|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 2 March 1999
Kirella Pty Ltd v Hooper [1999] FCA 169
WORDS AND PHRASES - "matter", "preliminary discovery"
Commonwealth of Australia Constitution Act 1901 (Cth) ss 75, 76 and 77
Federal Court of Australia Act 1976 (Cth) s 5, 19, 23 and 59
Judiciary Act 1903 (Cth) s 39B
Trade Practices Act 1974 (Cth) s 52
Federal Court Rules O 15A
Fair Trading Act 1985 (NSW) s 42
Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, followed
Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22, followed
Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457, followed
Fencott v Muller (1983) 152 CLR 570, followed
Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, applied
Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289, applied
Croome v State of Tasmania [1997] HCA 5; (1997) 191 CLR 119, cited
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141, cited
Norwich Pharmacal v Customs & Exercise (CA) [1973] UKHL 6; [1974] AC 133, applied
British Steel Corp v Granada Television Ltd [1981] AC 1096, applied
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434, cited
Smith Kline and French v Department of Community Service [1989] FCA 384; (1990) 22 FCR 73, cited
McIntyre v Perkes [1990] FCA 100; (1990) 22 FCR 260, cited
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, cited
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, cited
Parsons v Martin (1984) 5 FCR 235, cited
Gosper v Sawyer [1985] HCA 19; (1985) 160 CLR 548, cited
KIRELLA PTY LIMITED v
KENNETH FRANCIS HOOPER, HOOPER COMMUNICATIONS PTY LIMITED, KATHERINE MAYSON AND JIM PHOTIOS
NG 1036 OF 1998
TAMBERLIN J
SYDNEY
1 MARCH 1999 IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: (ACN 079 721 127)
Applicant AND: First Respondent
HOOPER COMMUNICATIONS PTY LIMITED
(ACN 060 554 805)
Second Respondent
KATHERINE MAYSON
Third Respondent
JIM PHOTIOS
Fourth Respondent JUDGE:
NEW SOUTH WALES DISTRICT REGISTRY NG 1036 OF 1998
KIRELLA PTY LIMITED
KENNETH FRANCIS HOOPER
TAMBERLIN J DATE OF ORDER: 1 MARCH 1999 WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The motion to dismiss the application for preliminary discovery is dismissed.
2. The order for preliminary discovery as sought be made.
3. All parties, including the Attorney-General, intervening on behalf of the Commonwealth, file and serve written submissions on the question of costs within seven days.
4. The question of costs is stood over to Thursday 18 March 1999 at 9.30 am.
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 1036 OF 1998 |
|
BETWEEN: | KIRELLA PTY LIMITED
(ACN 079 721 127) Applicant |
|
AND: | KENNETH FRANCIS HOOPER
First Respondent
HOOPER COMMUNICATIONS PTY LIMITED (ACN 060 554 805) Second Respondent
KATHERINE MAYSON Third Respondent
JIM PHOTIOS Fourth Respondent |
JUDGE:
TAMBERLIN J DATE: 1 MARCH 1999 PLACE: SYDNEY
2 The respondents contend that there is no jurisdiction to make an order that the respondents attend to be orally examined in relation to the identity or description of persons said to be involved in the publication of certain material alleged to be misleading or deceptive within the meaning of s 52 of the Trade Practices Act 1974 ("the TPA"). The application seeks further orders that the respondents produce documents relating to the identity or description of those persons and that the respondents disclose by way of discovery any document relating to the question whether the applicant has the right to obtain relief from the Court. The Court's jurisdiction to make these orders is also challenged.
3 The relevant provisions of O 15A under challenge provide:
"ORDER 15A - PRELIMINARY DISCOVERY AND DISCOVERY FROM NON-PARTYFactual background
...
3.(1) Where an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the court against that person ... and it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had possession of any document or thing, tending to assist in such ascertainment, the Court may make an order under subrule (2).
(2) The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, shall -
(a) attend before the Court to be examined in relation to the description of the person concerned;
(b) make discovery to the applicant of all documents which are or have been in the person's or its possession relating to the description of the person concerned.
(3) Where the Court makes an order under paragraph (2)(a), it may -
(a) order that the person or corporation against whom or which the order is made shall produce to the Court on the examination any document or thing in the person's or its possession relating to the description of the person concerned;
(b) direct that the examination be held before a Registrar.
...
6. Where -
(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;
(b) after making all reasonable inquires, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and
(c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision -
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c)."
4 Kirella Pty Limited ("Kirella") is the trustee of the Kirella Unit Trust. The Trust is the developer of a site known as "Old Arnott's Biscuits Factory Site" at Homebush, a suburb of Sydney. In early 1998, Kirella made an application to the Concord Municipal Council for the site to be rezoned so that it could proceed with the development. On or about 22 June 1998, Mr Glew, a director of Kirella, received a document which had been distributed in the area. The document contains a "warning" in relation to the Arnott's redevelopment and makes certain statements in relation to the development. It asserts, among other things, that the development threatens the future existence of North Strathfield as a residential area, and will cause traffic problems. The document was attributed to the "North Strathfield Resident Action Group" and gave an address for service at a Post Office box. On or about 22 June 1998, Mr Glew spoke with the Mayor of the Concord Municipal Council and was informed that the Council had not had any contact or heard from the Group. On about 3 July 1998, Mr Glew was informed by the project manager of the site development that he had written to the author and publisher at the address but there had been no reply received.
5 Subsequent to the distribution of the initial document, a series of other newsletters and documents were circulated which were critical of the Arnott's development. One of these documents provided a telephone number in the name of a "Mr K Mason" as convenor of the Group. This was in addition to the Post Office reference included in the newsletter. Mr Glew called that number but was only able to leave a message on an answering machine and no response was forthcoming. On 1 September 1998 Mr Glew attended a meeting of members of the community near the site and was informed that they had received copies of newsletters from the Group. Further inquiries as to their origin and distribution were made but without any successful outcome.
6 In the course of discussion with an officer of the Council on 17 July 1998, Mr Glew was informed that a local resident reported that she had been contacted by a person identifying himself as Ken Hooper in response to a letter she had written to the North Strathfield Resident Action Group. Mr Glew obtained the facsimile number of Mr Hooper and sent him a fax but that there was no reply. He then carried out a search in respect of a company, Hooper Communications Pty Limited, which showed Mr Kenneth Francis Hooper and Ms Katherine Mayson as shareholders of the company, and Mr Hooper as director and secretary of the company. On 24 July 1998 Mr Glew wrote to Mr Hooper, enclosing a copy of a draft newsletter which he proposed to distribute. On the same date Mr Glew received a letter from Mr Ajaka, solicitor for Mr Kenneth Hooper, stating that his client was a registered lobbyist with the New South Wales Government and that he had acted in that capacity only for small independent retailers. The letter stated that Mr Hooper's reputation was paramount and any damage to his reputation would result in substantial damages and losses to him. The letter requested that Mr Glew should not publish or refer to Mr Hooper or Ken Hooper Communications Pty Limited.
7 On or about 14 September 1998, a further document was distributed in the Concord Strathfield area which referred to "Sydney Independent Retailers" and stated that the document was "Written and Authorised by K F Hooper, 20 Ocean Street, Woollahra". Mr Glew caused further inquiries to be made. On 22 September 1998 he addressed a Council meeting referring to the newsletter.
8 Mr Glew, in his affidavit, also refers to a Mr Jim Photios contacting a local resident as a representative of the North Strathfield Resident Action Group. Mr Photios is said to have been contacted and to have admitted that he had an involvement with North Strathfield Resident Action Group.
9 Mr Glew refers to a number of statements made in the publications of the North Strathfield Resident Action Group and the Sydney Independent Retailers. Mr Glew says that the statements are false and that the applicant has sustained loss and damages and wishes to take proceedings pursuant to s 52 of the TPA and s 42 of the Fair Trading Act 1985 (NSW) ("the FTA") in respect of such statements. The applicant has sought orders for preliminary discovery in order to ascertain the identity and description of persons concerned with the publications and to clarify the nature and terms of the relief which will be sought from the Court.
10 The evidence also includes an affidavit dated 30 September 1998 of Paul Tressider, another director of Kirella, which corroborates the evidence of Mr Glew in some respects.
11 Pursuant to s 78B of the Judiciary Act 1903 (Cth), Notices of a Constitutional Matter were sent to the Attorneys-General of the Commonwealth of Australia, the States, the Northern Territory and the Australian Capital Territory. The Commonwealth Attorney-General intervened in the proceedings by Senior Counsel and made oral and written submissions. No application was made by any of the other recipients to address the Court on the constitutional question.
12 The evidence filed by the applicant was not challenged in cross-examination. Nor was any opposing evidence filed by the respondents. For the purpose only of this application, I assume that the matters alleged as to the merits of the claim have substance and I will therefore proceed on that basis. I now turn to the legal issues.
The issues
13 Against the above factual background, the question as to the validity of O 15A falls to be considered. The issues can be considered under two heads:
1. Whether O 15A is invalid because it purports to vest in the Federal Court jurisdiction in respect of something which is not a "matter" within the meaning of ss 75, 76 and 77 of the Commonwealth of Australia Constitution Act 1901 (Cth) ("the Constitution").
2. Whether O 15A is authorised by the rule-making power in s 59 of the FCA, and whether it is invalid because there is no law of the Commonwealth Parliament which confers jurisdiction on the Court as required by s 19(1) of the FCA to hear and determine matters under O 15A.
Whether O 15A is invalid because it purports to vest in the Federal Court jurisdiction in respect of something which is not a "matter" within the meaning of ss 75, 76 and 77 of the Constitution.
14 Section 71 of the Constitution provides that:
"The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction..."15 The Federal Court of Australia was created by the FCA which provides that:
"5(1) A federal court to be known as the Federal Court of Australia, is created by this Act.16 Section 76 of the Constitution provides:
(2) The Court is a superior court of record and is a court of law and equity."
"The Parliament may make laws conferring original jurisdiction on the High Court in any matter -17 Section 77 of the Constitution confers power on Parliament to make laws which define the jurisdiction of any federal court . It provides:
...
(ii) Arising under any laws made by Parliament:
..."
"77 With respect to any of the matters mentioned in the last two sections the Parliament may make laws -18 Section 39B(1A) of the Judiciary Act 1903 (Cth) provides that:
(i) Defining the jurisdiction of any federal court other than the High Court:
..."
"The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:19 The respondents' first argument is that at the preliminary discovery stage there is no "matter", within the meaning of ss 75, 76 and 77 of the Constitution, in existence and therefore the Court has no jurisdiction to make an order for preliminary discovery. It is said that the grant of preliminary discovery is anterior to and distinct from any existing "matter". At the preliminary discovery stage any substantive claims under the TPA and the FTA are only in contemplation and the institution of such claims is dependant on the result of the preliminary discovery application. It is further said that there is no right, duty or liability of the respondent who has been joined to a bare application under O 15A which can be established by an order that a person be examined or give discovery.
...
(c) arising under any laws made by the Parliament."
20 At the outset it is necessary to bear in mind that the meaning of the expression "matter" in the present context involves a question of constitutional interpretation. The general principle is that a wide meaning should be given to federal legislative power. This was expressed by McHugh J in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 100 in these terms:
"Whenever any question arises as to whether a power conferred by s51 of the Constitution should be given a wide or narrow meaning, the settled doctrine of this Court is that it should be given the wider meaning unless something in the rest of the Constitution indicates, expressly or by implication, that the narrow meaning best carries out the overall purposes of the Constitution."21 In the present case it is difficult to conclude that a narrow interpretation of the word "matter" will carry out any overall purpose of the Constitution.
22 The meaning of the word "matter" within Ch III of the Constitution has been recognised as being affected by the context in each case where it is used: see Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22 at 37.
23 In the context of accrued or pendent jurisdiction of federal courts in relation to associated issues of State law, Mason J in Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 at 514 said, when considering the interpretation of the expression "matter":
"In deciding whether to attribute either a broad or narrow content to `matter', we should take into account that the adoption of the broad meaning will lead to the speedier determination of entire controversies between parties without undue duplication of proceedings ... This circumstance is an additional reason for giving the word a broad rather than a narrow meaning."24 A similar view in the context of accrued jurisdiction is expressed in Fencott v Muller (1983) 152 CLR 570 at 608 where Mason, Murphy, Brennan and Deane JJ, said in relation to the expression "matter":
"... it is necessary to attribute to `matter' in ss. 75 and 76 of the Constitution a connotation which does not deny to federal judicial power its primary character: that is, the power of a sovereign authority `to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property' ... The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion. In identifying a s. 76(ii) matter, it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of that controversy."25 While noting the different context in which the above statements arise, they nevertheless indicate that generally a limiting approach to the interpretation of the expression "matter" is not appropriate, and that the essential function of judicial power in determining controversies requires the exercise of judicial power over the whole of each controversy. Authority for a liberal connotation of the term "matter" more generally can be seen in Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22 at 37, which affirmed earlier authorities and pointed out that the word is one of wide connotation and perhaps is the widest term to denote controversies which might come before a Court of Justice.
26 While there is no direct authority on the present question, the decision of the High Court in Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 provides a useful starting point. In that case the High Court decided that the word "matter" as used in s 76 did not extend to questions which were of an advisory or hypothetical nature. At 265 the Court said:
"... we do not think that the word `matter' in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law.27 The majority in Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289 at 303, affirmed by the High Court in Croome v State of Tasmania [1997] HCA 5; (1997) 191 CLR 119, found two critical concepts in the above passages from Re Judiciary and Navigation Acts:
... a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. The adjudication of the Court may be sought in proceedings inter-partes or ex-parte, or, if the Court had the requisite jurisdiction, even in those administrative proceedings with reference to the custody, residence and management of the affairs of infants or lunatics..."
"One is the notion of an abstract question of law not involving the right or duty of any body or person; the second is the making of a declaration of law divorced or dissociated from any attempt to administer it."28 In the present case it cannot be said that the making of the substantive claim under the TPA is advisory or hypothetical. Nor can it be said that the applicant is asking the Court to address an abstract question of law or to make a declaration of law divorced from any attempt to administer it. The applicant's case is that there has been deceptive and misleading conduct causing damage and that it has a present immediate claim to a right under the TPA and to the remedies provided in that Act. In order to enforce that right it is necessary to identify those who may be liable for the breach. It has long been recognised in courts of equity that preliminary discovery is a useful and indeed necessary part of a court's machinery to effectively administer justice. A right without a remedy is a right in name only.
29 The present orders are sought to enable the Court to exercise its jurisdiction in the administration of a justice concerning an existing right under the TPA. The claim arises under that Act because the right to the remedy is conferred by it: see R v Commonwealth Court of Conciliation & Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 150. It is true that one fact, namely the identity of the appropriate respondent or respondents, is not known with certainty, and therefore legal proceedings making the substantive claim for relief have not yet been initiated under the TPA. Nevertheless, in my view, within the principles expressed in the Re Judiciary and Navigation Acts, there is a "matter" presently in existence, namely the accrued and fully constituted right to claim relief under the TPA. The mechanism of preliminary discovery enables the Court to determine and enforce that claim of right in exercise of its jurisdiction with respect to it.
30 A further submission was made that preliminary discovery amounts to `fishing'. In my view in this case, it cannot be said that this is so having regard to the evidence as to the involvement of the respondents referred to in the supporting affidavits.
31 It may be the case that the grant of preliminary discovery does not ultimately reveal the identity of any specific respondents and therefore no action under the TPA is commenced. However, in my view, this does not mean that the Federal Court lacks jurisdiction to order preliminary discovery. In a real and practical way the ascertainment of the identity of the persons responsible for breaching that Act is necessary or closely related to the exercise of jurisdiction to resolve the substantive claim of right presently existing under the TPA. If the Court is found not to have jurisdiction to enable a claimant to determine the identity and facts necessary to assist in the enforcement of the right, then the conferral of that right and of the remedies provided for in Part VI of the TPA may reasonably be perceived as otiose.
32 It is then necessary to consider the power of the Court to exercise its jurisdiction in relation to preliminary discovery. The power of a superior court to order preliminary discovery has been exercised by courts of equity over many centuries. The nature of the action for preliminary discovery was considered by Lord Reid in Norwich Pharmacal v Customs & Exercise (CA) [1973] UKHL 6; [1974] AC 133 at 173 in these terms:
"Discovery as a remedy in equity has a very long history. The chief occasion for its being ordered was to assist a party in an existing litigation. But this was extended at an early date to assist a person who contemplated litigation against the person from whom discovery was sought, if for various reasons it was just and necessary that he should have discovery at that stage. Such discovery might disclose the identity of others who might be joined as defendants with the person from whom discovery was sought. Indeed in some cases it would seem that the main object in seeking discovery was to find the identity of possible other defendants ..." (Emphasis added)33 The Norwich case was one in which the owners of a chemical patent sought to discover from the Customs and Excise Commissioners the names of the alleged illicit importers of the chemical compound. The Commissioners disputed the plaintiff's right to bring such an action. The House of Lords rejected the defences and held that the action should succeed.
34 In British Steel Corp v Granada Television Ltd [1981] AC 1096 at 1104, Sir Robert Megarry V-C referred to the Norwich case in these terms:
"Put shortly, the decision is to the effect that a person who becomes involved in the tortious acts of others, even if innocently, is under a duty to assist a person who is injured by those acts by giving him full information by way of discovery and disclosure of the identity of the tortfeasor. Such an action may be brought even though the plaintiff has no other cause of action, and seeks no other relief, though it cannot be brought against someone who is not involved in the wrongdoing beyond a mere witness or having some relevant document in his possession. ... in addition to this process [discovery], which has now long been part of the ordinary process of litigation, there was a procedure whereby a would-be plaintiff could bring a bill of discovery in equity in order to find out who was the proper person to bring his action against; and it is this process which led to the Norwich Pharmacal case." (Emphasis added)35 The above decisions were cited by Gummow J in his dissenting judgment in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 at 445-446.
36 Section 5 of the FCA creates the Federal Court of Australia as a national superior court of record and as a court of both law and equity: see Smith Kline and French v Department of Community Service [1989] FCA 384; (1990) 22 FCR 73 at 83, and McIntyre v Perkes [1990] FCA 100; (1990) 22 FCR 260. The investiture of jurisdiction in this Court with respect to a claim, under the TPA, for example, operates to confer all necessary or convenient incidental powers to exercise that jurisdiction. This includes power to provide machinery appropriate to enable that jurisdiction to be exercised: see Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 561, and Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 135-136 and Parsons v Martin (1984) 5 FCR 235 at 241. This incidental power is reinforced by s 23 of the FCA which provides that the Federal Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds as the Court thinks appropriate.
37 It is consistent with the creation of the Federal Court as a superior court that it should have both jurisdiction and power to make orders to assist in the identification of a wrong-doer against whom there are reasonable grounds to claim relief. In the present circumstances the preliminary discovery machinery is necessary to enable the applicant to proceed with what appears prima facie to be a bona fide claim under the TPA. The administration of justice would be otherwise frustrated.
38 That is not to say that the substantive claim must succeed. That question is a matter for determination in the light of the evidence at trial. In the present case, it can be said, to use the language of Norwich Pharmacal, that the respondents are in one way or another, as outlined in the evidence of Mr Glew, "involved" or "mixed up" in the wrongful acts which are the subject of the contemplated proceedings. It is therefore appropriate that they should be required to disclose the extent of their knowledge of the relevant circumstances.
39 For the above reasons, I am satisfied that the preliminary discovery sought in the present case involves an exercise of power in relation to a matter arising under the TPA and that the grant of preliminary discovery is within jurisdiction because it is closely related to determination of the underlying dispute namely: whether the applicant is entitled to relief under Part VI of the Act.
Order 15A is not authorised by s 59 of the FCA and is contrary to s 19
40 Section 59 of the FCA concerns the Judges' rule-making power and provides:
"59(1) The Judges of the Court ... may make Rules of Court, not inconsistent with this Act, making provision for or in relation to the practice and procedure to be followed in the Court ... and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court.41 The respondents submit that s 59 cannot confer on or extend the jurisdiction of the Federal Court, as it only confers a power to regulate the practice of the Court and not to alter the nature or extent of its jurisdiction: see Gosper v Sawyer [1985] HCA 19; (1985) 160 CLR 548 at 558 and 566. It is also said that in the absence of substantive proceedings being before the Court, O 15A purports to create a substantive right to apply to the Court for an exercise of judicial power. It is said this claim of right is objectionable because it cannot be described as ancillary to any matter or proceeding otherwise commenced in the Court. It is further said that s 59(2)(c), which confers power to make rules with respect to discovery, does not extend to the making of rules providing for a summary procedure in which the only remedy is to determine whether a cause of action exists or who may be the appropriate respondent.
(2) In particular, the Rules of Court may make provision for or in relation to:
...
(c) interrogatories and discovery, production and inspection of documents ..." (Emphasis added)
42 The respondents further submit that O 15A purports to vest jurisdiction in the Court, and that such jurisdiction under s 19(1) of the FCA can only be conferred by the Parliament. The rules are made by the Judges and not by Parliament. Accordingly, it is said, O 15A is outside s 19 of the FCA.
43 In my view, O 15A is an exercise of rule-making power by the Judges in accordance with s 59 of the FCA, and is not a conferral of jurisdiction on the Court within s 19(1).
44 Section 59 is cast in wide and general terms which empower the grant of preliminary discovery. The power is conferred in relation to all matters and things incidental to the Court's practice and procedure, or necessary or convenient in the discretion of the Judges for the purpose of conducting any business of the Court. There is no doubt, provided the Court otherwise has jurisdiction, that this section empowers rules which create rights and obligations in respect of procedural matters in the exercise of the Court's jurisdiction.
45 The relevant matter, in respect of which jurisdiction is conferred in accordance with s 19 of the FCA in the present case, is the enforcement of a claim of right with respect to statutory breaches arising under the TPA. This is the Act made by Parliament under which the matter arises. The ascertainment of the appropriate respondent is both necessary and convenient within the meaning of s 59 in order that the rights and remedies conferred by the TPA can be determined and enforced by the Court. Further, such a mechanism, in my view, is sufficiently related to the overall federal matter to be properly categorised as forming part of that matter.
46 My conclusion is that O 15A is not contrary to s 19 of the FCA because it does not purport to confer federal jurisdiction, but falls within the rule-making power in s 59. The Court has the necessary jurisdiction because, at the time when preliminary discovery is sought in the present case, there is a matter in existence and the grant of preliminary discovery is an exercise of power with respect to that matter.
Conclusion
47 The motion to dismiss the application for preliminary discovery is dismissed. The order for preliminary discovery as sought should be made. The parties including the Attorney-General intervening on behalf of the Commonwealth should file and serve written submissions on costs within seven days. The matter is stood over to Thursday 18 March 1999 at 9.30 am for argument if any on the question of costs.
|
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice Tamberlin. |
Associate:
Dated: 1 March 1999
|
Counsel for the Applicant: | D Hammerschlag |
| Solicitor for the Applicant: | Horowitz & Bilinsky |
| Counsel for the Respondents: | N Perram |
| Solicitor for the Respondents: | Bush Burke & Company |
| Counsel for the Attorney- General intervening on behalf of the Commonwealth: |
G Reynolds SC R Lancaster |
|
Date of Hearing: | 16 and 17 December 1998 |
| Date of Judgment: | 1 March 1999 |
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/1999/169.html