result of searches made within the Bank.
36 During the period in which the Union and the Bank have been in dispute about the discovery of documents, the Union has served subpoenas on EDS and companies related to EDS. Objection has been taken by those companies to the subpoenas and they have moved to set them aside. In an affidavit in support of that application, an employee of EDS, Mr Imseih (who describes himself as a senior contract negotiator), explained his role since November 1997 in the steps taken by EDS in assuming the provision of information technology and telecommunication services to the Bank. The subpoenas were in a common form and sought the production of, inter alia, documents which comprised the "contract and/or arrangement and/or agreement and/or understanding referred to or known as the strategic alliance between the Bank and EDS (and related companies)". In the affidavit Mr Imseih said, in effect, he did not know what was meant by the expression "the strategic alliance". If I understand correctly the import of this evidence, it creates an apparent tension between the understanding of the person advanced by EDS as able to deal with the demand for documents embodied in the subpoenas, and the understanding of Mr Pellegrini advanced by the Bank as the person able, on the Bank's behalf, to deal with a not dissimilar demand resulting from an order for particular discovery. What I mean by an apparent tension is that the Bank speaks in its list filed pursuant to the order for particular discovery of a class of documents relating to a strategic alliance with EDS but that concept, or at least the term, apparently has no meaning to EDS.
37 It is not entirely satisfactory that the Bank can, on one hand, describe, in a list filed pursuant to an order of this Court, documents as relating to a "strategic alliance" with another company and for that company to say it does not know what that means. However that may not result from anything Mr Pellegrini has done in the sense that the expression "strategic alliance" may be an expression known to him, used by him and which had currency in the Bank in at least 1998 and perhaps later. In terms of the specific evidence he has given about the fate of the "discarded" documents, I am presently satisfied that it sufficiently explains what documents were discarded and why the Bank is able to say that the documents were once in its possession, custody or power and now no longer are. I am not satisfied that a case has been made out for the cross-examination of Mr Pellegrini.
38 Discovery can impose a significant burden on a party and courts are moving away from a position where, in substance, parties are afforded an unfettered opportunity to obtain access to all documents by means of discovery. This is reflected in Practice Note No 14 issued by the Chief Justice of this Court on 3 December 1999. This is litigation which appears to arise under the Workplace Relations Act 1996 (Cth) and, prima facie, costs cannot be awarded. If this characterisation of the litigation is correct then particular care should, in my opinion, be exercised in ordering discovery. That is not to say, however, that a party to litigation of this character should not have appropriate access to documents held by an opposing party if they are likely to have a material bearing on the litigation.
39 While I have concluded that there should be no cross-examination of Mr Pellegrini at this stage, I do not intend to foreclose entirely his cross-examination after I have dealt with the subpoenas directed to EDS and related companies and considered further this apparent anomaly concerning documents relating to the "strategic alliance". Accordingly I propose to take the formal step of adjourning the application to cross-examine Mr Pellegrini rather than making an order dismissing it at this stage.
I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. |
Associate:
Dated: 4 October 2000
Counsel for the applicants: |
Mr W R Haylen QC |
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Solicitor for the applicants: |
Geoffrey Edwards & Co |
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Counsel for the respondent: |
Mr J Fernon |
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Solicitor for the respondent: |
Freehills |
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Date of Hearing: |
21 August 2000 |
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Date of Judgment: |
4 October 2000 |
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