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Federal Court of Australia |
Last Updated: 18 June 2007
FEDERAL COURT OF AUSTRALIA
Galati v Potato Marketing Corporation of Western Australia (No 2) [2007] FCA 919
PRACTICE AND PROCEDURE –
whether the giving of discovery would be burdensome – whether
discovery of specific categories of documents
should be ordered
Constitution ss 92,
109
Trade Practices Act 1974 (Cth) s 46
Marketing of
Potatoes Act 1946 (WA) ss 22, (1), (2), (7), 23, 24
Marketing
of Potatoes Regulations 1987
(WA)
Federal Court Rules
O 15 r 2(3), (5), (6)
ANTONINO
GALATI AND GALATI NOMINEES PTY LTD (ACN 009 320 503) v
POTATO MARKETING CORPORATION OF WESTERN AUSTRALIA
WAD 46 OF
2006
SIOPIS J
15 JUNE
2007
PERTH
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AND:
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THE COURT ORDERS THAT:
1. The matter be adjourned to a date to be fixed.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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BETWEEN:
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ANTONINO GALATI
First Applicant GALATI NOMINEES PTY LTD (ACN 009 320 503) Second Applicant |
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AND:
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POTATO MARKETING CORPORATION
OF WESTERN AUSTRALIA
Respondent |
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JUDGE:
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SIOPIS J
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DATE:
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15 JUNE 2007
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PLACE:
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PERTH
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REASONS FOR JUDGMENT
1 The first applicant is registered by the respondent as a commercial producer of potatoes in Western Australia and carries on business as such. The second applicant is the holder of permits issued by the respondent which permit it to carry on business as a wholesale potato merchant in Western Australia. The respondent is a statutory corporation created by the Marketing of Potatoes Act 1946 (WA) (MOP Act). The MOP Act provides for the establishment of a marketing scheme for commercially grown potatoes in Western Australia. One of the functions of the respondent is to regulate the production and marketing of ware or commercial potatoes (potatoes) in Western Australia. The powers given to the respondent include the power to register persons as authorised to carry on business as commercial producers of potatoes, to licence the areas of land to be used in the conduct of such business, to regulate domestic market entitlements and marketing pools, and to issue permits to persons to act as wholesale potato merchants.
2 Section 22(1) of the MOP Act makes it an offence for a commercial grower of potatoes to sell or deliver potatoes to anyone other than the respondent or its agent, and s 22(2) makes it an offence for any person other than the respondent or its agent to purchase or take delivery of potatoes from a grower not authorised by the respondent. The respondent has, pursuant to its powers under the MOP Act, appointed inspectors to enforce compliance with the MOP Act. The MOP Act gives inspectors extensive powers of search and seizure.
3 The applicants and the respondent have in the recent past had a turbulent relationship. There have been a number of instances where the respondent has refused applications made by the first applicant for area licences and domestic market entitlements. In 2004, the Minister for Agriculture, Forestry and Fisheries, directed the respondent to reverse its latest refusal of the applications.
4 Further, the respondent has since 2003 alleged on several occasions that the first applicant has grown potatoes in excess of his domestic market entitlement, or without an area licence. The respondent has threatened to prosecute the first applicant in relation to the alleged over-planting and has sought to invoke the provisions of s 22(7) of the MOP Act to impound the allegedly over-planted potatoes. There have been further occasions when the inspectors of the respondent have invoked their powers to seek to inspect the business records of the first applicant.
5 On 21 January 2006, the applicants commenced an originating application in this Court. By their amended statement of claim, the applicants claim a declaration that certain provisions of the MOP Act and Regulations are by reason of s 109 of the Constitution, and their inconsistency with s 46 of the Trade Practices Act 1974 (Cth) (TPA), invalid. Further, or alternatively, the applicants claim a declaration that the respondent has, by having engaged in certain pleaded conduct, contravened s 46 of the TPA. There is an additional claim for a declaration that certain provisions of the MOP Act and Regulations are invalid because they contravene s 92 of the Constitution.
6 By a letter dated 21 February 2006, the respondent issued a notice to the first applicant calling upon him to show cause why his registration to act as a commercial producer of potatoes should not be cancelled. On the same day the respondent also issued a notice to the second applicant calling upon it to show cause why its permits to act as a wholesale potato merchant should not be cancelled. Further, the respondent applied for an injunction restraining each of the applicants from acting in breach of s 22 of the MOP Act. Undertakings were given by each of the applicants. This claim now comprises the respondent’s cross-claim in this proceeding.
7 The parties have given discovery. However, the applicants claim that the discovery which has been given by the respondent is inadequate and by this application they seek orders that the respondent give discovery of documents in a number of nominated categories.
Background
8 Order 15 r 2(3) of the Federal Court Rules (the Rules) provides as follows:
Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given:
(a) documents on which the party relies; and
(b) documents that adversely affect the party’s own case; and
(c) documents that adversely affect another party’s case; and
(d) documents that support another party’s case.
9 Order 15 r 2(5) states:
For subrule (3), in making a reasonable search, a party may take into account:
(a) the nature and complexity of the proceedings; and
(b) the number of documents involved; and
(c) the ease and cost of retrieving a document; and
(d) the significance of any document likely to be found; and
(e) any other relevant matter.
10 Order 15 r 2(6) provides that:
If the party does not search for a category or class of document, the party must include in the list of documents a statement of the category or class of document not searched for and the reason why.
11 In its list of discovered documents, which was verified by an affidavit sworn by Mr John Dawson, the respondent’s Chief Executive Officer, on 25 September 2006, the respondent identified in Pt 3 of the First Schedule to the list, a number of categories of documents in respect of which it had not undertaken a search. Mr Dawson deposed that the respondent has not conducted a search of those categories because of the burden thereby imposed. The respondent, he said, had 11 full-time employees, and he believed that there were in the order of 100,000 documents that would need to be searched in relation to several of the categories identified. Mr Dawson went on to say that given the number of employees that the respondent has and the volume of documents to be searched, it would be necessary to engage external assistance to carry out this task. Accordingly, said Mr Dawson, he believed a search for those documents would be "very onerous, time consuming and expensive".
12 Conferral between the parties narrowed, but failed to resolve their differences in respect of the category of documents that should be discovered, and the applicants now seek orders that the respondent discover the following categories of documents:
(a) documents relating to decisions made by the respondent to refuse applications for area licences, transfers of area licences, lease and/or licence of area licences, domestic market entitlements and transfers of domestic market entitlements, made by the applicants and by other commercial producers of potatoes from 1 January 2003 to date;
(b) documents relating to the threatened cancellation in February 2006 of the first applicant’s registration as a commercial producer of potatoes and the second applicant’s permits to act as a wholesale potato merchant;
(c) documents in relation to actions taken, or not taken, by the respondent in relation to potatoes planted or grown, or allegedly planted or grown, by the first applicant and by any other commercial producers of potatoes in excess of his or her domestic market entitlement or without an area licence, from 1 January 2003 to date;
(d) actions taken by the respondent in respect of suspected, alleged, prospective and actual breaches by the applicants of s 22 of the MOP Act from 1 January 1998 to date;
(e) documents relating to all decisions made by the respondent not to take any action in respect of suspected, alleged, prospective and actual breaches by any person of s 22 of the MOP Act from 1 January 2003 to date;
(f) documents relating to the quality of potatoes imported into Western Australia and the price at which imported potatoes are sold to potato merchants and retailers from 1 January 2003 to date;
(g) documents relating to the problems experienced from 1 January 2003 to date in respect of anticipated, alleged or actual undersupply and oversupply of potatoes available to consumers in Western Australia; and
(h) documents relating to the actual and proposed merchant and grower price changes from 1 January 2003 to date.
13 The applicants say that the documents referred to in categories [12(a)] to [12(e)] and [12(h)] above relate to the allegations made in its claim that the respondent has acted in breach of s 46 of the TPA. The documents referred to in category [12(f)] and category [12(g)] relate to its claim that the impugned sections of the MOP Act are invalid as being inconsistent with s 92 of the Constitution.
14 The respondent contends that the resolution of the case as pleaded does not require discovery of the categories of documents sought by the applicants. Further, it is said that, even if the documents were otherwise discoverable, in the exercise of the Court’s discretion, discovery should not be ordered because the utility to the applicants of obtaining discovery of the documents, is outweighed by the burden that would be caused to the respondent in making such further discovery.
15 There are two issues which arise in relation to this application, namely:
(a) whether the documents are relevant to any matters which are in issue between the parties on the pleadings as they stand; and
(b) whether, in the exercise of the Court’s discretion, even if the documents are relevant to issues between the parties, the Court should order discovery.
Matters in issue between the parties
16 I deal, firstly, with the category of documents sought in relation to the claim that the respondent has acted in contravention of s 46 of the TPA.
17 The applicants contend that on the pleadings, the following issues are relevantly in dispute in relation to their claim that the respondent has acted in contravention of s 46 of the TPA:
(a) whether by engaging in the impugned conduct the respondent has prevented each of the applicants from entering into, or engaging in competitive conduct with the respondent, in respect of each of the markets pleaded by the applicants;
(b) whether the respondent engaged in the impugned conduct for the purpose of preventing the applicants entering into, or engaging in competitive conduct with the respondent in respect of each of the pleaded markets; and
(c) whether by engaging in the impugned conduct the respondent used a substantial degree of market power.
18 The applicants contend that the utility of obtaining discovery of the documents is that the documents may advance their case by showing that the respondent, in the way that it exercised its statutory powers, has treated the applicants less favourably than other growers and merchants, who have no interest in competing with the respondent. This will, in turn, so the applicants say, assist in supporting an inference that the respondent engaged in the impugned conduct for the proscribed purpose.
19 The respondent says that the real contest between the parties is concerned with whether the TPA has any application to the marketing scheme established under the MOP Act, whether the pleaded markets comprise markets in the relevant sense, and whether the applicants are precluded from competing with the respondent by reason of the operation of ss 22, 23 and 24 of the MOP Act, rather than by any conduct on the part of the respondent. Further, the respondent contends that it has made admissions in its defence that it engages in conduct to enforce the MOP Act and that the question of the subjective purpose with which the respondent has engaged in the impugned conduct does not arise on the pleadings. In addition, it is said that the pleading made no reference to any discrimination by the respondent between the applicants and other growers and merchants. Accordingly, says the respondent, discovery of the disputed category of documents is not necessary for the resolution of the dispute, and if it is, when weighed against the burden to the respondent of complying with such an order, the discretion to order discovery should not be exercised.
20 It is necessary to examine the pleadings to discern what is in issue between the parties. In this regard, I will only examine the pleas made in paras 6, 7, 8, 8A and para 9 of the statement of claim in relation to the purchase market, because the plea is mutatis mutandis repeated in paras 12, 13 and 13A in respect of the supply market.
21 The applicants plead in para 6 of the statement of claim that the respondent has a substantial degree of market power in the purchase market (as identified in the pleading) because it has, and exercises, a number of powers pleaded at paras 6.1 to 6.8 of the statement of claim. These powers include an alleged power arising under s 22 of the MOP Act, as well as the power to restrict the number of commercial growers, limit the number of potatoes grown and sold to the respondent, issue permits to persons to buy or sell potatoes, set or influence the price at which it buys potatoes, and to prosecute persons for breaches of s 22(1) and s 22(2) of the MOP Act and Regulations.
22 The applicants have, in answer 3 of their reply to the respondent’s request, provided particulars of the conduct which they say comprises the exercise by the respondent of its power under s 22 of the MOP Act. The conduct particularised includes making demands, prosecuting and threatening to prosecute commercial producers and suppliers of potatoes for breaching s 22, issuing infringement notices, seizing or threatening to seize potatoes, cancelling or threatening to cancel registrations, refusing to approve applications for registration, permits and licences, making compliance with s 22 a condition of permits, licences and registrations, requiring commercial producers of potatoes to dump or plough into the ground potatoes which are in excess of a grower’s domestic market entitlement or for which the grower did not have a licence to grow.
23 The applicants then plead in para 7 of the statement of claim that the respondent uses its substantial market power identified in para 6, to impose limits on the number and identity of commercial potato growers and on the amount of commercial potatoes the growers, including the first applicant, are permitted to grow, and to require that all the growers, including the first applicant, sell the potatoes to the respondent at a price fixed on the recommendation of the respondent; and further, other than in respect of potatoes exported from Western Australia, that they sell the potatoes exclusively to potato merchants, including the second applicant.
24 In para 8 of the statement of claim, the applicants plead that the second applicant wishes to compete with the respondent in the purchase market but upon the first applicant attempting to make ad hoc wholesale sales of potatoes to the second applicant and other persons, the respondent threatened to prosecute the applicants for breach of s 22 of the MOP Act and sought to seize potatoes from the first applicant.
25 The applicants plead in para 8A of the statement of claim, the respondent has engaged in the conduct pleaded at para 7 and para 8 of the statement of claim, for the purpose of preventing the second applicant from entering the purchase market or preventing the second applicant engaging in competitive conduct in the purchase market.
26 The applicants have given the following particulars of purpose:
A. The respondent has the functions pleaded in paragraph 3.3 above.
B. The respondent has the powers pleaded in paragraphs 6.1-6.7 above.
C. Pursuant to the MOP Act the respondent is required to exercise, and does exercise, its powers pleaded in paragraphs 6.1-6.7 for the purpose of performing the functions pleaded in paragraph 3.3, which necessarily requires the respondent to have the purpose pleaded.
27 In para 9 of the statement of claim, the applicants plead that by engaging in the impugned conduct, the respondent has prevented the applicants from entering the purchase market, and prevented them from engaging in competitive conduct with the respondent in that market.
28 It can be seen that the applicants rely upon the conduct pleaded in paras 6, 7 and 8 of the statement of claim in support of their claim that the respondent uses its substantial market power, and in para 8A the applicants plead that the respondent engages in that conduct for the purpose of preventing the second applicant from entering the purchase market or preventing the second applicant engaging in competitive conduct in that market.
29 Paragraph 9 of the defence pleads in response to para 6 of the statement of claim. Firstly, the respondent denies the allegation that it has a substantial degree of market power because, says the respondent, by the operation of ss 22, 23 and 24 of the MOP Act there is no market as pleaded and, therefore, there is no market power to be exercised.
30 The respondent then addresses the applicants’ allegation that by reason of the existence and exercise of what the applicants characterise as statutory powers, the respondent has a substantial degree of market power. I have found it a little difficult to discern precisely what is admitted by the respondent in its defence and I hope I do not do the respondent a disservice in the summary which follows. In para 9 of the defence, the respondent has, in general, admitted the existence of the statutory provisions referred to by the applicants in para 6 of the statement of claim, but pleaded its version of the content of the statutory provisions. Also in para 9.4(b) of its defence, the respondent has, perhaps unusually, pleaded to particulars provided by the applicants in answer 3 of its particulars referred to at [22] above, admitting that it engages in that conduct, but denying that it thereby has market power in the market as pleaded in the statement of claim. Otherwise, it appears that insofar as the applicants have characterised the relevant statutory provisions as giving the respondent powers which it exercises, the respondent, in para 9 of the defence, has denied that it exercises those powers. The respondent goes on to say that it does not by reason of the statutory provisions, have a substantial degree of, or market power in the purchase market as pleaded.
31 It is apparent from para 9 of the defence, and other pleas in the defence, that the parties take a different view of the characterisation of s 22(1) and s 22(2) of the MOP Act. As already mentioned, in para 6 of the statement of claim, the applicants plead that these two subsections comprise powers exercisable by the respondent. However, in para 9.4 of the defence, the respondent while admitting the content of s 22(1) of the MOP Act, says "that the operation of s 22(1) of the MOP Act does not involve the exercise of any power by the respondent".
32 Paragraph 10 of the defence responds to para 7 of the statement of claim. The respondent denies para 7 of the statement of claim. There is no formal admission in para 10 of the defence that the respondent exercises a power to grant licences, permits and authorisations, which limit the number and identity of commercial potato growers, but the respondent says that any power exercised to that effect does not involve the use of any market power in the market pleaded in the statement of claim or in the potential market. This paragraph of the defence also contains a plea that the requirement on the first applicant and other growers to deliver potatoes to the respondent is imposed by s 22 of the MOP Act, and not by any conduct of the respondent. The applicants in their reply have joined issue with the respondent in respect of this plea.
33 The respondent has pleaded to para 8 of the statement of claim in para 11 of the defence. Paragraph 11 of the defence appears to comprise a denial of the allegations in para 8 and the pleading by the respondent of its version of the relevant facts and circumstances and legal consequences flowing from those facts and circumstances. Certainly, from the denial in para 11.5 of the defence, it appears that the respondent has put in issue the allegation that the second applicant wishes to compete with the respondent and the circumstances in which the threats were made by the respondent to prosecute the applicants for a breach of s 22 of the MOP Act.
34 As previously mentioned, the applicants plead in para 8A of the statement of claim that the respondent was required by the MOP Act to engage in, and has engaged in the impugned conduct for the purpose of preventing the second applicant from entering the purchase market or preventing the second applicant from engaging in competitive conduct in that market. In para 12.4 of the defence, the respondent denies that it "has formed and acted for the purpose" alleged in para 8A of the statement of claim. It also denies that it was required by the MOP Act to engage in the impugned conduct, or that the MOP Act required it to act for the purpose alleged. The respondent then goes on to say that the incapacity of the second applicant to purchase potatoes from commercial potato growers is a result of the operation of s 22 of the MOP Act "and not any conduct of the respondent". In their reply the applicants join issue with the facts and matters pleaded in para 12 of the defence.
35 In para 13 of the defence, the respondent denies that it has engaged in the impugned conduct, or, by that conduct, prevented the applicants from entering the purchase market or engaging in competitive conduct with the respondent in that market.
36 In my view, the pleading of the defence puts in issue whether the respondent, in acting pursuant to powers given to it under the MOP Act, has engaged in conduct for the purpose of preventing the applicants from entering the purchase and supply markets, or engaging in competitive conduct with the respondent in those markets, whether that conduct has prevented the applicants from entering, or competing with the respondent in, the pleaded markets, and whether that conduct constitutes the use by the respondent of a substantial degree of market power.
37 I do not accept the respondent’s submission that the admissions in para 9.4(d) of the defence, and the manner of the particularisation of "purpose" by the applicants mean that there are no factual matters in issue on the pleadings between the parties.
38 As to the admissions, it is the case that the respondent has admitted in para 9.4(d) that it engages in conduct to enforce the MOP Act. However, two of the applicants’ central allegations are, firstly, that that conduct, as directed against the applicants specifically, as well as the exercise by the respondent of the other specified powers, has prevented the applicants from entering the markets pleaded, or from engaging in competitive conduct with the respondent; and, secondly, that that conduct was engaged in for the proscribed purpose. Each of these allegations is denied. The admission in para 9.4(d) of the defence does not address those allegations, which relate to the respondent’s conduct insofar as it affects and is directed towards the applicants specifically. The admission in para 9.4(d) is only in respect of the respondent’s conduct in general.
39 Further, in my view, the pleadings do raise the issue of the subjective purpose for which the respondent acted in engaging in the impugned conduct in respect of the applicants. The plea by the respondent in its defence is that it did not "form and act for" the proscribed purpose. The joinder of issue by the applicants with this plea is sufficient to put in issue the question of the actual purpose for which the respondent acted in preventing the applicants from entering into, or competing with the respondent in the pleaded markets. The use of the word "form" in this context suggests engaging in an actual mental process.
40 The documents in the categories identified in [12(a)] to [12(e)] above, all relate to the conduct particularised in answer 3 (at [22] above) as conduct comprising the exercise by the respondent of its power under s 22 of the MOP Act. I accept the submission of the applicants that the way the respondent has dealt with the applicants, who on the pleading wish to compete with the respondent, as compared to other growers in relation to the matters particularised in answer 3, can be relevant to the question of whether the respondent takes advantage of the alleged substantial market power, and also whether the respondent exercises its powers for the purpose of preventing the applicants from entering the pleaded markets and competing with the respondent.
41 In my view, in order to prove that the respondent had the proscribed purpose, it would be open to the applicants at the trial to lead evidence that the respondent dealt with the applicants less favourably than those growers and potato merchants who did not have a desire to compete with the respondent; as the basis for an inference that its purpose in doing so was to prevent the applicants, potential competitors, from entering the markets or competing with the respondent. It is not necessary to plead evidence. In my view, therefore, the documents in those categories are relevant to matters in issue and, subject to the question of the burden on the respondent in making discovery, would be discoverable.
42 As to the documents which relate to the setting of the price, in my view, those documents do not have the same relevance to the issue of the proscribed purpose as the documents referred to in [12(a)] to [12(e)] above. The respondent has already given discovery which deals with the question of the price at which potatoes are bought and sold. The applicants have not, in my view, demonstrated that further discovery is needed in respect of this category.
43 I now deal with the applicants’ claims for discovery of the documents in categories referred to in [12(f)] and [12(g)] above. It is said that these categories are relevant to the applicants’ case that these nominated sections of the MOP Act are invalid on the grounds that they contravene s 92 of the Constitution.
44 The applicants say that at trial they wish to make an alternative argument to the case that the MOP Act and Regulations are on their face discriminatory against interstate trade and protectionist of intrastate trade. This alternative argument is that the practical operation of the MOP Act and Regulations is discriminatory in a protectionist sense. The practical operation, say the applicants, of the MOP Act and Regulations is also relevant to the issue of whether the MOP Act and Regulations are "appropriate and adapted" to the fulfilment of a legitimate object, and, whether, therefore, the burden imposed on interstate trade is incidental and not disproportionate to the achievement of the legitimate object. The documents, say the applicants, are relevant to the practical operation of the Act and Regulations.
45 The respondent submitted that on the pleadings as they stand, there is no pleaded case which puts in issue the practical operation of the MOP Act and Regulations. Further, the respondent says that in the event that the statement of claim made allegations as to the specific facts and circumstances going to the practical operation of the Act, it may well be that the respondent would make admissions which would preclude the need for discovery.
46 The submission of the respondent is to be accepted. In my view, on the pleadings as they currently stand, the documents referred to in categories [12(f)] and [12(g)] above, do not relate to a matter in issue between the parties.
The burden on the respondent
47 Mr John Dawson has sworn an affidavit dated 13 December 2006 in support of the respondent’s contention that discovery should not be ordered because of the onerous burden that it would impose upon the respondent. Mr Dawson was appointed to his current position of Chief Executive Officer of the respondent on 1 December 2005.
48 Mr Dawson deposes that he requested employees to undertake investigations as to the number of documents held by the respondent which may fall within each of the categories of documents of which discovery is sought by the applicants.
49 Mr Dawson said that the documents held by the respondent comprised grower files, board documents, sub-committee documents, electronic documents and other documents. Mr Dawson deposed that there were approximately 430 grower files and each file contained approximately 100 multi-paged documents and there were, therefore, approximately 43,000 documents contained in the grower files. Further, he said that since January 2003, the respondent had held 47 board meetings and that there were approximately 50 board documents for each meeting. Further, since January 2003 the respondent had held approximately 20 sub-committee meetings which had been minuted. There were approximately 60 pages of documents comprising the minutes of these meetings. The respondent also had a large computer system containing a number of electronic files or documents which he referred to as the "electronic documents". By reference to the gigabytes used, he estimated that a printout of the computer files could produce in excess of 200,000 pages. The "other documents" comprised the files of management operations and executive staff of the respondent. Mr Dawson estimated that the hard copies of these files comprised over 20,000 multi-paged documents. In his affidavit, Mr Dawson referred to the documents identified in this paragraph, collectively as "all documents".
50 Mr Dawson also said that insofar as the applicants were seeking discovery of "internal correspondence", there were 12 employees in the respondent’s office and that communication is predominantly verbal and there was only limited internal correspondence created.
51 Mr Dawson said that he requested six of the respondent’s 12 employees to undertake investigations into the number of documents held by the respondent which may fall into each of the categories of documents in respect of which the applicants sought discovery.
52 As to documents referred to in category [12(a)], Mr Dawson said that on the basis of his knowledge and information obtained from other employees, there have been "very few occasions" on which applications for area licences, transfers of area licences, lease and/or licence of area licences, domestic market entitlements or transfers of domestic market entitlements, have been refused. However, even though it was expected that there would only be a few documents, the files of the respondent were not arranged by reference to refused applications. Accordingly, said Mr Dawson, "all documents" would need to be reviewed.
53 As to the documents referred to in category [12(b)], Mr Dawson said that he had been informed that there is only one document making reference to the threatened cancellation of the applicants’ registration and permits in February 2006, which is the letter referred to in [6] above. However, he went on to say that "in order to confirm this, all documents would need to be reviewed".
54 As to the documents referred to in category [12(c)], Mr Dawson said that "there would not have been many documents created in this category since January 2003". However, he said that, in order to find those documents, "all documents" would need to be reviewed.
55 In relation to the documents referred to in category [12(d)], Mr Dawson said that he had been informed that since 1998 there have been "a number of documents relating to the applicants which may fall into this category". It would be necessary to search "all documents".
56 As to the documents referred to in category [12(e)], Mr Dawson said that to respond to that request, "all documents" would need to be reviewed.
57 Mr Dawson said that he estimated that it "could take a person a number of weeks to properly conduct a search" of "all documents".
58 I am not satisfied that, on the affidavit evidence of Mr Dawson, the giving of discovery of the categories of documents which I have found relate to matters in issue, would be so burdensome to the respondent that an order for discovery of those documents should be refused.
59 Firstly, the evidence of Mr Dawson demonstrates that he appears to have misapprehended the nature of the search which needs to be carried out under the Rules, namely, a reasonable search. This is demonstrated particularly by his statement that in order to conduct a search in respect of the documents relating to the respondent’s threats in February 2006 to cancel the first and second applicants registration and permits respectively, it would be necessary to review "all documents" to confirm that there was only one document which related to this category. No explanation is given in Mr Dawson’s affidavit as to why it would be necessary to review documents going back to 2003, or the files of unrelated growers, in order to confirm whether documents exist in relation to an event which occurred in February 2006 and did not affect other growers.
60 Secondly, Mr Dawson’s affidavit does not disclose the internal processes adopted by the respondent when making a decision to refuse an application for an area licence or any of the other licences referred to in category [12(a)]. Nor does it disclose the processes adopted by the respondent in response to the circumstances described in [12(c)]; nor in relation to deciding on the appropriate response to breaches or suspected or reported breaches of s 22 of the MOP Act. Further, it is apparent from the correspondence exhibited to the affidavit of Ms Back, sworn 7 November 2006, in support of the applicants’ notice of motion, that in 2003 Mr Larry Hegarty, the Compliance Officer and Mr Brian Dickson, the Operations Manager of the respondent were each involved in communicating to the applicants the licence and compliance related decisions of the respondent of the kind referred to in [12] above. However, there is no evidence from Mr Dawson of having had, or attempting to have, specific discussions with Mr Hegarty or Mr Dickson as to the likely whereabouts of relevant documents within the respondent’s filing system with a view to avoiding the need to search all the documents; or if such discussions did take place, why neither Mr Hegarty nor Mr Dickson was unable to assist Mr Dawson in identifying measures to narrow the scope of the search. On Mr Dawson’s evidence, Mr Hegarty is a current employee of the respondent. In my view, inquiries of this nature would be made by a party conducting a reasonable search of the documents in its custody or possession. In the absence of evidence of such inquiries having been made, I am unable to conclude that a reasonable search for the documents in categories [12(a)] to [12(e)] above, would of necessity require a search of all the respondent’s documents, and would result in so burdensome a task for the respondent that it outweighs the forensic utility to the applicants in discovery being given of the relevant documents.
61 Accordingly, I will order that the respondent provide discovery of the
documents in the categories referred to in [12(a)] to [12(e)]
above. I will
hear the parties as to the precise terms of the order and as to the
question of costs.
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Solicitor for the Applicants:
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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