CATCHWORDS De ne : a {A>-o Practice - Discovery - Documents coming into possession after affidavit of documents sworn. TRADE PRACTICES COMMISSION v. No. G.44 of 1978 Franki J. 18 and 27 April 1983 Sydney T.N.T. MANAGEMENT PTY. LIMITED & ORS. CATCHWORDS Practice - Discovery - Documents coming into possession after affidavit of documents sworn. TRADE PRACTICES COMMISSION v. T.N.T. MANAGEMENT PTY. LIMITED & ORS. No. G.44 of 1978 Franki J. 18 April 1983 Sydney * IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.44 of 1978 GENERAL DIVISION ) Between: TRADE PRACTICES COMMISSION Plaintiff - and - T.N.T. MANAGEMENT PTY. LIMITED First Defendant BRAMBLES HOLDINGS LIMITED Second Defendant MAYNE NICKLESS LIMITED Third Defendant YOUNGS TRANSPORT PTY. LIMITED Fourth Defendant ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED Fifth Defendant EXPRESS PREIGHT PTY. LIMITED Sixth Defendant ASSOCIATED STEAMSHIPS PTY. LIMITED Seventh Defendant IPEC HOLDINGS LIMITED Eighth Defendant INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED Ninth Defendant 18 April 1983 REASONS FOR JUDGMENT I propose to give the following oral judgment because of the urgency of this matter. The first, fifth and seventn defendants filed a notice of motion seeking various orders which, for today, I may say, unclude (1) an order that the hearing date orf 17 May be vacated; and (2) orders concerning a claim for privilege of certain documents. It was agreed by senior counsel appearing for the applicants in the motion, and senior counsel for the Trade Practices Commission, that I should deal first with the application concerning vacation of the hearing date, 17 May 1983. The applicants now seek orders that the hearing date be vacated and, when inspection is complete and all parties are ready, that it be listed for mention to fix a suitable hearing date. Counsel appeared for the second and third defendants. Both these counsel wished me to hear notices of motion which had not been served within the required time. Both motions raised other issues which could take some time to determine and which were not involved in the notice of motion by the first, fifth and seventh defendants. I refused to hear the motions by the second and third defendants today because they did not comply with the rules. I allowed counsel for these two defendants, and the solicitor who appeared for the sixth, eighth and ninth defendants, to state those defendants' attitudes on the question of vacation of the date. Counsel for the second defendant supported the application for the vacation of the date; counsel for the third defendant did not support the application to vacate the hearing date but suggested an adjournment of two weeks might be expected - or, at least, might be likely to be made by his client - after the case had opened, if it opened on 17 May. The solicitor for the sixth, eighth and ninth defendants said that those defendants neither opposed nor supported the application. I have dealt many times with applications in this case and it is unnecessary to deal with the history of it which, up to 31 March 1983, is to be found in judgments of mine delivered on 23 October 1981, 19 November 1981 and 18 February 1983. The matter was last before me on 31 March 1983 when I dismissed an application from the first, fifth and seventh defendants to vacate the hearing date of 17 May 1983 on the ground that their then senior counsel was not able to appear because of the unexpected length of the matter in which he was then engaged. Passing now to the question of discovery: no notice for discovery in compliance with the High Court rules was ever filed by the defendants, but I agreed, in my judgment of 21 May 1982, that I would treat the position as 1f the commission had been served with a notice of discovery and that 1t had sought to comply with the obligations tnen falling upon a party so served. On 31 March 1983 Miss Wynne Patricia Hannon, who had previously sworn certain affidavits in the first part of 1981 in relation to discovery which had been the subject o£ proceedings before me in which I delivered judgments on 21 May 1981, 5 June and 25 June 1981, filed a further affidavit of 91 pages dealing with a number of other documents. fhe Majority of these documents were offered for inspection and copying but privilege was claimed for some. The matter is still proceeding under the High Court rules - see my Judgment of 8 May 1981 - and the relevant High Court rule dealing with affidavits of discovery is rule 9 of order 32, which reads: "A party may serve a notice in accordance with the form numbered 30 in the First Schedule upon another party to a proceeding requiring him to make discovery on oath of the documents which are or have been in his possession or power, relating to a matter in question in the proceeding." « The critical words of this rule are "are or have been in his possession or power". In my opinion, the documents which should have been included in the affidavit of discovery of 571 pages of Miss Hannon of 27 January 198], were those which then fell within the words of the relevant rule and, 1n particular, the words "are or have been". Tt was conceded by senior counsel for the Trade Practices Commission that between 5 and 14 documents fell into this category. I have considered the cases of Myers v. Elman (1940) A.C. 282; and Mitchell v. Darley Main Colliery Co. (1884) 1 Ca. & El. 215 at 216. In my opinion, neither of these cases refers to documents which do not fall within words fulfilling the same function as those appearing in the High Court rule, namely, documents which "are or have been" at the time of the affidavit in the possession or power of the party swearing the affidavit. It is not clear to me that there was any failure on the part of the Trade Practices Commission to discover, or offer inspection of, any documents which fell within order 32 rule 9, except for the 5 to 14 documents to which I have referred. However, it was put by senior counsel for the Trade Practices Commission that this extensive affidavit of 31 March 1983 was filed because it was sought to save time by giving the defendants advance notice before the hearing. They were advised by letter at the same time that "the supplementary affidavit is filed and served by the plaintiff without any admissions by it that it was obliged by the rules of court so to do". I said at pp.43,010-43,011 of my roneoed judgment in earlier proceedings in this case that I handed down on 21 May 1981 (1981) 3 A.T.P.R., case number 40-221: "I appreciate that in a case involving discovery of the magnitude of that involved aun this case 1t 1s extremely difficult to prepare an affidavit which is beyond criticism, without that affidavit being of almost impractical lengtn and complexity. In saylng this, I do not wish it to be thought that I am suggesting that litigants can expect the Court no read offidavits ar discovery with particular sympathy, but in this case I think the course I propose to take is the appropriate course." I see no reason why any documents, other than those which should have been discovered initially, should have been discovered in April or indeed any time prior to that. There is evidence that the documents referred to in the supplementary affidavit number perhaps 9000 or 10,000 pages, and an effort is being made by the applicants in this motion to photocopy every page and there have been some mechanical problems in doing this. Apparently the importance of this material has not yet been assessed by the applicants. So far as I can see, the number of documents which fell within order 32 rule 9 at the time the first affidavit was sworn was no more than 5 to 14; and, indeed, if one took the view that the relevant date was 11 June 1981, the number of documents which might have been available at that time would still have been comparatively few. Senior counsel for the dpplicant stated that his clients would be prejudiced if the date was not vacated. If it was not vacated, he stated that he would not be able to prepare his case properly and an injustice would arise. A case of this nature always raises difficulties. The present senior counsel, as I said, replaced another senior counsel whose previous case did not finish in time. This could always happen and could happen from time to time if the present date is vacated. It follows from what I have said that there is only a very small number of documents which ought to have been discovered which have not been discovered. I cannot see any reason why the matter should be further adjourned and I refuse to vacate the date. I will adjourn the question of privilege to a later date. I can deal with it next Tuesday, a week from today. I have got to be in Melbourne for the rest of the week. "IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.44 of 1978 GENERAL DIVISION ) Between: TRADE PRACTICES COMMISSION Plaintiff -and- T.N.T. MANAGEMENT PTY. LIMITED First Defendant BRAMBLES HOLDINGS LIMITED Second Defendant MAYNE NICKLESS LIMITED Third Defendant YOUNGS TRANSPORT PTY. LIMITED Fourth Defendant ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED _ Fifth Defendant EXPRESS FREIGHT PTY. LIMITED Sixth Defendant ASSOCIATED STEAMSHIPS PTY. LIMITED Seventh Defendant IPEC HOLDINGS LIMITED Eighth Defendant INTERSTATE PARCEL EXPRESS CO. PTY. LIMITED Ninth Defendant 27 April 1983 REASONS FOR JUDGMENT FRANKI J. T.N.T. Management Pty. Lamited, Ansett Transport Industries (Operations) Pty. Limited and Associated Steamships Pty. Limited, the first, fifth and seventh defendants, on 12 April 1983 faled a notice of motion in matter No. G.44 of 1978 seeking orders that: (a) the plaintiff, the Trade Practices Commission ("the Commission") file within 14 days an affidavit making further and better discovery; (b) certain documents for which the plaintiff has claimed legal professional privilege be available for inspection; (c) the applicants have access to and the right to make copies of documents produced by a Mr Rochfort in answer to a subpoena served on him; and (d) the hearing date of 17 May 1983 be vacated. On 18 April 1983 I heard this motion so far as it related to matters other than the question of legal professional privilege and access to the documents produced by Mr Rochfort. On 18 April 1983 I gave an oral judgment on the question of discovery and the application to vacate the hearing date. Inter alia, I said, in substance, that the only documents which should have been included in the original affidavit of discovery of 571 pages by Miss Hannon sworn on 27 January 1981 were those which fell within the words of order 32 rule 9 of the High Court rules, the relevant rules in this case, and in particular the words "are or have been". It appears that the only documents which were not included in the affidavit of discovery and which fell within the words "are or have been" are between five and fourteen in number and these documents are and have been available for inspection. On 18 April 1983 the Commission foreshadowed that it would be seeking to file a further affidavit of Miss W.P. Hannon on the issue of legal professional privilege, and yesterday I allowed an affidavit sworn on 19 April 1983 by Miss Hannon to be read. After this latest affidavit had been read the only document for which the claim to inspect was now pressed was a statement dated 28 July 1981. In conformity wath my earlier ruling that since this document bears the date after 27 January 1981 I consider that 1t need not have been discovered and I am not prepared to entertain an application for the inspection of it. I consider 1t important to bear in mind that discovery is only for the purpose of facilitating the proper trial of an action and it is important that satisfying the requirements of discovery should not involve a task of such magnitude that the determination of the real issues in an action may be delayed and, indeed in an extreme case, the determination of these issues could conceivably become almost impossible. After the affidavat of discovery is sworn, it must be expected in any action that documents which may be relevant will come into the possession of a party almost on a daily basis. A proper claim for legal professional privilege would normally be available in relation to many of these documents but, in my opinion, it would be quite impractical for a party to have to comply with the anitial obligations of discovery on an on-going basis. Particularly is this so in the Federal Court where there is a right of appeal without leave from the determinations of a judge on interlocutory matters. In a case where the proceedings are governed by the Pederal Court rule - that 1s not these proceedings however - order 15 rule 3 of those rules gives the Court specific power to make orders "To prevent unnecessary discovery". I dismiss the motion and reserve the question of costs in it. I pass now to the two motions by the second defendant and I will read my judgment in those motions. I commence it now. I will deal next with the two notices of motion filed on 19 April 1983 by the second defendant, Brambles Holdings Limited, in matter number G.44 of 1978. Because of the need for a decision to be given urgently, I will give my judgment orally. The first motion by this defendant sought: (a) that the plaintiff, the Trade Practices Commission ("the Commission") file a further and better affidavit of discovery in relation to its claim for legal professional privilege; and (b) that the second defendant have leave to inspect and copy documents produced by a Mr Rochfort in answer to a subpoena served on him. I made appropriate consent orders in relation to the documents produced by Mr Rochfort at the beginning of yesterday's proceedings, before I dealt with a motion by the first, fifth and seventh defendants. The affidavits of Miss W.P. Hannon of 31 March 1983, 15 April 1983 and 19 April 1983 were read in this motion. As I have said in my reasons of 18 April 1983 in the motion by the first, fifth and seventh defendants, no obligation rested on the Commission to disclose any documents, which were not documents, which, at 27 January 1981, fell within the words "are or have been" appearing in order 32 rule 9 of the High Court rules. Mr Sweeney, counsel for the second defendant, sought to cross-examine Miss Hannon on her affidavits. I refused this application since, 1n my opinion, it is perfectly clear that the deponent swearing such affidavits is not to be cross-examined in an endeavour to attack the conclusiveness of such affidavits. The conclusions which I have already expressed in my judgment in the motion by the first, fifth and seventh defendants are also applicable to this motion so far as 1t seeks a better affidavit of discovery in relation to the documents claimed for legal professional privilege. I dismiss the motion and I reserve the question of costs. The second motion by the second defendant was filed on the same day as the first motion, on which I have just given judgment, and sought orders in substance: (a) that the proceedings against the second defendant be struck out, that judgment be entered for the second defendant, that the plaintiff in the action, the Commission, pay the second defendant's costs of the action; (b) alternatively, the action be stayed; oO (c) alternatively, the hearing date of 17 May 1983 be vacated and in the event of my refusing (a) but granting (b) or (c) that certain of the second defendant's costs on a solicitor and client basis be paid. In addition to an affidavit by Mr D.E.J. Ryan, a solicitor in the employ of the second defendant's solicitors, I allowed all but two paragraphs of an affidavit by Mr P.J. Perry, a partner in the firm of the solicitors for the second defendant, to be read subject to reserving an opportunity to argue the relevance of Mr Perry's affidavit later. No argument on this point took place. Mr Sweeney, counsel for the second defendant, argued that a duty rested on the Commission, which he submitted was in the same position as the Crown, not to take what he called "unfair tactical advantage" of the second defendant. He submitted the "Trade Practices Commission had wrongly and improperly delayed in giving discovery". Mr Sweeney sought to equate the Commission's duty in this case with that of the Crown in a criminal prosecution. He alleged that there had been a delay by the Commission in failing to advise the second defendant that the documents which came into its possession after the affidavit of Miss Hannon of 27 January 1981 had come into its possession. As I said in my reasons for judgment in the first, fifth and seventh defendant's motion, I consider that there was no obligation on the Commission to discover any document which came to 1ts possession after 27 January 1981 and I do not consider that the Commission has taken any "unfair tactical advantage" in this case in relation to inspection or discovery. Mr Sweeney also argued at length that the Commission had been guilty of what he called "prolonged and inexcusable" delay and he used this submission in support of his application that the proceedings against the second defendant be struck out. I reject any allegation that the Commission has been responsible for any "prolonged and inexcusable" delay in this case. It is appropriate to make it clear I do not consider that the Commission in any way in this matter has sought to "avoid a fair discovery", a phrase which appears in Bray's The Principles and Practice of Discovery at p.588, and which was adopted by Mr Sweeney. Mr Sweeney submitted that the conduct of the Commission in relation to discovery has been such that I should order that the plaintiff's action be struck out with costs. In my opinion, apart from the question of those documents, numbering between 5 and 14, which senior counsel for the Commission conceded ought to have been discovered in the first affidavit, the Commission had satisfied its obligations in regard to discovery. As I indicated in my judgment of 21 May 1981, discovery in an action of this nature may always be expected to give rise to difficulties. Junior counsel for the first, fifth and seventh defendants supported the application to vacate the hearing date and I allowed him to make fairly detailed submissions on this question, which he submitted he wanted to make, in the light of the material before the court in this motion by the second defendant. Counsel for the third and sixth defendants and the solicitor for the e1ghth and ninth defendants took the same view on the question of the vacation of a hearing date as they had taken on 18 April 1983 in relation to the motion then under consideration. No defendants other than the second defendant sought to make any submissions upon the orders sought in what I have called (a) in this motion. Both counsel for the second defendant and senior counsel for the Trade Practices Commission asked that I make an order for costs upon a solicitor and client basis. No defendant other than the second defendant sought any order for costs in this motion. Because I understand an appeal has been lodged against my judgment of 18 April 1983, I reserved the question of costs in the motion by the first, fifth and seventh defendants and I think it is appropriate to do so in this motion. However, unless the view which I have expressed on the question of the requirement in relation to discovery proves wrong, I propose to order that the second defendant, Brambles Holdings Limited, pay the costs of the Trade Practices Commission in this motion but not on a solicitor and client basis. The orders I make therefore are to refuse to make any of the orders sought in the notice of motion and to reserve the question of costs. I think that concludes all the matters that are presently before me. | I certify that this and the dzven C 7) ' preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Mane 1 MOS sociate