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Federal Court of Australia |
Last Updated: 26 April 2000
South Sydney District Rugby League Football Club Ltd v News Ltd
SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED v NEWS LIMITED & ORS
N 1295 of 1999
FINN J
17 APRIL 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
1. that particular discovery be given of the documents categorised in the notice to produce served on the fourth respondent, save that no order be made for discovery of the documents in category 2 or in category 4 beyond what is conceded to be discoverable by the fourth respondent.
2. costs of the notices of motion be costs in the cause.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
JUDGE: |
FINN J |
DATE: |
17 APRIL 2000 |
PLACE: |
SYDNEY |
1 I have before me a series of notices of motion to set aside both a number of notices to produce and subpoenas. Save in relation to one recipient of a subpoena that is a firm of accountants, all bodies on whom the subpoenas were served were, or are now for reasons I will note, parties to the action.
2 I indicated during the hearing that I was of the view that the use of the subpoena rather than the discovery process under O 15 of the Federal Court Rules to obtain documentation from a party to a proceeding was an abuse of processes of this court. This has been emphasised on a number of occasions in recent decisions of this court: see eg Pasini v Vanstone [1999] FCA 1271.
3 Notwithstanding the view I have taken of the present use of subpoenas I have taken the view in the interests of ensuring that this matter is ready for trial - it has been set down for hearing in June - that the present motions be treated as ones under O 15 r 8 of the Rules for particular discovery. The subpoena directed to the non-party accountants does not fall within this, though I understand that it will be responded to consistently with the rulings I make below on the objections to the notices to produce.
4 By way of background, the application in this matter was filed on 12 November 1999. Shortly stated in its nature it makes claims under s 45 and s 52 of the Trade Practices Act 1974 (Cth) and for breach of contract in relation to what I will for present purposes call the post Super League rugby league competition and its contraction to 14 teams.
5 On 29 February 2000 I made consent orders for discovery of classes of documents that had been agreed by the parties. Subsequent to that order the subpoenas and notices to produce that are now in issue were issued or served. This occurred, I would emphasise, after discovery but prior to the application, also heard today, to further amend the statement of claim.
6 The statement of claim has gone through a number of iterations. Today I granted leave to file a second further amended statement of claim, a document which is extensively particularised. In addition three parties were added to this proceedings. They also were recipients of the subpoenas. The objections in relation to the subpoenas as directed to those three parties do not carry the same force as in relation to existing parties.
7 Insofar as the present notices of motion to set aside the subpoenas and notices to produce are concerned I have proceeded by reference to one notice to produce, it being understood that, in light of the rulings made in relation to it, the parties themselves will be able to resolve their differences in relation to the remaining subpoenas and notices to produce. The notice to produce in question was served on the fourth respondent in the present proceeding, National Rugby League Limited ("NRL").
8 In relation to the five categories of document referred to in the notice, NRL objects to production of documents under two categories. These relate to categories 2 and 4 which are in the following terms:
"2. All documents evidencing or recording any representations of financial support by News Limited of Canberra District Rugby League Football Club Limited or the team "Canberra Raiders" provided to NRL and/or Ernst and Young in about September or October 1999.4. All documents provided to NRL and/or Ernst and Young during the criteria admission process in the 1999 season by each of the following entities:
(a) Valimanda Pty Limited;
(b) AH CB Pty Limited;
(c) Brisbane Broncos Corporation Pty Limited;
(d) Melbourne Storm Football Club Limited;
(e) Canberra District Rugby League Football Club Limited;
(f) Brisbane Broncos Rugby League Club Limited;
(g) Cowboys Rugby League Football Limited;
(h) Canterbury-Bankstown Rugby League Club Limited;
(i) Cronulla Sutherland District Rugby League Football Club Limited;
(j) Penrith District Rugby League Football Club Limited; and
(k) Auckland Warriors Rugby League Limited."
9 In relation to category 2, the objection is taken on the basis that there is no issue in the present proceedings as to the solvency of Canberra Raiders. As to category 4, the objection is that, to the extent that the documents sought relate to matters going beyond the basic factual questions raised by the proceedings, they should not be produced. Put shortly, the factual matters identified by the respondents as being in question relate to (1) the funding provided by News Ltd to Super League clubs; (2) whether two of the clubs, Melbourne Storm and North Queensland Cowboys, satisfied solvency criteria; (3) the profitability of Super League clubs; and (4) the sponsorship and/or income of Melbourne and Penrith. Both objections were in my view well made.
10 In 1999 amendments were made to the Rules manifesting a quite new and restrictive policy in relation to the discovery to be allowed in this Court. I refer in particular to the limitation imposed in O 15 r 2(3). For present purposes I need not determine the extent to which that policy carries over into the province to be given O 15 r 8 as the matter presently in issue can be determined by reference to the terms of the subrule itself. I would, however, observe in passing that in the breadth of the material sought in the notice to produce it does appear to me a distinct question is raised as to whether, if allowed to be used as proposed in this case, O 15 r 8 would in effect subvert the policy reflected in the rule to which I have earlier referred. In making this observation, I do not regard myself here as saying anything inconsistent with Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 62 FCR 424 on the inter-relationship of O 15 r 2 and O 15 r 8. I am merely suggesting that there probably should be consistency in the scope given, and the animating policy of, discovery across O 15.
11 Order 15 r 8 provides:
"Order for particular discovery8 Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document 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 -
(a) to file any 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 has become of it; and
(b) to serve the affidavit on any other party."
The question presently raised is whether either of the two categories of document to which objection is taken relates to a "matter in question in the proceeding".
12 As indicated by Sir Douglas Menzies in Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345, the place to determine what are matters at issue between the parties is in the pleadings. As I have earlier indicated not only has discovery taken place (albeit limited to agreed categories of documents), but today leave was given to file a second further amended statement of claim that particularises the applicant's claim as it is presently conceived. Those particulars do not put into question the solvency of Canberra Raiders, though they do of two other clubs for the purpose of alleging a breach of implied terms of contract. Neither do they relevantly put in question matters beyond the four basic factual questions to which I earlier referred. At best they can be said to relate in some speculative way to the subject matter of the breach of contract claim.
13 In these circumstances while the documentation sought may possibly have lead at a future date to the identification of some new and additional matters that could be put in question between the parties, they do not relate to any existing matter in question in the proceeding as I understand the meaning of that term in O 15 r 8 of the Rules.
14 Accordingly I would not order discovery of the documents in category 2 nor would I order discovery in category 4 beyond what is conceded to be discoverable by the fourth respondent. The costs of the notices of motion are to be costs in the cause.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. |
Associate:
Dated: 20 April 2000
Counsel for the Applicant: |
Mr R White SC with Mr M Scheib |
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Solicitor for the Applicant: |
Nicholas G Pappas & Company |
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Counsel for the First and Second Respondents: |
Mr M Ball |
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Solicitor for the First and Second Respondents: |
Allen Allen & Hemsley |
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Counsel for the Third Respondent: |
Mr J E Robson |
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Solicitor for the Third Respondent: |
Colin W Love & Co |
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Counsel for the Fourth Respondent: |
Mr A J Meagher SC |
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Solicitor for the Fourth Respondent: |
Minter Ellison |
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Counsel for the Fifth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth and Twentieth Respondents, Valimanda Pty Ltd, AH CB Pty Ltd, Brisbane Broncos Corporation Pty Ltd: |
Mr P Brereton |
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Solicitor for the Fifth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth and Twentieth Respondents, Valimanda Pty Ltd, AH CB Pty Ltd, Brisbane Broncos Corporation Pty Ltd: |
Henry Davis York |
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Date of Hearing: |
17 April 2000 |
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Date of Judgment: |
17 April 2000 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2000/519.html