Metcash Trading Limited v Bunn [2010] FCA 8 (19 January 2010)

Last Updated: 19 January 2010

FEDERAL COURT OF AUSTRALIA

Metcash Trading Limited v Bunn [2010] FCA 8

Citation:		Metcash Trading Limited v Bunn [2010] FCA 8
Parties:		METCASH TRADING LIMITED (ACN 000 351 569), IGA DISTRIBUTION PTY LTD (ACN 004 391 422) and AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) v PETER CHADLEY BUNN
File number:		SAD 29 of 2006
Judge:		LANDER J
Date of judgment:		19 January 2010
Catchwords:		PRACTICE AND PROCEDURE – respondent seeking order for further and better discovery – Order 15 rule 8 of the Federal Court Rules introduced to obviate the hardship of the rule that the affidavit of discovery is conclusive – parties should make discovery of documents which relate to an issue raised on the pleadings – party seeking further and better discovery must establish that there is a document or class of documents which “may be or may have been in the possession, custody or power” of the other party – party seeking further and better discovery need only establish the grounds for belief for the probability of the document’s existence
Legislation:		Corporations Act 2001 (Cth) Fair Trading Act 1987 (SA) Trade Marks Act 1995 (Cth) ss 52, 53 Trade Practices Act 1974 (Cth) Federal Court Rules O 15 r 1, O 15 r 2, O 15 r 3, O 15 r 6, O 15 r 8, O 15 r 10
Cases cited:		British Association of Glass Bottle Manufacturers, Ltd v Nettlefold [1912] 1 KB 369 cited Compagnie Financiere et Commerciale du Pacifique v Peruvian Guana Co (1882) 11 QBD 55 referred to F Hoffmann-La Roche AG v Chiron Corporation (2000) 171 ALR 295 referred to Jones v Monte Video Gas Co (1880) 5 QBD 556 cited Lubrizol Corporation Inc v Imperial Chemical Industries PLC [2000] FCA 1464; (2000) 50 IPR 526 cited Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 referred to Spyer v Cuddles ‘N’ Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563 cited Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492 cited
Date of hearing:	14 November 2008 and 3 February 2009
Date of last submissions:	19 May 2009 (filed by the Applicant)
	12 May 2009 (filed by the Respondent)
Place:	Adelaide (Videolink to Canberra)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	151
Counsel for the Applicants:	Mr J Wells QC and Mr I Robertson SC
Solicitor for the Applicants:	Kelly & Co.
Counsel for the Respondent:	The Respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 29 of 2006

BETWEEN:	METCASH TRADING LIMITED (ACN 000 351 569) First Applicant IGA DISTRIBUTION PTY LTD (ACN 004 391 422) Second Applicant AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) Third Applicant
AND:	PETER CHADLEY BUNN Respondent

JUDGE:	LANDER J
DATE OF ORDER:	19 JANUARY 2010
WHERE MADE:	ADELAIDE (VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:

1. The respondent bring into Court short minutes relating to the orders to be made in respect of paras 1.8, 1.11 and 1.26 of the respondent’s notice of motion filed on 14 November 2008.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 29 of 2006

BETWEEN:	METCASH TRADING LIMITED (ACN 000 351 569) First Applicant IGA DISTRIBUTION PTY LTD (ACN 004 391 422) Second Applicant AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) Third Applicant
AND:	PETER CHADLEY BUNN Respondent

JUDGE:	LANDER J
DATE:	19 JANUARY 2010
PLACE:	ADELAIDE (VIDEOLINK TO CANBERRA)

REASONS FOR JUDGMENT

1. This is an application by the respondent by way of an amended notice of motion filed on 14 November 2008 seeking an order for further and better discovery or particular discovery against the applicants.
2. The notice of motion in its original form was filed on 20 February 2007 but consideration of that notice of motion was stayed pending consideration and determination of a separate notice of motion brought by the respondent for further and better particulars.
3. The notice of motion was set for hearing on 14 November 2008, which was the date upon which the respondent filed the amended notice of motion. Although the respondent submitted that the amended notice of motion was “actually a reduction of the orders (in the original notice of motion) and a refinement”, the late filing of the notice of motion meant that the hearing had to be adjourned. The hearing of the amended notice of motion was adjourned to 3 February 2009 and the respondent was ordered to pay the applicants’ costs thrown away by reason of that adjournment. The hearing resumed on 3 February 2009. During the hearing it became apparent that the respondent, who is unrepresented in the proceeding, had misunderstood that which he was obliged to address on an application for further and better discovery or particular discovery. The respondent sought a further adjournment of the notice of motion to properly prepare his submissions. The matter was adjourned but the respondent was ordered to provide to the Court and to the applicants his written argument within four weeks, and the applicants were to reply within seven days after receiving the respondent’s argument. Thus it was that this application proceeded by way of written submissions.
4. Shortly after the respondent filed his amended notice of motion, the applicants filed a third amended statement of claim. However, the respondent’s notice of motion addresses the applicants’ second further amended statement of claim and, for consistency, so shall I.
5. Order 15 of the Federal Court Rules provides for discovery and inspection of documents. Order 15 rule 1 allows a party with leave of the Court to give another party notice of discovery requiring that other party to give discovery of documents. Where a party has been given notice of discovery, the party must give the discovery within the time specified in the notice or fixed by the Court: O 15 r 2(1). In the Federal Court the obligation to give discovery arises only when the party is served with a notice of discovery, which can only be given with the Court’s leave, or when the Court orders the party give discovery. If a party becomes obliged to give discovery, the content of that discovery will be informed either by the notice of discovery, the Court’s order or, if both are silent as to content, subrules (3), (4), (5) and (6) of O 15 r 2, which provides:

(3) 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.

(4) However, a document is not required to be disclosed if the party giving discovery reasonably believes that the document is already in the possession, custody or control of the party to whom discovery is given.

(5) 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.

(6) 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.

6. The content of the list is also informed by O 15 r 3 which empowers the Court to order that discovery should be “limited to such documents or classes of documents, or to such of the matters in question in the proceeding”: O 15 r 3(1). Importantly, the Court may make an order under O 15 r 3(1) “to prevent unnecessary discovery”: O 15 r 3(2).
7. In F Hoffmann-La Roche AG v Chiron Corporation (2000) 171 ALR 295 at 296, Burchett J said O 15 r 3 “evinces a policy of the rules that discovery should only be ordered to the extent that is necessary for the attainment of the ends of justice”. That cannot be doubted. Indeed, that is the purpose of all rules of court. “Rules and forms of procedure are not ends in themselves, but a means to an end, which is the attainment of justice”: Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492 per Griffiths CJ at 504.
8. The extent of a party’s obligation to give discovery is above all regulated by the pleadings.
9. In Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345, Menzies J said:

I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues – not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of inquiry which would, either advance a party’s own case or damage that of his adversary.

10. Justice Menzies identified two matters by which a party’s obligations to give discovery should be measured. First, a party should make discovery of documents which relate to an issue raised on the pleadings. The pleadings identify the issues between the parties. The parties must only make discovery of documents which are relevant to those identified issues.
11. Secondly, the obligation extends to any document that may lead to a train of inquiry. In relation to that matter, Menzies J applied the decision in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guana Co (1882) 11 QBD 55 by requiring discovery of a document which would lead to “a train of inquiry”.
12. The rule under consideration in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guana Co 11 QBD 55 required a party to discover “a document relating to any matter in question in the action”. Brett LJ said that those words ought to be given “as large an interpretation as I can”: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guana Co 11 QBD 55 at 62. He said:

I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; and the practice with regard to insurance cases shews, that the Court never thought that the person making the affidavit would satisfy the duty imposed upon him by merely setting out such documents, as would be evidence to support or defeat any issue in the cause.

The doctrine seems to me to go farther than that and to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may—not which must—either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences: the question upon a summons for a further affidavit is whether the party issuing it can shew, from one of the sources mentioned in Jones v. Monte Video Case Co. 5 Q.B.D. 556, that the party swearing the first affidavit has not set out all the documents falling within the definition which I have mentioned and being in his possession or control.

13. Order 15 rule 2 used the same expression to regulate discovery as used in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guana Co 11 QBD 55 until O 15 was amended in 1999 and the current rule inserted. It has been said that O 15 r 2(3) as understood in the context to which I have referred means that a party need only discover documents which are directly relevant to an issue raised on the pleadings. It is no longer necessary to discover those documents which may lead to a train of inquiry but are not directly relevant to an issue raised on the pleadings: Lubrizol Corporation Inc v Imperial Chemical Industries PLC [2000] FCA 1464; (2000) 50 IPR 526. That issue does not need to be addressed on this application because particular orders for discovery, which have been made from time to time in this proceeding, have confined the parties to making discovery to documents directly relevant to issues raised on the pleadings. The proceeding has thus far been conducted on the basis that the parties must only give discovery of documents directly relevant to an issue raised on the pleadings.
14. A party makes discovery by filing a list of documents with an affidavit verifying that list: O 15 r 2(2). The affidavit of discovery was said to be conclusive and it was not permissible to seek to introduce evidence to establish that the affidavit of discovery was insufficient: Jones v Monte Video Gas Co (1880) 5 QBD 556 at 558-559; British Association of Glass Bottle Manufacturers, Ltd v Nettlefold [1912] 1 KB 369 at 374, 376.
15. Order 15 rule 8 which is headed “Order for particular discovery” provides:

8 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.

16. If the effect of O 15 r 2 and O 15 r 3 is that the parties to a proceeding need only give discovery of documents directly relevant to a relevant issue, there is, as Lindgren J observed in Spyer v Cuddles ‘N’ Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563, a disconformity between that narrower test and the test which has been retained in O 15 r 8 which continues to refer to a document or class of document “relating to any matter in question in the proceeding”. However, it cannot be that a party can on an application under O 15 r 8 claim to be entitled to discovery from another party of a document which that party is not entitled to require discovery under O 15 r 2. It seems to me that if a party is seeking further and better discovery of a document under O 15 r 8, that party must address documents which were the subject of any order or, if no order, a document which is directly relevant to an issue raised on the pleadings.
17. The respondent does not claim to have brought this application pursuant to O 15 r 8 but it should be treated as such. Order 15 rule 8 was introduced to obviate the hardship of the rule that the affidavit of discovery was conclusive. Discovery is a process easily abused. If a party cannot go behind another party’s discovery, there is in reality no way of ensuring that parties to a proceeding have complied with their obligations. If this rule is intractable, each party is only subject to that party’s own audit of its compliance. The purpose of O 15 r 8 is to relax the effect of the rule that an affidavit of discovery is entirely conclusive.
18. Order 15 rule 8 is available to a party who contends that another party has not complied with that party’s obligations to make full discovery. A party seeking to rely on O 15 r 8 will succeed in obtaining an order from the Court for further discovery if the Court is satisfied that there are grounds for belief that some document or class of documents relating to a matter in question in the proceeding may or may not have been in the possession, custody or power of the other party and the Court, in the exercise of its discretion, is of the opinion that the order should be made.
19. The test for further and better discovery is not demanding. The moving party must establish that there is a document or class of documents which “may be or may have been in the possession, custody or power” of the other party. The moving party does not need to establish the actual existence of the document or class of documents but only grounds for belief for the probability of the document’s existence. However, that is not the end of the inquiry. If the moving party can pass that threshold test, the Court has a discretion whether the Court will make the order in paragraph (a) of rule 8.
20. Because of the importance of the pleadings on an application of this kind, it is necessary to know something about the applicants’ claim as it is articulated in the applicants’ statement of claim and the respondent’s defence.
21. The first applicant is a subsidiary of Metcash Limited which is a public company listed on the Australian Stock Exchange and is the holding company of the second and third applicants which operate as trading entities. The first and third applicants are the registered owners of trademarks.
22. The respondent was, at the relevant times, the director, secretary and shareholder of Chadmar Enterprises Pty Ltd (in liquidation) (Chadmar), which was placed under voluntary external administration on 15 March 2005 and went into liquidation on 13 July 2005. The respondent was also at the relevant times the sole director, secretary and shareholder of Kayso Pty Ltd (in liquidation) (Kayso), which went into liquidation on 29 November 2004. It is asserted and admitted that the respondent is the registrant and administrative contact for three domain names “IGA-ALM.NET”, “METCASHINFO.NET” and “MET-INFO.NET”, and the operator of the website of the first two domain names.
23. The applicants operate a grocery and liquor wholesale business throughout Australia which generates turnover in the vicinity of $4 billion. They purchase grocery items and liquor products from suppliers (suppliers) on trading terms which are confidential, and supply those grocery items and liquor products to supermarket operators and liquor retailers (customers) on trading terms that are again confidential. The first and second applicants supply groceries on a wholesale basis to more than 4,500 independent retail stores. The third applicant distributes 8,000 products to more than 13,000 licensed premises.
24. Prior to going into liquidation, Chadmar operated supermarkets in the Australian Capital Territory. Kayso operated a single supermarket, which was sold to Chadmar in about January 2002, also in the Australian Capital Territory. Between 1997 and 2004 the second and third applicants supplied goods on credit to supermarkets operated by Chadmar and Kayso. On 7 September 2004 the second applicant demanded payment by way of statutory demand from Chadmar in the sum of $1,275,425.66. That statutory demand was set aside but eventually Chadmar went into liquidation and the second and third applicants lodged Particulars of Debt in that liquidation. As already noted, Kayso went into liquidation earlier.
25. The respondent established the first two websites referred to earlier on 4 and 5 February 2006, and the third on 30 June 2006.
26. On 3 February 2006 the respondent took out advertisements in the “Daily Telegraph” and “The Age”. It is asserted, but denied, that the advertisements were taken out to solicit confidential information concerning the trading terms between the applicants and their suppliers, and the applicants and their customers for the purpose of publishing that material on the respondent’s websites.
27. It is alleged that between 20 September 2005 and 10 May 2006 the respondent sent to the first applicant 17 separate documents which are annexed to the applicants’ statement of claim, which it is alleged were also published by the respondent to persons other than the applicants. It is asserted that the documents were published to other persons in different ways, including through websites owned by the respondent.
28. On 20 and 21 February 2006 the respondent published other material relating to the applicants on the websites. The publications are annexed to the statement of claim. The applicants allege that various publications were sent by the respondent to the applicants. The respondent admits that he sent some of those documents to the applicants. The documents referred to were published by the respondent by means of postal, telegraphic or electronic means to persons other than the applicants: para 30.
29. On 15 February 2006 the respondent sent an email to the applicants’ solicitors stating that he had received contracts from many retailers, suppliers and former employees of Metcash which he intended to publish on the websites. It is asserted that the contracts included documents embodying the trading terms between the applicants and their suppliers and customers which, it is claimed, are confidential: para 32. It is alleged that the respondent was aware that the contracts included confidentiality obligations that prohibited the disclosure of the contents without the prior written consent of the applicants.
30. On 20 February 2006 the respondent published statements on his website soliciting suppliers and customers of the applicants to provide the respondent with copies of documents for publishing on the website, which documents included confidential information. The respondent denies the knowledge attributed to him in the plea.
31. The applicants plead, but the respondent does not admit, that unless the respondent is restrained the respondent will publish the contracts on his websites: para 35 and para 37.
32. The applicants next rely upon the Trade Marks Act 1995 (Cth) (Trade Marks Act). It is asserted in the statement of claim that the respondent has infringed the applicants’ trademarks by using marks on his website that are substantially identical with, or deceptively similar to, the applicants’ marks: para 38. The allegation is denied: para 38 of the defence.
33. The applicants complain that the various publications are defamatory of the applicants and are actionable. The applicants address the transitional provisions of the various Defamation Acts of the States and the Territories which were enacted in 2005. The respondent takes issue with the applicants’ plea in that regard. Those issues raise a question of the construction of the various statutes.
34. However, the applicants plead that the various publications earlier identified referred to and were understood to refer to the applicants: para 45. The applicants rely upon the natural and ordinary meaning of the words and an innuendo (which is particularised in para 46.1(b)) for contending that the words published by the respondent meant and were understood to mean:

46.1.1 the applicants breached their contractual obligation to supply goods to Chadmar at the prices set out in the agreements between the applicants and Chadmar;

46.1.2 by reason of the breach referred to in subparagraph 46.1.1, the respondent is currently pursuing proceedings against the applicants for the payment of the monies owing by the applicants to the respondent;

46.1.3 by reason of the breach referred to in paragraph 46.1.1, Chadmar is currently pursuing proceedings against the applicants for the payment of the monies owing by the applicants to Chadmar;

46.1.4 the applicants actively and deliberately operated in a manner calculated to destroy Chadmar, in that they:

46.1.4.1 improperly altered its trading terms with Chadmar for the purpose of punishing the respondent for expressing complaints to Metcash;

46.1.4.2 improperly used the legal system to apply financial pressure to Chadmar;

46.1.4.3 employed standover tactics with Chadmar’s suppliers to force the suppliers to change their trading terms with Chadmar;

46.1.4.4 improperly applied pressure to Chadmar’s creditors to force them to vote against a proposed Deed of Company Arrangement for Chadmar;

46.1.5 the applicants had and have a policy and strategy calculated to prejudice, damage or destroy the business of independent retailers;

46.1.6 the applicants have deliberately and improperly concealed the existence of substantial actions commenced by suppliers and customers and thereby caused Metcash Limited to breach its legal obligations to disclose such actions to its investors;

...

46.2.1 meant and were understood to mean that contrary to the public commitment by Metcash/ALM to the liquor industry, Metcash and/or ALM is intending to withdraw from the liquor industry;

46.2.2 in breach of disclosure and notification obligations, Metcash and/or ALM has concealed its plans to withdraw from the liquor industry;

46.2.3 Metcash and/or ALM is not committed to fulfilling its commercial obligations to suppliers, independent retailers and independent banner groups in the liquor industry,

...

35. The imputations pleaded are said to be defamatory of the applicants. The applicants claim that they have been injured in their trading reputations. They seek an injunction to restrain any further defamatory publications. The applicants claim aggravated damages and exemplary damages (except for the publications in New South Wales) in respect of the cause of action in defamation.
36. The applicants also claim that the publications amount to an injurious falsehood in that the imputations conveyed by the publications are false and were made maliciously, and with the deliberate intent of causing loss and damage to the applicants: para 52.3. They claim they have suffered actual damage which is particularised: para 53.
37. The applicants have also included a claim under the Trade Practices Act 1974 (Cth) (Trade Practices Act) relying, in particular, on s 52 and s 53 of that Act claiming that the same publications which give rise to the other causes of action are also contraventions of the Trade Practices Act. Lastly, the applicants rely upon the corresponding provisions of the Fair Trading Act 1987 (SA) (Fair Trading Act).
38. The applicants seek compensatory damages, aggravated damages and exemplary damages. They also seek a permanent injunction to restrain the respondent from publishing false, misleading, deceptive or defamatory statements concerning the applicants.
39. The respondent has put all of the claims in issue.
40. On 11 May 2006 I made orders that:
    5. The parties nominate categories of documents to be discovered on or before 21 July 2006.
       
    6. The parties file and serve their List of Documents in relation to the documents within the nominated categories which are not in dispute on or before 4 August 2006.
       
41. On 4 August 2006 the applicants filed a list of documents (the first list) in accordance with orders made on 11 May 2006 and, on 31 August 2006, the applicants filed a supplementary list of documents (the second list). The amended notice of motion refers to both lists of documents. It is the respondent’s contention that the lists of documents do not provide sufficient discovery.
42. On 27 October 2006 I made an order that:

On the respondent’s notice of motion filed on 6 October 2006 the applicants make discovery of all documents directly relevant to any issue raised on the pleadings in accordance with their obligations under Order 15 rule 6.

43. As a result of the respondent’s continuing dissatisfaction with the applicants’ discovery on 7 February 2007, I made an order:
    5. The respondent identify the documents which he asserts should be the subject of further and better discovery by the applicant (sic) within 14 days.
       
    6. The respondent identify all of the letters to which he referred upon which he relies in relation to his application for further and better discovery by the applicants within 14 days.
       
44. On 15 February 2007 the respondent filed an affidavit in response to Order 6 mentioned above.

The amended notice of motion

45. The respondent seeks the following orders by way of further and better discovery:

1. The [a]pplicants make the following discovery and/or inspection:

1.1 The applicants provide, to the respondent all executed documents, (in original form) that the applicants have required each customer (which has been identified and listed by the respondent in his affidavit) to execute as a condition of supply between the applicants and the identified, and listed customers within 56 days of this order.

1.2 The applicants provide inspection, to the respondent, all executed documents, (in original form) and all other associated, or, interlocking documents that record the arrangements and terms of supply between the applicants and each of the applicants suppliers (which has been identified and listed by the respondent in his affidavit) on or before 9 January 2009.

1.3 All documents, (in original form, not copies), which evidence the authority of the [a]pplicant, Metcash, to enforce and protect the interests of IGA Inc. in respect to the use of the IGA marks in Australia, and/or in respect of this action in the Federal Court of Australia against the respondent, to be discovered, and made available for inspection by the respondent within 14 days of this order.

1.4 [deleted]

1.5 Within 14 days of this order, the applicants file an affidavit, annexing a list of all customers that the applicants have supplied goods, and/or services to, from, or continuing from, or since, 1 March 1997, including no less than: name (company or individual), director(s) names (if applicable), and site address, and by a separate list, a list of all suppliers, from, or since, 1 March 1997, including no less than company, and/or trading name and address.

1.6 [deleted]

1.7 All documents, in the applicants (sic) custody and/or control relating to the Supreme Court of the A.C.T. proceedings No. 971 of 2005, in the matter of Chadmar Enterprises Pty Limited (in liquidation) and William Balfour Rangott V Ewens and 19 others, to be discovered, and made available for inspection by the respondent within 21 days of this order.

1.8 All records in any form of discussions, meetings, and written communications, that occurred between the [a]pplicants, or any one of them, and Chadmar Enterprises from 1 January 1997 to be discovered, and made available for inspection by the respondent within 28 days of this order.

1.9 All records in any form of discussions, meeting, and written communications that occurred between the [a]pplicants or any one of them, and Kayso Pty Ltd from 1 January 1997, to be discovered, and made available for inspection by the respondent within 28 days of this order.

1.10 All records in any form of discussions, meetings, and written communications that occurred between the [a]pplicants or any one of them, and Retail Logistics Pty Ltd from 1 January 1997 to be discovered, and made available for inspection by the respondent within 28 days of this order.

1.11 All records in any form of discussions, meetings, and written communications that occurred between the [a]pplicants, or any one of them, and Peter Chadley Bunn from 1 January 1997, to be discovered, and made available for inspection by the respondent within 28 days of this order.

1.12 Copies of all rebate payments, including any calculations, made by the [a]pplicants to Chadmar Enterprises Ltd, since 1 March 1997, to be discovered, and made available for inspection by the respondent within 56 days of this order.

1.13 Copies of all rebate payments, including any calculations, made by the [a]pplicants to Kayso Pty Ltd, since 1 March 1997, to be discovered, and made available for inspection by the respondent within 56 days of this order.

1.14 Copies of all communications in any form between the [a]pplicants and all direct suppliers (as to be detailed by the [r]espondent) of Chadmar Enterprises Pty Ltd, in respect to Chadmar Enterprises Pty Ltd since 1 March 1997, to be discovered and made available for inspection by the respondent within 35 days of this order.

1.15 Copies of all communications in any form between the [a]pplicants and the direct suppliers (as to be detailed by the [r]espondent) of Kayso Pty Ltd, in respect to Kayso Pty Ltd that occurred since 1 March 1997, to be discovered and made available for inspection by the respondent within 35 days of this order.

1.16 [deleted]

1.17 [deleted]

1.18 [deleted]

1.19 [deleted]

1.20 Copies of all communications and records, in any form, between the [a]pplicnats, and their agents, and either the receivers, and/or liquidators, of Chadmar Enterprises Pty Ltd, in respect to Chadmar Enterprises Pty Ltd, and/or the respondent, that occurred between 15 March 2005 and 13 July 2005, to be discovered and made available for inspection by the respondent within 28 days of this order.

1.21 [deleted]

1.22 [deleted]

1.23 [deleted]

1.24 [deleted]

1.25 [deleted]

1.26 Copies of all communications and records, in any form, between the [a]pplicants, and their agents, and any, or all, creditors (as to be detailed by the respondent) of Chadmar Enterprises Pty Ltd, in respect to Chadmar Enterprises Pty Ltd, and the respondent, 15 March 2005 and 13 July 2005, to be discovered and made available for inspection by the respondent within 35 days of this order.

1.27 Copies of all communications and records, in any form, between the [a]pplicants, their agents, and any member of the Nine Network Australia Pty Ltd or their representatives in regard to the [r]espondent, since 1 August 2005, to be discovered and made available for inspection by the respondent within 21 days of this order.

1.28 [deleted]

1.29 [deleted]

1.30 [deleted]

1.31 [deleted]

1.32 All records, in any form, relating to the alleged phone call received by the personal assistant of Mr. Andrew Reitzer from a Mr. Jeff Penfold, and the subsequent phone call made by Mr Reitzer to the phone number ..., including the working records of the investigation conducted as recorded in the ‘Complaint Report’ annexed to the affidavit of Mr. Andrew Reitzer dated 24 February 2006 at ‘AR-1’, to be discovered and made available for inspection by the respondent within 14 days of this order.

1.33 The respondent file an affidavit annexing a list of no more than 750 customers of the applicants, from the list of customers as lodged by the applicants in their affidavit, as by order of this Court, and annexing another list of no more than 500 suppliers to the applicants, from the list of suppliers, as lodged by the applicants in their affidavit, as by order of this Court, within 21 days of this order.

1.34 The respondent, as required in paragraphs 1.14 and 1.15, provide a list of the direct suppliers of Chadmar Enterprises Pty Ltd, and a list of the direct suppliers of Kayso Pty Ltd by annexure to an affidavit, to be lodged within 7 days of this order.

1.35 The respondent, as required in paragraphs 1.20 and 1.21, identify the receiver(s), and/or liquidator(s) of Chadmar Enterprises Pty Ltd, and identify the receiver(s), and/or liquidator(s) of Kayso Pty Ltd by affidavit, to be lodged within 7 days of this order.

1.36 The respondent, as required in paragraph 1.26, provide a list of Chadmar Enterprises Pty Ltd, and a list of creditors of Kayso Pty Ltd by annexure to an affidavit, to be lodged within 7 days of this order.

2. [deleted]

2.1 [deleted]

2.2 [deleted]

2.3 [deleted]

3. That the respondent be provided an office that is available to him, from 28 November 2008, in which to take inspection of the applicants (sic) discovered documents without interference, and that he be permitted to take copies of any of the [a]pplicants (sic) discovered documents under the undertakings of confidentiality that he has already given to this Court, by the use of photocopying facilities provided by the applicants at the current ‘3001+black and white A4 photocopy rate’ cost as charged by the business operating as Officeworks from 28 November 2008.
   

4. [deleted]

4.1 [deleted]

4.2 [deleted]

5. Such further or other Orders as the Honourable Court deems fit.

46. The respondent does not press paras 1.5, 1.33, 1.34, 1.35, 1.36, and 3 of his amended notice of motion. Therefore those paragraphs of the amended notice of motion need not be further addressed.
47. In support of the application the respondent relies on affidavits sworn by him on 15 February 2007, 19 February 2007, 27 October 2008, 5 November 2008 and 20 January 2009. In those affidavits Mr Bunn exhibited correspondence between himself and the applicants’ solicitors which Mr Bunn asserts indicates an unwillingness on the part of the applicants to comply with their discovery obligations. He also exhibited evidence given at a public hearing conducted by the Australian Competition and Consumer Commission (ACCC) into the competitiveness of retail prices for standard groceries. In his affidavit sworn on 5 November 2008 Mr Bunn exhibited a public announcement made by the liquidator of Chadmar who said that he had been told by Mr Bunn that Chadmar had various claims available to it against the applicants. The liquidator announced that he had investigated those claims and met with the applicants, but formed the view that there was no merit in pursuing any claims as alleged by Mr Bunn against the applicants, and that it was not in the interests of creditors of Chadmar for there to be any further investigation into the allegations.
48. In his affidavit sworn on 20 January 2009, the respondent exhibited an affidavit sworn on 28 February 2006 by Edwin Michael Jankelowitz, who is a director of Metcash Limited, the holding company of the applicants and the applicants. The affidavit was apparently sworn for the purpose of seeking an order that any examinations on the examination summonses which had been issued out of the Supreme Court of the Australian Capital Territory be held in private and that Mr Bunn be excluded. In that affidavit Mr Jankelowitz explains the applicants’ businesses. He says that in the course of those businesses the applicants entered into confidential agreements with suppliers and customers. He deposes to the term of confidentiality. He says the confidentiality of the terms of its agreements with suppliers is “crucial to its ability to secure competitive pricing in a highly competitive industry”.
49. The applicants rely on an affidavit sworn on 30 April 2007 by Mr Hunter, General Counsel to the applicants’ holding company, Metcash Limited, in opposition to the original notice of motion. Mr Hunter said that his affidavit was intended to address the practical difficulties of making discovery in the terms sought by the respondent in his application. He said that, on his understanding of the applicants’ business operations, if orders for discovery were made as sought by the respondent, the applicants would need to assess and discover an enormous number of documents which would involve the applicants in substantial difficulty in identifying, locating, retrieving and producing those documents and the expenditure of significant time, resources and costs. He does not descend into any detail. Mr Hunter addresses each of the separate orders sought in the original notice of motion filed on 20 February 2007. Mr Hunter also addressed the matters raised by the respondent in his various affidavits.
50. The respondent has provided his written submissions in accordance with the directions made and he has also provided a document which identifies the discovery sought, and the particular paragraphs of the statement of claim and defence which identifies the issue. I will address each of the claims for particular discovery in accordance with the paragraphs of the notice of motion which are pressed.
51. The applicants filed three separate written submissions; on 23 October 2008, 27 January 2009 and 19 May 2009. In the first submission the applicants addressed the “rules and principles” relating to applications of this kind and, in doing so, particularly addressed the question of oppression. In that submission they addressed paras 1.1 and 1.2 of the respondent’s notice of motion. In the second submission the applicants addressed each of the orders sought by the respondent by reference to the application. In the third submission the applicants responded to the respondent’s submissions.

Paragraph 1.1

52. In para 7 of the statement of claim the applicants allege that in the course of their businesses they supply grocery, stock and liquor products to their customers on trading terms that are confidential.
53. The applicants have provided “Particulars of confidentiality”:

7.1 the trading terms were and are treated by the applicants as being commercially sensitive and proprietary information of the applicants;

7.2 the trading terms are prohibited from disclosure to any third party by virtue of a pro forma written agreement with each customer;

7.3 the written agreement comprises specific clauses of pro forma agreements titled ‘Application for Credit’, ‘IGA Alliance Agreement’ and ‘Supply Agreement’;

7.4 particulars of the specific clauses referred to herein have been provided to the respondent.

54. In my opinion, para 7 does not require the applicants to discover, as the respondent claims, each of the agreements which the applicants have entered into with each of its customers relating to the supply by the applicants to the customers of grocery, stock and liquor products. The allegation in para 7 is that the applicants supply grocery, stock and liquor products on trading terms that are confidential. The particular confidential agreements are those identified in para 7.3 of the statement of claim.
55. Even if I thought all of the documents to be discoverable (which I do not), I would not make the order sought in the terms sought in the exercise of the discretion given to me by O 15 r 8. The order would be too onerous and involve the applicants in costs that they would be unlikely to be able to recoup whatever the result of the proceeding.
56. I am not sure of the relevance of the plea in para 7.4. Whether the respondent has been provided with specific clauses in particular documents is not to the point. The applicants must discover the pro forma documents and make them available for inspection.
57. The applicants have discovered in the first list three documents, numbers 66, 67 and 68 which are identified as:

66. Copy pro forma Metcash Trading Limited Supply Agreement

67. Copy pro forma Metcash Trading Limited Application for Credit

68. Copy pro forma IGA Alliance Agreement

58. The plea in para 7 of the statement of claim is that the applicants “or one or more of them” (whatever that means) supply grocery stock and liquor products to their customers on trading terms that are confidential.
59. The description of the documents numbered 66, 67 and 68 suggests that there is no document discovered which evidences the supply by the third applicant to its customers which includes terms that are confidential. That might explain the obscure plea “one or more of them”. Because only three pro forma documents have been discovered, it must be assumed that the pro forma documents have not changed over the relevant period. It also must be assumed that there is no document relevant to the particular that the trading terms bind “each customer”: particular 7.2.
60. I am not prepared to assume that there are any further pro forma documents not already discovered which evidence the matters contained in the Particulars.
61. The applicants apparently intend to establish the matters contained in para 7 by reference only to the three documents already discovered.
62. The respondent also relied upon the applicants’ pleas in paras 32, 32.1, 32.2, 33, 36, 36.1 and 36.2 for this claim for particular discovery.
63. In para 31 of the statement of claim the applicants assert that on 15 February 2006 the respondent sent the applicants an email “in which he stated that he had received contracts from many retailers, suppliers and former employees of Metcash, which contracts he intended to publish on his websites ...”. The respondent admits publication of an email but denies that he made the pleaded threat.
64. In para 32 the applicants plead:

32. The contracts referred to by the respondent:

32.1 include documents embodying the trading terms between the applicants and their suppliers and customers;

32.2 are confidential by reason of the matters referred to in paragraphs 6 and 7 herein.

65. The applicants purport to identify particular contracts which were referred to by the respondent as including documents embodying trading terms between the applicants and the suppliers and customers. It is not entirely clear from the plea whether the applicants claim to know the particular documents in the hands of the respondent on 15 February 2006. If the applicants are aware of the particular documents referred to in paras 31 and 32, those documents, if para 31 is made out, would now be in the possession of the respondent not the applicants. However, if they were at any time in the possession of the applicants, they should be discovered by the applicants and the applicants would need to state when they parted with the documents and what became of them: O 15 r 6(6).
66. The applicants’ plea in para 33 does not by itself give rise to any obligation on the applicants to discover any documents not otherwise discoverable by reason of the plea in para 32.
67. In para 36 the applicants plead:
    36. On or around 20 February 2006, notwithstanding the respondent’s knowledge as set out in paragraph 33 herein, the respondent published statements on the website www.metcashinfo.net soliciting customers and suppliers of the applicants to provide the respondent with copies of documents for publishing on the website, which documents:
        

36.1 include documents embodying the trading terms between the applicants and their suppliers and customers; and

36.2 by virtue of the matters pleaded in paragraphs 6 and 7 herein have been contractually agreed between the applicants and their suppliers and customers to be prohibited from publication to third parties.

68. Paragraphs 36.1 and 36.2 identify a class of documents which the preamble in para 36 addresses. The plea in para 36 does not require any further discovery on the part of the applicants. The plea is that the respondent solicited a class of documents. The plea does not assert that the applicants are aware of any documents solicited by the respondent. The pleas do not require any further discovery by the applicants.

Paragraph 1.2

69. This claim for discovery raises the same issues as are raised by the claim in para 1.1 of the notice of motion. Paragraph 6 of the statement of claim asserts that the applicants purchase grocery items and liquor products from suppliers on terms that are confidential. The statement of claim gives “Particulars of confidentiality”:

6.1 the trading terms were and are treated by the applicants as being commercially sensitive and proprietary information of the applicants;

6.2 the trading terms are prohibited from disclosure to any third party by virtue of a pro forma written agreement with each supplier;

6.3 the written confidentiality agreement comprises specific clauses of a pro forma agreement titled Terms of Agreement;

6.4 particulars of the specific clauses relied upon have been provided to the respondent.

70. Paragraph 6 contains the same obscure plea “one or more of them”. There is apparently only one relevant pro forma agreement: paras 6.2 and 6.3. The applicants should, if they have not already, discover the pro forma document referred to in para 6.2 which is I assume the same written confidentiality agreement referred to in para 6.3 and any other pro forma documents which, over the relevant period, comprise the trading terms with their suppliers.
71. For the reasons given in relation to para 1.1, I do not think the pleas in paras 32, 33 and 36 require the applicants to make further discovery.

Paragraph 1.3

72. In para 1.7 of the statement of claim it is asserted that the first applicant is entitled to enforce various trademarks on behalf of the registered owner of the IGA marks. In para 1.7.3, which particularises para 1.7, it is asserted that:

Metcash is expressly authorised by IGA Inc to enforce and protect the interests of IGA Inc in respect of the use of the IGA marks in Australia.

73. Metcash is the first applicant.
74. The respondent asserts that the applicants have discovered only two documents relating to authority provided by IGA Inc to Metcash to enforce and protect the interests of IGA Inc in respect of the use of the IGA marks in Australia, being documents numbered 64 and 94 on the first list. The first is a “Copy IGA Licence Agreement between IGA Inc and Metcash Trading Limited” and the second is a “Copy of email R Grottke, IGA to J Hunter, Metcash”.
75. The respondent asserts that those documents do not establish that the first applicant has authority to enforce and protect the interests of IGA Inc in Australia.
76. The applicants, on the other hand, say that they have discovered all of the documents directly relevant to the issue whether the first applicant has the authority to enforce and protect the interests of IGA Inc in respect of the use of IGA marks in Australia.
77. I am not satisfied that other documents exist which are directly relevant to that issue. The respondent will be entitled at trial to argue that the documents do not evidence the authority which is pleaded, but that will be a matter for evidence. The question will be whether those two documents do provide Metcash with the requisite authority to bring a claim under the Trade Marks Act.

Paragraph 1.4

78. Deleted.

Paragraph 1.5

79. Not pressed.

Paragraph 1.6

80. Deleted.

Paragraph 1.7

81. The respondent claims that the applicants’ pleas in paras 46.1.3 and 52.1.3 of the statement of claim, and his pleas in paras 46 and 52.1.3 of his defence, raise issues which require the applicants to discover in this proceeding the documents in proceeding No. 971 of 2005 in the Supreme Court of the Australian Capital Territory between Chadmar Enterprises Pty Ltd (in liquidation) and William Balfour Rangott v Ewens & Ors.
82. In para 46.1.3 the applicants plead that an imputation arises, either in the natural and ordinary meaning of the words or by way of innuendo, that because of a breach by the applicants of their contractual obligations to supply goods to Chadmar at the prices set out in the agreements between the applicants and Chadmar, Chadmar is currently pursuing proceedings against the applicants for the payment of monies owed by the applicants to Chadmar.
83. In para 52.1.3 of the statement of claim the applicants plead that Chadmar is not currently pursuing proceedings against the applicants for the payment of monies.
84. In para 52.1.3 of the defence the respondent denies the applicants’ assertion in para 52.1.3 of the statement of claim and says that Chadmar has on foot proceedings against the third applicant in the Supreme Court of the Australian Capital Territory.
85. There is a dispute as to the nature of the proceedings which have been brought in the Supreme Court of the Australian Capital Territory. It is apparently agreed that the proceedings have been brought by the liquidator of Chadmar, Mr William Rangott. However, the applicants claim that those proceedings are not for payment of monies, but have been brought by the liquidator for the issue of examination summonses under the Corporations Act 2001 (Cth).
86. The applicants also contend that they have made discovery of the appropriate documents, being items numbered 64 to 78 in the second list.
87. I am not satisfied first, that the action in the Supreme Court is one for payment of monies and therefore relevant to an issue raised on the pleadings. Nor am I satisfied, even if the documents in the action were relevant to an issue raised on the pleadings, that there are any further documents in the applicants’ possession, custody or control which ought to be discovered. The action in the Supreme Court has been brought by Chadmar’s liquidator. The respondent can obtain whatever documents he says are relevant from the liquidator or from the Supreme Court of the Australian Capital Territory.

Paragraph 1.8

88. In para 52 of the statement of claim the applicants plead their case in injurious falsehood. In para 52.1.1 they claim that contrary to the imputations which are pleaded in para 46 the applicants did not breach their contractual obligations to supply goods to Chadmar at the prices set out in the agreement between the applicants and Chadmar. In para 52.1.4 they plead that the applicants did not improperly alter their trading terms with Chadmar for the purposes of punishing the respondent for expressing complaints to Metcash.
89. As to the first plea, the respondent pleads that the applicants did breach their contractual obligations and, as to the second plea, the respondent denies the allegation.
90. The respondent contends that the applicants have discovered no documents in respect to the category of documents identified in para 1.8. He puts his submission:

The purpose of this order being sought is for the applicants to provide all records in any form, of discussions, meetings and written communications, that occurred between the [a]pplicants, or any one of them and Chadmar Enterprises Pty Ltd from 1 January 1997 (being the commencement of negotiations of the Chadmar Enterprises Pty Ltd negotiations and dealings) as to not only the initial supply agreement negotiations between Chadmar Enterprises Pty Ltd, and the applicants, but also on the on going (sic) commercial dealings between the parties as to the applicants (sic) conduct and performance due under the said supply agreement so as to evidence the applicants (sic) claims made at 52.1.1 and 52.1.4 in their [Second Amended Statement of Claim].

91. In his affidavit of 30 April 2007 Mr Hunter said that the respondent’s request is in extremely broad terms and would involve the applicants, if an order were made, to give all of the applicants’ documents and records which might conceivably contain dealings or references to dealings with Chadmar. He said that the applicants would need to review their hard copy and electronic files in three separate departments; legal, credit and accounts and files held by the Chief Executive Officers of each of the applicants and various managers of the second and third applicants.
92. The imputations which are pleaded in para 46 are not only relied upon in para 47 for the plea in defamation, but they are specifically relied upon for the applicants’ claim in injurious falsehood. They are also relied upon for the claims under the Trade Practices Act and the Fair Trading Act. If the applicants are to succeed in that tort, the applicants will need to prove that the imputations which are relied upon are false and that they are made of and concerning the applicants, and were calculated to induce others to refrain from dealing with the applicants. Injurious falsehood differs from defamation in that the falsity of the statement or imputation is not presumed but must be established. Moreover, the applicants must prove that the falsehood was published with malice in that the respondent intended to injure the applicants. Lastly, the applicants will need to establish that they have suffered actual damage as a result of the respondent’s conduct. If they are to succeed in the statutory claims, they must also prove the falsity of the representations.
93. It seems to me therefore the applicants have taken upon themselves to establish that they did not breach their contractual obligations to supply goods to Chadmar at the prices set out in the agreement between the applicants and Chadmar, and they did not improperly alter their trading terms for Chadmar for the purposes of punishing Chadmar for expressing complaints to Metcash.
94. Mr Hunter’s claim that the applicants would be put to considerable cost and expense cannot be upheld when it is the applicants which positively assert that the imputations are false. The applicants must give discovery of all documents directly relevant to the pleas in paras 52.1.1 and 52.1.4.
95. The issue having been raised and joined, the respondent is in my opinion entitled to those documents directly relevant to that issue. Those documents will include documents relating to the contractual arrangements between the applicants and Chadmar, and documents which evidence the prices in those agreements. The applicants should discover any alteration to the trading terms with Chadmar and any memoranda, including internal memoranda, relating to those alterations. The applicants should discover, if they are to comply with their obligations of discovery, any documents which relate to the reasons for the alteration in the trading terms with Chadmar.
96. The respondent has sought records relating to any discussions, meetings and written communications that occurred between the applicants and Chadmar from 1 January 1997. That claim is expressed too widely. The respondent would be entitled to any records relating to any discussions or meetings between the applicants and Chadmar relating to the contractual obligations between the applicants and Chadmar to supply goods to Chadmar at the prices set out in the agreement between the applicants and Chadmar, and records of any discussions and meetings relating to the alteration of the trading terms with Chadmar during that period. The respondent would also be entitled to any communications between the applicants and Chadmar relating to the issues raised in paras 52.1.1 and 52.1.4.
97. I reject Mr Hunter’s claim that making discovery of these documents would be onerous. The applicants positively assert that the respondent’s claims are false and have taken upon themselves to prove the falsity of those claims. They should discover any documents which are directly relevant to the issues which they have raised.
98. I will hear the parties as to the precise order which should be made on this claim.

Paragraph 1.9

99. By this application the respondent seeks any document relating to the issues which are raised in paras 52.1.1 and 52.1.4, but relating to Kayso. That application must be rejected. It is not claimed in paras 52.1.1 or 52.1.4 by the applicants that the respondent has falsely claimed that the applicants breached their contractual obligations to supply goods to Kayso at the prices set out in the agreement between the applicants and Kayso, or that the applicants improperly altered their trading terms with Kayso for the purpose of punishing the respondent for expressing complaints to Metcash. In the absence of any claim by the applicants as to the falsity of such a statement, the documents sought are not discoverable.

Paragraph 1.10

100. The documents in para 1.10 are not discoverable for the same reasons as given in respect to para 1.9.

Paragraph 1.11

101. The documents sought in para 1.11 would be discoverable by the applicants if they directly relate to the issues raised by the applicants in the statement of claim in paras 52.1.1 and 52.1.4.
102. Therefore, the applicants should discover records of any discussions, meetings and any written communications between the applicants and the respondent relating to the issues as to whether the applicants breached their contractual obligations to supply goods to Chadmar at the prices set out in the agreement between the applicants and Chadmar, and whether the applicants improperly altered their trading terms with Chadmar for the purposes of punishing the respondent for expressing complaints to Metcash.

Paragraph 1.12

103. In this paragraph the respondent seeks copies of all rebate payments made by the applicants to Chadmar since 1 March 1997. Those documents are said to be relevant to the pleas in paras 52.1.1 and 52.1.4, and the corresponding pleas in the defence. Paragraph 52 relates to the plea of injurious falsehood. It is pleaded in para 52 that the imputations pleaded in para 46.1 were false in that:

52.1.1 the applicants did not breach their contractual obligation to supply goods to Chadmar at the prices set out in the agreement between the applicants and Chadmar;

...

52.1.4 the applicants did not improperly alter their trading terms with Chadmar for the purposes of punishing the respondent for expressing complaints to Metcash;

104. The respondent says that para 6 of the Supply Agreement between Chadmar/Kayso and the applicants dated 21 March 1997 stated:

Rebate 1% will be paid monthly on stores net purchases (excluding Gen Merch, Tobacco and Cigs, sales tax, service fees, freight, generics, store use items and charge throughs).

105. The positive assertion in the statement of claim is that the applicants did not breach their contractual obligations to supply goods to Chadmar at the prices set out in the agreement between the applicants and Chadmar, and that the applicants did not improperly alter their trading terms with Chadmar for the purposes identified in para 52.1.4. There is no positive assertion in the statement of claim or in the defence that the applicants failed to provide the respondent with a rebate of 1% on the monthly on stores net purchases in accordance with the applicants’ contractual obligations in the Supply Agreement dated 21 March 1997.
106. In those circumstances, as the pleadings presently stand, I cannot see the relevance of those documents.

Paragraph 1.13

107. For the reasons given in relation to para 1.12 and for the further reason that there is no assertion in para 52 of the applicants’ statement of claim that it did not breach its contractual obligations with Kayso, that claim for discovery must be dismissed.

Paragraph 1.14

108. The issues which these documents are said to relate to are identified as being paras 52.1.1, 52.1.6 and 52.1.7 of the statement of claim and the corresponding pleas in the defence.
109. I have already identified para 52.1.1. Paragraphs 52.1.6 and 52.1.7 are contained in that part of the plea relating to injurious falsehood and it is pleaded that the respondent’s publications were false in that:

52.1.6 the applicants did not employ standover tactics with Chadmar’s suppliers to force those suppliers to change their trading terms with Chadmar;

52.1.7 the applicants did not improperly apply pressure to Chadmar’s creditors to force them to vote against the proposed Deed of Company Arrangement for Chadmar.

110. The respondent has denied those allegations in the defence.
111. This claim for particular discovery cannot be sustained. It is clearly too wide on any understanding of the issues which are raised in paras 52.1.1, 52.1.6 and 52.1.7 in that it seeks all communications between the applicants and all direct suppliers of Chadmar after 1 March 1997. There must have been numerous communications between the applicants’ and Chadmar’s direct suppliers which could not in any way relate to the allegations in paras 52.1.6 and 52.1.7.
112. This part of the application must be dismissed.
113. The applicants should have discovered any documents directly relevant to the issues raised in paras 52.1.6 and 52.1.7, if there be any, and I assume they have.

Paragraph 1.15

114. This part of the application must be dismissed for the reasons given in para 1.14 and for the further reason that there is no plea in para 52.1.6 of the statement of claim relating to Kayso.

Paragraph 1.16

115. Deleted.

Paragraph 1.17

116. Deleted.

Paragraph 1.18

117. Deleted.

Paragraph 1.19

118. Deleted.

Paragraph 1.20

119. This claim for particular discovery is said to rely upon the plea in para 52.1.7 which is identified above. The claim is for communications and records in any form between the applicants and the receivers and/or liquidators of Chadmar during the period between 15 March 2005 and 13 July 2005.
120. It is not clear to me how the communications between the applicants and Chadmar during the particular period identified would impact upon the claim by the applicants that it did not improperly apply pressure to Chadmar’s creditors to force them to vote against the proposed deed of company arrangement with Chadmar. The receivers and liquidators of Chadmar are independent of the creditors and, in those circumstances, the claim cannot be sustained.

Paragraph 1.21

121. Deleted.

Paragraph 1.22

122. Deleted.

Paragraph 1.23

123. Deleted.

Paragraph 1.24

124. Deleted.

Paragraph 1.25

125. Deleted.

Paragraph 1.26

126. This claim also relates to the allegation in para 52.1.7 and seems to me to be more relevant to that plea than the previous claim. The plea in para 52.1.7 is that the applicants did not improperly apply pressure to Chadmar’s creditors to force them to vote against the proposed deed of company arrangement with Chadmar. The respondent seeks copies of all communications and records between the applicants, their agents and the creditors of Chadmar between 15 March 2005 and 13 July 2005.
127. It seems to me that any communications which would impact upon the plea in para 52.1.7 would be discoverable. In those circumstances, the applicants must make discovery of any documents which would evidence any communications between the applicants, their agents and the creditors of Chadmar between 15 March 2005 and 13 July 2005 which are directly relevant to the issue raised in para 52.1.7. I will hear the parties as to the precise order to be made.

Paragraph 1.27

128. This claim is said to be in relation to the plea in para 46.1.5.
129. The applicants have pleaded in para 46.1.5 that an imputation which arises out of the publications pleaded in paras 20, 22, 23 and 25 to 28 is that “the applicants had and have a policy and strategy calculated to prejudice, damage or destroy the business of independent retailers”.
130. The documents sought are communications with the Nine Network Australia Pty Ltd. In his submissions the respondent says that this aspect of his application is based upon a statement made by Mr Peter Campbell in para 13 of his affidavit sworn on 23 February 2006 in which he states that:

Metcash became aware in November 2005 that the respondent had approached Nine Network Australia Pty Ltd (“Nine”) seeking the publication of certain allegations and confidential information regarding Metcash, IGA and Metcash Limited on the Business Sunday program broadcast by Nine.

131. The contents of the affidavit, so the respondent says, also refer to a letter written by Mr Campbell to the respondent on 16 December 2005 relating to the respondent approaching the Business Sunday program and advising, “far from being a ‘champion’ of independent retailers, Metcash should be known as the ‘destroyer’ of independent retailers”.
132. In my opinion, any communications between Metcash and Nine Network Australia Pty Ltd are not relevant to the plea raised by the applicants in para 46.1.5.
133. I will assume that the respondent approached the Nine Network Australia Pty Ltd for information in relation to the applicants and its holding company. However, that assumption does not advance the respondent’s claim for discovery of communications between the applicants and the Nine Network Australia Pty Ltd. There is no issue raised on the pleadings which would require the applicants to discover the documents sought in para 1.27.

Paragraph 1.28

134. Deleted.

Paragraph 1.29

135. Deleted.

Paragraph 1.30

136. Deleted.

Paragraph 1.31

137. Deleted.

Paragraph 1.32

138. The documents sought in para 1.32 are said to relate to para 52.10 of the applicants’ statement of claim. In para 52.10, as part of the particulars given of the respondent’s malice, the applicants plead:

[T]he respondent is motivated by animosity toward the CEO of Metcash Mr Reitzer and a desire to cause harm to Mr Andrew Reitzer and thereby cause harm to Metcash.

139. The respondent seeks records relating to a telephone call received by Mr Reitzer’s personal assistant from Mr Jeff Penfold, and to a telephone call made by Mr Reitzer to an identified phone number. He also seeks the working records of the investigation referred to by Mr Reitzer in his affidavit sworn on 24 February 2006.
140. This application for discovery indicates a misunderstanding on the part of the respondent as to a party’s obligations in relation to discovery. A party’s obligation is to make discovery in relation to issues raised on the pleadings. From time to time during a proceeding a party may file an affidavit exhibiting evidence for the purpose of an interlocutory application. That evidence does not oblige that party to make discovery of further documents relating to the issue raised in the affidavit and on the interlocutory application in the proceeding. For the reasons given earlier, the obligation to make discovery is governed by the pleadings. Order 15 rule 10 provides that where a party files a pleading or an affidavit which refers to a document, another party may require production of that document. A party therefore is entitled to require another party to produce any document referred to in a pleading at any time. When an affidavit is filed for the purpose of an interlocutory application, O 15 r 10 allows that other party to require production on that interlocutory application of any document referred to in that affidavit. Order 15 rule 10 does not make discoverable in the proceeding a document referred to in an affidavit which is not relevant to an issue raised on the pleadings.
141. The issue which the respondent has identified in para 1.32 is not an issue raised on the pleadings.

Paragraph 1.33

142. Not pressed.

Paragraph 1.34

143. Not pressed.

Paragraph 1.35

144. Not pressed.

Paragraph 1.36

145. Not pressed.

Paragraph 2.1

146. Deleted.

Paragraph 2.2

147. Deleted.

Paragraph 2.3

148. Deleted.

Paragraph 3

149. Not pressed.

Paragraph 4

150. Deleted.
151. The respondent must bring in short minutes relating to the orders to be made in respect of paras 1.8, 1.11 and 1.26. Otherwise the application should be dismissed. I will hear the parties as to costs.
     

I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 19 January 2010