Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp & Ors [1997] FCA 578 (30 June 1997)

FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE - Leave to maintain interlocutory appeal - Discovery - Whether mere fishing exercise - Meaning of "fishing" for the purposes of discovery - Effect of changes to the Rules relating to discovery - Whether it is appropriate to order discovery in relation to issues raised by the pleadings in a case properly before the Court - whether sufficient had been shown to ground a suspicion that there was a good case likely to be aided by discovery - whether there is any special rule in regard to discovery in judical review proceedings.

Judicial Review Act 1903, s 39B

Federal Court Rules, r 15A(6)

Re Federal Commissioner of Taxation; Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247

TNT Australia Pty Limited v Fels (1992) 14 ATPR 40,595

Australian Securities Commission v Somerville (1994) 51 FCR 38

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250

Caltex Refining Co Pty Limited v The Amalgamated Metal Workers' Union (Lockhart, Burchett and Gummow JJ, 6 December 1990, unreported)

WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175

Melbourne Home of Ford Pty Ltd v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450

Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78

Trade Practices Commission v TNT Australia Pty Limited (1994) 16 APR 41,960

AB v National Crime Authority (Jenkinson, Burchett and Whitlam JJ, 3 July 1996, unreported)

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24

Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated [1981] HCA 39; (1981) 148 CLR 170

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397

TREASURER OF THE COMMONWEALTH OF AUSTRALIA -V- CANWEST GLOBAL COMMUNICATIONS CORP & ORS

NG 375 of 1997

VG 214 of 1997

VG 218 of 1997

Beaumont, Burchett and Emmett JJ

Sydney

30 June 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
NEW SOUTH WALES DISTRICT REGISTRY	) NG 375 of 1997
	) VG 214 of 1997
GENERAL DIVISION	) VG 218 of 1997

BETWEEN:	TREASURER OF THE COMMONWEALTH OF AUSTRALIA Applicant
AND:	CANWEST GLOBAL COMMUNICATIONS CORP, DONHOLKEN PTY LTD, SELLI PTY LTD, TURNAND PTY LTD, NUMERATION PTY LTD Respondents

JUDGES	BEAUMONT, BURCHETT and EMMETT JJ
PLACE:	SYDNEY
DATED:	30 JUNE 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

Leave to appeal be refused with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
NEW SOUTH WALES DISTRICT REGISTRY	) NG 375 of 1997
	) VG 214 of 1997
GENERAL DIVISION	) VG 218 of 1997

BETWEEN:	TREASURER OF THE COMMONWEALTH OF AUSTRALIA Applicant
AND:	CANWEST GLOBAL COMMUNICATIONS CORP, DONHOLKEN PTY LTD, SELLI PTY LTD, TURNAND PTY LTD, NUMERATION PTY LTD Respondents

JUDGES:	BEAUMONT, BURCHETT and EMMETT JJ
PLACE:	SYDNEY
DATED:	30 JUNE 1997

REASONS FOR JUDGMENT

THE COURT

The applicant seeks leave to appeal from orders for the discovery of all documents that were before him at the time of the decisions challenged in the principal proceedings, which had been brought against him under s 39B of the Judiciary Act 1903.

It is accepted, as nowadays it must be, that discovery orders are available in proceedings for judicial review: Re Federal Commissioner of Taxation; Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247 at 248-249, per Beaumont J; TNT Australia Pty Limited v Fels (1992) 14 ATPR 40,595 at 40,600, per Gummow J; Australian Securities Commission v Somerville (1994) 51 FCR 38. In the last case, a Full Court (Black CJ, Ryan and Olney JJ) said (at 52-53):

"There seems to be no justification in the authorities to which reference has been made ... for any proposition to the effect that discovery in judicial review proceedings should be treated otherwise than according to the normal principles applicable in civil proceedings."

At the same time, it is well recognized that very often there will be no need of discovery in proceedings of this nature, particularly where reasons have been given for the decision under challenge.

But it was contended in these matters, for the applicant, that the discovery ordered in favour of the respondents enabled them to engage in a mere "fishing exercise" in pursuit of a case unsupported by anything other than bare assertion.

The objection encapsulated in the metaphorical expression "fishing" has been understood as a good ground to deny an order for discovery for a very long time. It was stated in Bray on Discovery (1885) at 16:

"Discovery is given in courts of equity to assist a plaintiff in proving a known case, and not to assist him in a mere roving speculation, the object of which is to see whether he can fish out a case".

What this means was explained, and the metaphor was elaborated, by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250 at 254:

"A `fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not."

But by the late twentieth century, the law has undergone some change in favour of the doubtful plaintiff wishing to penetrate the obscurities of a dark pool. He may, in a range of cases, utilize the provisions of Order 15A rule 6 of the Rules of Court of this Court, or similar rules in other courts, which are expressly framed to enable him to investigate a possible claim by means of the process of discovery of documents. Rule 6 takes, as a sufficient starting point for an order for discovery before action, a situation where "there is reasonable cause to believe that the applicant has or may have the right to obtain relief". (Emphasis added.) The power to order discovery in a case actually pending in the Court can hardly be less extensive than the power which may be used to gain discovery for the benefit of a person who is without evidence even to mount a case, and so resorts to Order 15A. In Caltex Refining Co Pty Limited v The Amalgamated Metal Workers' Union (Lockhart, Burchett and Gummow JJ, 6 December 1990, unreported), the conclusion was drawn by Burchett J (with the agreement of Lockhart and Gummow JJ):

"This objection [ie the `fishing' objection] to applications for discovery of documents does not now have the weight it was once thought to have. Perhaps it should be seen as a metaphor with more colour than substance. Modern procedures actually provide as something desirable for what might once have been criticised as fishing - see Order 15A of the Rules of this Court, particularly Rule 6. It would be ironic if the Court refused an applicant, on this basis, discovery after action, when discovery could have been obtained (at the expense of incurring extra costs) by an application before action.

Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice. The real objection which, in some cases, justifies discovery being limited to particular issues is the objection of oppression."

A modern statement of the principle, which has been repeatedly followed, is that made by Brennan J (with whom Bowen CJ agreed) in W.A. Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 at 181, where what is required to obtain a discovery order in a doubtful case was expressed as follows -

"sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery".

His Honour contrasted such a case (at 182) with a case where "the proceeding is essentially speculative in nature". Similarly, Smithers J in Melbourne Home of Ford Pty Ltd v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450 at 462 looked for "a basis for investigation by this Court". See also Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78 at 83; TNT Australia Pty Limited v Fels (supra); Trade Practices Commission v TNT Australia Pty Limited (1994) 16 ATPR 41,960; and AB v National Crime Authority (Jenkinson, Burchett and Whitlam JJ, 3 July 1996, unreported). But even so low a barrier to discovery may not always impede an application, having regard to the law as stated in Australian Securities Commission v Somerville (supra, at 54). There the joint judgment states:

"Whether it is appropriate to order discovery will depend upon the nature of the case and the stage of the proceedings at which discovery is sought: W.A. Pines per Brennan J at 181. The two cases [Melbourne Home of Ford and W.A. Pines] must be viewed in the light of their own facts."

Where, in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleadings raise an issue for decision to which a party's documents may be relevant, the Court will have a discretion to order discovery. The need to establish a basis for the suspicion described by Brennan J in W.A. Pines will generally be confined to the kind of case to which he was adverting. In the normal case, the pleadings will adequately ground the order.

The present application concerns orders for discovery of documents made after the filing of statements of claim and statements of defence. Some question has been raised whether the orders will require the production of categories of documents arguably extending beyond those related to the issues determined by the pleadings, being documents constructively within the Treasurer's knowledge; but it is clear that the orders were intended to extend only to documents actually relevant to those issues, bearing in mind the effect that was given to "constructive knowledge" in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 45, per Mason J; and see also, per Brennan J, at 66. No evidence has been advanced to show that the orders will in fact prove oppressive by requiring a very large number of documents to be produced that have no relevance, or only a marginal relevance, or that merely duplicate the significance of other documents already produced. Issues of that kind are best left to the judge at first instance. Orders for discovery, being interlocutory in nature, are capable of amendment as required.

Nothing in the pleadings, or in the material that was placed before the Court, suggests any lack of bona fides in the claims made by the various statements of claim. Rather, the material seems to us to provide ground, at the least, for an inference sufficient to satisfy the test stated by Brennan J in W.A. Pines. And it is noteworthy that a vital allegation in the Statement of Claim, for the purposes of the discovery order made, as to a matter within the Treasurer's knowledge, was not denied in his pleadings, but was simply stated not to be admitted. Whether, in those circumstances, orders for discovery should have been made in the terms in which the orders were made was, of course, a question to be answered in the discretion of the judge. It was a discretion with reference to a matter of practice and procedure of the kind to which Gibbs CJ, Aickin, Wilson and Brennan JJ referred in Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated [1981] HCA 39; (1981) 148 CLR 170 at 177. The rule was there affirmed that "a tight rein" should be kept on interlocutory appeals of a procedural nature. This Court accepted the applicability of that rule to cases such as the present in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397, a decision which has since been frequently followed.

Upon the principles stated in Decor Corporation, and having regard to the legal and factual matters discussed in these reasons, it is appropriate that leave to appeal be refused, and that it be refused with costs.

One further matter should be mentioned. Some criticism has been levelled at the deponent of an affidavit filed in the proceedings below, in which an opinion was expressed concerning the relevance of certain documents. Having regard to what we were told by all counsel, we think there must have been some misunderstanding about this affidavit, which we regard as unexceptionable.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 30 June 1997

Counsel for the Applicant: (NG 375/97; VG 214/97; VG 218/97)	Mr Robertson SC and Mr Bell
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent: (VG 218/97)	Mr C.M. Scerri
Solicitors for the Respondent: (VG 218/97)	Arnold Bloch Leibler
Counsel for the Respondent: (NG 375/95) Solicitors for the Respondent: (NG 375/95)	Mr T.F. Bathurst QC and Mr J. Griffiths Clayton Utz
Counsel for the Respondent: (VG 214/97) Solicitors for the Respondent: (VG 214/97)	Mr Nettle QC and Ms Tate Arthur Robinson and Hedderwick
Date of Hearing:	27 June 1997