CATCHWORES Practice and procedure - postponement of trial - failing of supplementary affidavit of discovery six weeks before hearing of complex trial due to commence - 106,000 additional vages of documents disclosed - majority of documents coming into party's possession after original discovery completed - obligation of party to make further discovery - impact of disclosure of so many gocuments upon other parties' readiness for trial - claims for privilege from inspection of some dccuments cn grounds of legal professional privilege and without prejudice nature of documents - High Court Rules, Crder 32, Rules 9, 18 and 2C(2)(a@). TNT MANAGEMENT PTY. LIMITED and Cthers v. TRADE PRACTICES COMMISSION and Others No. N.S.W. G79 of 1983 and BRAMBLES BOLDINGS LIMITED v. TRADE PRACTICES CCOMMISSICN and Others No. N.S.W. G&S cf 19835 Coram: Smithers, McGregor and Shepvard JJ. Sydney 8 gune 1963 ee ee oe eee ee te IN THE FEDERAL COURT OF AUSTRALIA " NEW SCUTH WALES DISTRICT REGISTRY No. G 79 cf 1983 GENERAL DIVISION TNT MANAGEMENT PTY. LIMITED and Cthers Appellants and TRADE PRACTICES CCMMISSICN anda Others Respondents GREER JUDGES MAKING ORDER : Smithers, McGregcr and Sheppard Jd. DATE OF ORDER : 8 Sune 1983 WHERE MADE : Sydney THE CCURT CRCERS THAT the Cate for the hearing of the trial of matter No. G44 of 1975 between the Trade Practices Commissicn and i TNT Management Pty. Limited and other parties be postponed from 17 May, i983, to 15 Gune 1963, and that the respondent tc the appeal the Trade Practices Commission pay the arpellants' costs of the appeal. Ctherwise the Court makes no crder upon cthe appeal. IN THE FECERAL COURT CF AUSTRALIA NEW _SCUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G 89 cf 1983 ww eee BRAMBLES HOLDINGS LIMITED Appeilant anc TRADE PRACTICES CCMMISSION and Cthers Respondents CRDER JUDGES MAKING ORDER Smithers, DATE CF CRDER : 8 WHERE MADE Sydney THE COURT CRDERS THAT: McGregor and Sheppard cd. csune 1983 1. The appeal be allowed. 2. The order of the Court made on 27 April, 1983 that the hearing of the trial of matter No. G66 of 1978 between Trade Practices Commissicn enc Brambles foldings Limited and other parties prceceed for hearing on i7 May, 1983, be set aside. 3. In lieu thereof the nearing of such matter proceed on 15 gune, 1963. 4, Ctherwise the motices o£ motion frled by Srambles Holdings Limitecé cn 19 Aprii, 1963, in matter NO. G44 ci 1978 be dismissed. 5. The acpellant pay <czwo-thirds cr the cests ci the respondent the Trad Practices Commissicrn. ——— ae ee ee i ee eee em Me ee ee te nnn IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY -we ee GENERAL DIVISION Coram: Smithers, McGrecor & Sheppard JJ. Date: 8 June, 1963 REASONS FOR JUDGMENT Smithers J.- In this appeai, Tt have nad reading the reasons for judgment prepared other members of this Court. I aacree expressed therein concerning the vacaticn of of 17 May 1993 and tre substitution *»*y No. G.79 of 1993 TNT MANAGEMENT PTY LIMITED, ANSETT TRANSPORT INDUSTRIES TOPERATIONS, PTY LIMITED, ASSOCIATED STEAMSHIPS PTY fApvellants) TRADE PRACTICES COMMISSICN (Pirst Respondent) BRAMBLES HOLDINGS LIMITED, MAYNE WICKLESS LIMITED, YOUNGS TRANSPORT PTY LIMITED, EXPRESS __ FREIGHT PTY LiMITED, IPEC HOLDINGS LIMITED, UNTERSTATE PARCEL EXPRESS <C. PTY LIMITED (Other Resvondents) e advantade of ov gach of the witr the ~rsasons she -earing Jate consent of the 2. other members of this Court. I agree with those reasons and ¥ with the orders which are proposed therein. e Smithers J.. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Coram: Smithers, Date: 3 June 1983 McGregor & Sheppard Ju. REASCNS FOR JUDGMENT In this appeal, [I reading the reasons for judgment yKave had prepared No. G89 of 1983 BRAMBLES HOLDINGS LIMITED (Appellant) TRADE PRACTICES (First Respondent) TNT MANAGEMENT PTY. TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED, ASSOCIATED STEAMSHIPS PTY. LIMITED, MAYNE NICKLESS LIMITED, YOUNGS TRANSPORT PTY. LIMITED, EXPRESS FREIGHT >TY. LIMITED, IPEC HOLDINGS LIMITED INTERSTATE PARCEL EXPRESS CO. PTY. LIMITS (Other Respondents) ao 2. Appellants and the Respondents of 15 June 1983 as the date on which the hearing of these proceedings 1s to commence. On the question of costs I would make the order proposed bv Sheppard J.. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION No. G 79 of 1983 TNT MANAGEMENT PTY. LIMITED and Cthers Appellants and TRADE PRACTICES COMMISSION end Cthers Respondents No. G89 of 1983 BRAMBLES HOLCINGS LIMITED Appellant and TRADE PRACTICES CCMMISSION and Cthers Respondents Coram: Smithers, McGregcer, Sheppard JJ. Date: 8 June 1983 REASCNS FOR CECISION McGregor J. These two auntericcutory appeals were heard consecutively on 4, 5 and 6 May 1983. The appellants in the first appeal are TNT Management Pty. Limited, Ansett Transpcort Industries (Cperations) Pty. Limited and Asscclated Steamships Pty. Limited (hereinafter referred to for convenzence as "TNT"). The appellant in the second appeal is Bramrles holdings iimited ("Brambies"). The four aprellants are defendants in & pending proceeding in which tne first respondent in each apvea., the Trade Practices Commission ("the Commission"), seeks to recover penalties and an order for an injunction against the appellants and certain other companies for oreaches of some of the provisions of Part 1V of the Trade Practices Act 1974 (the Act). The learned judge at first instance had been asked Ly TNT, inter alia, to vacate the hearing date, viz. 17 May 1983. By the appellant, Brambles, his Honour was asked to crder that the action against 1t be dismissed, the hearing date of 17 May 1983 vacated and that the respondent be ordered to file a further and better affidavit of discovery in relation tc its claim for legal professional privilege. Orders as to costs were also sought. The judge at first instance refused these orders. Against these orders this appeal is breught. The action has a long history. It was commenced 1n 1976. As might be expected in 4a case of this «ind, there have been many interlocutcry proceedings and quite separate from the present proceedings, appeals to this court, and even to the high Court. Such an action by commcn consent would ce, and has been, one difficult of management with quite ceviously a large ocdy of evidence expectec to be calied. Tweive weeks had been estimated for 1ts hearing which was to have commenced on 17 way 1963. Discovery was sought at an early stage cn pehalt of the defendant TNT; but 1% 1s commor ground that tne abp.ication made by notice served in accordance witna Crder 32, Rule 3 of the Yigh ee tN ne ee et een en -- - - BS Court Rules was taken to have been sent on behalf of all defendants to the respondent. The form cf the notice being No. 30 un the First Schedule to the said Rules required the respondent, within fourteen days, to answer on affidavit stating documents which "are or have been in your possession or power" relating to the matters in dispute; and what it knew as to the custcdy of such as "have been but no longer are" in that possession. In answer to that notice on behalf of the respondent an affidavit dated 27 January 1981 was sworn, the deponent of which was Wynne Patricia Hannan. Subsequently, later affidavits by the same deponent were sworn viz. 8 May, 27 May and 11 Gune a4ll 1981 and one py Graham Walker on 13 April 1981. Events immediately relevant to this appeal began on 3l March 1983. On that day the then Senior counsel for TNT sought that the date already fixed in December 1982 for hearing viz. 17 May 1983, be vacated. His reason for so applying was that he himself was briefed in other lengthy litigaticn. It appeared tnat litigation would preclude his appearance con 17 May 1983; that his client would not be aple to engage approrriate senior counsel who ccuid familiarise himself with the brief in the time available. Cther parties indicated various attitudes to this application which, in one sense, was made because cf the difficulties in which TNT found itself. However, senior counsel then appearing for the respondent did mentron that on 5 April 1983 there would be filed a further affidavit of discovery on behalf of the respondent though not conceding that tc be a necessary course. He did not mention its length or refer to the documents to be discovered. It was filed. Copy of this affidavit was served on 6 April 1983. It had been sworn on 31 March 1983. By it there were discovered 10,000 pages of material encloseé in 17 volumes. On 12 April 1983, a Notice Of Motion was taken cut seeking, inter alia, a vacation of the hearing date. It was heard on 18 April 1983. The orders sought in it were refused. On 27 April 1983 his Honour orally delivered Reasons for his decision. The appeal by TNT was argued in part befcre us. The perties to it have resolved their dispute by agreeing to postpone the hearing date to the 15 June 1983. They have asked this cceurt to resolve a consequential matter on which they are unable to agree, viz. what is the appropriate order for costs of the appeal. In the appeal by Bramples, ccunsel has first argued that the action against his client should ce strack ovt. Ee refers to the High Court Rules (applying oecause cf the time cf commencement cf the action) Crder 32 ""Discevery and Inspection" and Rule ZO headed "Non compiiance with erder fer discovery or inspection". Supo-Rule (2)(a) enacles a court te dismiss an action for "want of prosecution" where e.g. a party has failed to . give discovery or inspection of doctments. He cited Birkett v.- James (1978) A.C. 297 at p.31& per Lord Dipleck as setting the principles on which a court might act in so doing, viz. - "The power should be exercised cnly where the court is satisfied either (1) that the default has been intentional and contumelicus, e.g. discbedience tc &@ peremptory order of the court cr conduct amounting to an abuse ci the process of the court; cr (2) (a) that there has been incrdinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise te a substantial risk that it 1S not possibie *o have a fair trial of the issues in the action er is such as 1s likely to cause or tc have caused sericus prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and 4 third party." He has referred us to the dates on some of the dccuments newly discovered, as giving rise to the inference that they were in the possession cf the respondent even before the affidavit of 27 January i$81 was sworn; when they did come into the respondent's possession has not peen Gisclosed. The want of prosecution on which he relies 1s the failure to discover or make available these documents earlier when the respondent had, in effect, already had oppertunity tc do so yet allcwed the parties, including Brambles, to be under 4 misapprehersi:ron as to what documents were available to the respondent for use in its case against Brambles. His arguments are summarised in writténm sucmissions. it 2s not necessary cto refer to ther 1n more cetali. In what follows we accept that the respondent thought it necessary to draw the parties' attention to the existence of the ra relevant documents. Senior counsel for the respondent submitted that there was no obligation on his client to have filed the affidavit dated 31 March 1983; or te have made available the documents to which 1t referred; that the Netice for DLisccvery was answered by the affidavits filed in response to it; that 1t did not impose a continuing obligation except as to documents overlooked when the affidavit or affidavits were sworn. He referred to the words in the form "are or have been" as marking out the obligation on the receiver of such a Notice; that once answered the Notice was exhausted: a party seeking further discovery was not entitled to c serve without more a further Notice. He referred +o Crder 32 Rule 18. He contended that the affidavits sworn should be accepted as truthfully making the statements in them; that it C ought not be inferred that the GcocumertsS mentloned in the affidavit cf 21 March 1963 or any of them were in the power or possession of nis client at any time before eny of tne earlier affidavits were sworn. He submitted there was no basis for striking out the action; further, tnat upren a cconsiceration of the dociments to which the affidavit referred 1t was Clear that there was nothing of any particular significance warranting such consideration és cught hold up the hea al wave} @ mn "ie! @O Oo B Mh t! te het ig= t on o date had peen by agreement rostporned until 15 June 1982. Cn 6 May 1983 in an oral judgment, we rejected the submissions that the action against Brambles should be struck out stating then that we would deliver reasons for this decision later. What follows are my reasons for arriving at this decision. I consider Order 32 Rule 9 contemplates a Giscovery in response to a Notice; that once an appropriate affidavit is filed which, in terms, complies with it, there 1s no continuing obligation except in respect of documents which should have been referred to in it. Further, that the scheme of Crder 32 indicates that a party seeking further or other crders of discovery may have recourse to Rule 13, 14 and 18; ain the case of failure tc gave discovery as required by the Rules, Rule 2¢, (2)(a) may be invoked. The respondent may have been unwise in failing to refer to, or te bring to the attention of, all parties the dccuments which have been put forward as relevant in the affidévit sworn on 31 March 1983, but, even then, not served until 6 April i963. In litigation of this complexity, perties, particularly a prosecuting party, aware cf the imminence cf the hearing, shculd avoic placing another litigant 1n a position wnere, after years of walting, commencement might have tc be deferred. whether or net there was an oplicgaticn to fzle the further arfidavit of 31 March 1982 1S unnecessary *c decide since, in fact, a filed and decuments to which it refers preduced fer inspection . except those the subject of a claim for privilege, to which I refer later. Cases which refer te this subject are collected in "Australian High Court and Federal Fractice" CCH Australia Limited p.61,183. I do not accept the contenticn that there has been, as 1s set out in Birkett v. James (supra) ""cefault.....that was intentional and contumelious" or amounting to an "abuse of the process of the court" or that there has been delay which 1s "...,lnoréinate or inexcusable" cr that there is "....sucsstantial risk that it 1s net possible to have a fair trial of the issues in the action...." or to cause "....serlous prejudice...." to the appellant. Our decision was reserved upon a further matter upon which counsel for Brambles offered arguments, viz. the question of discovery and privilege. He submitted that the learned triai Judge should have acceded to an application for an crder for further and better discovery basecé upon a contention that the affidavit of 31 March 1963 was an affidavit which made a ciaim to legal and professional privilege which was "bad". he conceded that in the court below tne trial judge correctly treated his client as ovelnce a party in the same positicn as 1f ne nad eariier given a Notice for Liscovery, tnis naving peen dene by TNT and thereafter the affidavit cr 27 January L935. being given following a Notice for Lisceovery. he referred to a further Notice filed on behalf of his client set out in an affidavit of 3 . May 1983 of CLermct James Ryan which he sought to read. The Notice, said to have been forwardeG on that date (1.e. the day before this appeal was listed) pursuant to H2gh Court Rules 0.32 R.14, cmitting formal parts, reads - "NOTICE PURSUANT TC 0.32 R14. YOU ARE REQUIRED TO PRODUCE THE DCCUMENTS LISTED IN THE SCHEDULE HERETO FCR INSPECTION OF TEE SECOND DEFENDANT OR ITS SOLICITORS AND TC PERMIT THE SECCNE UCEFENDANT OR ITS SOLICITCRS TO TAKE COPIES OF ALL SUCH DOCUMENTS. eeere THE SCHEDULE. THE DOCUMENTS CESCRIBEL IN SCHEDULE 1 OF THE AFFIDAVIT OF WYNNE PATRICIA HANNON SWORN ON 31 MARCH 1963." Crder 32 R.14 reads - "Notice for inspection of documents (1) A party may, at any time, by notice in writing, give notice tec another party in whose writ, pleadings, particulars or affidavits reference is made to a dceciment, to proauce that dcctment for the inspecticn of the party giving the notice, or of his solicitor, anc tc permit either of them to take copies of the dccument. (2) fEffect of non-ccmpliancel where a party does not comply witn a notice given under the last preceeding sub-rule, he may not afterwards put a dociment referred to in the notice in evidence on nis behalf in the proceedings except in accordance with the next succeeding sub-rule. (3) [Excuse from ccmrilance, wrere tne party whe has not complied with the notice satisfies the Court cr a Justice that the dccument relates cnliy to his own title, he 10. being a defendant in the preceeding, or that he had some other cause or excuse which the . Court or Justice deems sufficient for not complying with the notice, the Court or Justice may allow the dceument to be put in evidence on such terms as to costs and otherwise as the Court or Justice thinks fit." It was said that the purpose of serving the Notice was, 1n effect, tc meet any argument that the affidavit of 31 March 1983 was not an Affidavit of Discovery, 1-.e. as I understand the argument, by treating it as such and then applying to :t the procedures which 0.32 provides for inspection of documents in e.g. "affidavits". The First Schedule in the affidavit of 31 March 1983 uncluded Voiumes Nos. 34-51 and Volumes A, B, C, LT and E; privilege is claimed in respect of the lettered volumes. Counsel submitted that the court was se1zed with the issue of privilege anyway. He argued there was nothing tO prevent a party glving a subsequent Notice should he have cause to believe the affidavit in satisfaction of the first notice does not disclose all the documents. He referred to what apparently was antended as a claim for legal professional privilege in respect of documents in Volumes A to C referred to in the affidavit of 31 March 1983. He submitted that the affidavit made, in respect of privilege a claim "unknown *«o the law"; so there should be an order for further and better discovery; or for the production of the documents. He referred te Grant v. Lowns (i976) 135 C.L.R. 674 at p.68& and National Emplovers' Mutual Ceneral Insurance Association Ltd. v. waind (1977) i¢l C.L.R. 646 eat 0.656. Se submitted the test was, what 1s the purrese fer tne creation cf ros these documents; if documents were crought nto existence sclely ee cae ee ee ee ee eee for use in legal proceedings they would be privileged. He , submitted that the effect of this decision was to aprogate previous classes of legal professional privilege including e.g. what might have attached te "without prejudice letters". As to the documents referred to in Volumes A to C, he submitted that they were a class of documents which, if disccvery attached, would be @Giscoverable; so, whether there was a legal duty to @iscover them or not, his client was entitled to an order from the court in respect of them. He pointed out that though the evidence in Mr. Ryan's affidavit was as to service of a Notice, ut was given before the hearing and judgment of the trial judge who rejected the evidence about it. However, a Notice for Discovery apparently dated 19 April 1983 was filed. The wording of the affidavit founding the claim for privilege was, he submitted inadequate; the description of the documents was inconsistent with the claim. Re referred to wocds v. Martins Bank Ltd. (1959) 1 Q.B. 55 at p.60; Riddick v. Thames Eoard Mills (1977) @.B. 681 at p.&93. Senior ccunsel for the respndent objvected to the claim of privilege being examined in these present preceedings and to the introduction of any fresh evidence offerec in suppert cf arguments in the appeal; zn particular to the intreducticn cf Mr. Ryan's affidavit. ke submitted that withcut é@ fresh hotice or a fresh order for discovery, there was ne csligaticon te give discovery; this court shculd not consicer the SGuesticn cf 12. privilege. However, he submitted that even 1f, in the absence of ecbligation to give discovery, the filing of the list of doctments referred to in the affidavit created an obligation to give discovery, then, in respect of the documents for which privilege was claimed, his client would not object to this court examining them. He submitted the grounds of appeal sought an order only that the plaintiff file a further and better affidavit of discovery. He pointed out that the claim for inspection did not specify any particular documents in Vols. A to U; yet some were, as described, cbviously privileged, e.g. counsel's brief. His submissicn included that the claim of privilege had been correctly formulated; that, on the face of the description ef the dectments, the court would conclude they related solely to the litigaticn and were in the scope of legal professional privilege. Be submitted that, in respect of documents i1n Vol.A, the claim, as formulated in the affidavit of 31 March i96 Cee para.7, and in the affidavit of 19 April 1983 para.3, was sufficient to support privilege; that the description of the documents indicates they were sclely related to the litigétion. As to Vol.B, he referred to paras.d3 and 9 respectively of the same affidavits; that the sworn affidavit of Miss Hannan should be accepted in preference to asserticn o= counsel. As to Vol.Cc, he relied on para.9; that, "without prejudice" discussions between parties are the subject cf a separate niead of privilege; as to the dociment "Certain nandwritten icotes of Mr. Bannerman", he referred to Halsbury s Laws or England dthn ed. '01.13 varas.79-8l and 94; Phicson on Evidence 13th ed. p.204, - Se para.15-18. 13. As to Vol.D, he relied on para.lO of the affidavit of 31 March 1983; the description of the dcecuments was not inconsistent with the claim. As to Vol.E, he referred tc para.ll of the affidavit of 31 March 1983 and para.7 of the affidavit of 19 April 1983; that there was an inescapable inference that they were brought into existence solely for the purpose of use in these proceedings. I have not attempted to refer to all of the arguments of counsel for the parties. In my opinion unless the procedures referred tc in C.32 are properly invoked, there is no obligation on the respondent to update discovery, as =I have said, except by supplementary affidavit in the case of documents which were within the description "are or have been" in its possession befcre 27 January 1981. The words "are cr have been" were derived, no @cubt, from Crder XXXl Rule 12 of the Rules cf the Supreme Court which were in the Schedule to the Judicature Act 1875. Cur = \ attention has been drawn to James v. Plummer (1888) 25 L.S.n.C. 1c7 (James) which is re th er Ny ec tc in the pr utneritative work Bray's Cigest crt the Law of Discevery zinc ed. puolished in i9l1c in the notes there cn Order XXX1 Rule Lz. It supvtorts that dccuments coming into a party's fossession after the maxing cf first affidavit of discovery neéd not be scneculec. From the ne at Nat a aN a ee ee ne ~ ee appellant's viewpoint it was a stronger case for requiring updating of the discovery affidavit than is the instant case; since the second affidavit there was sought and ordered after an application to the court following omission to refer to dccuments an a first affidavit. The further arfidavit limited the discovery to the date of the original affidavit. Grantham J. in Chambers refused to crder the plaintiffs tc make a further and better affidavit. On appeal it was urged that the plaintiff must search for, find and give discovery of decuments up to date. But the court said that 'to require a further affidavit up to date would be "to cast a burden of intolerable weight upon litigants and add encrmously to the cost of litigation". vames was not cited in argument nor referred to in any edition of Halsbury's Laws of England. It was referred to in the Annual Practice 1889 lith ed. at p.526 and was last quceted there in its 8Cth edition 1963 at p.716. The reason for its eventual disappearance from that work 1s to be inferred from what 1s said in the preface to the lith edition thereof - +..the first necessity cf a book cf practice is that 1t should not grow too unwieldy for the hand or toc heavy for the bag, anc to secure this 1t 18S necessary that the old matter should give place, to a greater exte than it has hitherto dcne, to *he new." + nt Cases appearing 1n Haisbury's itaws of England 42£hn ed. Vol.13 para.46é, and referreG to in argument, viz. Mitchell v. Carley Main Colliery Co. (1884) 1 Cab & El 215 and Myers v. Elman (1940) A.C. 282 deal with a vcroblem different from the cne voefore this court and have no application. 2 do ret accept that the 15. appellant may rely on its acticn on 3 May 1983, the day before the appeal commenced, to strengthen its argument. But since what 1s proferred by the respondent i.e. the document (affidavit) of 31 March 1983, 1s at least in form, an affidavit of discovery, I will offer my own comments on the claim of privilege as formulateé. I do not agree that there is any special duty as to discovery on the respondent, if it is the Crown. Ner do I understand Grant v. Downs (supra) to attempt exhaustively to state all the categories of legal professional privilege. I am cf the view that so long as the sense of the "sole purpose" test as set out in Grant v. Downs (supra) at p.688 1s put forward in a claim for the relevant privilege, there need be no literal adherence to a form cf words. The claim made in the affidavits referred to, together with descriptions of the documents listed, 1s sufficient to satisfy that test as to Vols.A, B, C, G and E, particularly as that test is reiterated and, to some extent, perhaps, reformulated in the National Employers' Mutual General Insurance Associaticn Ltd. v. haind (supra) per Mascn S. at p.656. I consider it relevant to note that ian that cése, as in Grant v. CLowns (supra), there was a Positive indication cf possible at least Guality of purpose in respect of documents the sunject of Cispute: 3n waind's case (supra) they might have been used for consideraticn by an insurer Defore litigation, i.e. to cbtain infcrmation to inform itself as to whether it should pay compensaticn or dispute liapility; and in Grant v. Cowns (supra) the documents furnished information as — - - er ry - - wee eee ee me Nn a Ree ee N 16. to breaches of discipline and faults in security, subjects on which the defendant might well seek and record information quite apart from using that unformation in its litigation. Accordingly, the use of such a word as "sole" cr a statement which asserted otherwise the purpose for which a dociuméent came into existence was called for to sustain the privilege. But in the case before us, except in the supposition of a counsel for the appellant, there 1s no basis for inferring some other purpose. I do not overlook that there may be other bases on which documents can be privileged which may be able separately to be established, e.g. without prejudice ccommunications - see Whiffen v. Hartwright (1648) 11 Beav.111 50 E.R. 759; Rabin v. Mendoza & Co. (1954) 1 A.E.R. 247; Phipson (supra) p.504 (para. 15-18 p.374 para.19-1C); The Supreme Court Practice 1982 (Centenary Ed:ticn) p.459. However, if they are otherwise within the "sole purpose" test, the efficacy of e.g. the "without prejudice" test, need net be crucial. In my cpinion, the affidavit of 31 March 1983 was ~] sufficient to maintain a claim for privilege frem inspection of the decuments in Volumes A to E. The supmissions by counsei for Brambles are rejected. Brambles appeal succeeds, perforce, in that the date for the hearing of the matter involving TNT MANAGEMENT PTY. LIMITED, ANSETT TRANSPORT INDUSTRIES (OPERATIONS ) PTY. LIMITED and ASSCCIATED STEAMSHIPS PTY. LIMITED 1s already, by agreement, vacated. It 1s to come on for hearing on 15 June 1983. These Matters are obviously to be heard together. Accordingly, I would propose that the hearing date in the case concerning Erambles be vacated and that it too should be fixed for 15 June 1963. In all other respects the appeal 1s dismissed. The appellant, Erambles, I would propose should pay two thirds of the respondent's costs of the appeal. In the appeal of TNT MANAGEMENT PTY. LIMITED, ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LIMITED and ASSCCIATED STEAMSHIPS PTY. LIMITED this court was asked to decide the only outstanding question 1.e. as to costs. The order I would propose 1s that each party pay its cwn costs of tne appeal. \ certify that chis amd the Six+ee-y preced ng pages are a true copy of the Reasons for Judgrent herein of tis Honour Mr. Justice McGregor of of fev 0 Associate Dasa: € lane, i 83 IN_THE FEDERAL COURT CF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G 79 of 1983 TNT MANAGEMENT PTY. LIMITED and Others Appellants and TRADE PRACTICES COMMISSICN and Otners Respondents No. G 89 of 1983 BRAMBLES EOLDINGS LIMITED Appellant and TRADE PRACTICES COMMISSION and Others Respondents CORAM: Smithers, McGregor anc Sheppare Jv SHEPPARD J. Venn 19 E3 REASONS FCR JUDGMENT These two interlocutory appeals were neard consecut— ively on 4, 5 anc 6 May last. The appellants in tne first appeal are TNT Management Pty. Limivea, ansett Transport Industries (Operations) Pty. Limictec and Associatec Steamships Pty, Limived (nereinafter referred to for convenience as "TNT"), The appellant in the second appeal 2s Brambles Holdings Limited ("Brambies"). The four appellants are defencants in a penaing proceed- ing in which the first respondent 1n eacn appeal, the Trade Practices Commission ("the Commission") seeks to recover penaities anda an order for an injunction against the appellants and certain other companies Tor breaches of some of the provisions of Part IV of the Trade Practices Act i974. The proceedings were instituted in 1978 anc nave 4a protracted history. The rules whicn apply to them ere not the present rules of tne Court put tne rules of the High Court of Australia. The hearing of the proceedings nad teen fixed to commence oefore a judge of tnzs Court on 17 May, 1983. In juagments deliverea on 18 and 27 April last the learned juage dismissed apolicaticons brougnt by tne four appellants in which tney sought the vacation of that date. Particularly in the Bramoles application, cudgment in whicn was deliiverea on 27 April, there arose other questions. One of those was wnetner or not the proceedings agacnst Brambles snoula be zismissed because of default on the part of tne Commission in naking dis- covery, Such ce*ault was saia tc be prolongea and znexcuse- able and to involve conduct on <ne part of tne Commisszon wnich was intentional. and contumeliious,. The Bramoles bh appeal also raised other guestions more Zirectiy connected a with the Commission's obligation to make discover and afford inspection of discovered documents. No other defendants in the principal proceedings have sought to be heard in the appeals, There are five of them. They take a neutral attitude and have sub- mitted to such order as the Court sees rit to make. The parties in tne INT appeal, during the course of the nearing, reachea agreement on what the outcome should be. They agreed that there should, subject %o our approval, ana that of the trial judge, be a defer- ment of the nearing of the proceedings for arproximately one month. Subject to sucn approval it was agreed that the trial commence on 15 June next rather vhan 17 May. Unfortunately the parties ~o the TINT appeal were unacle to agree on costs and nave asked us to decide that guestion. There was no agreement as to the outcome of vhe Brambles appeal. " At the conclusion of the nearing of cotn appeal tne Court said that 1t unanimously took tne view 7 ity) ot r. Brambles nad not mace out 2 case wnicn would call for the dismissal of tne proceedings against 17. The Zourt further sald that tne hearzng snculd commence on 15 gune next. Its decisisn on stner .utstancing » questions, including the quest20n of costs in the TNT appeal, was reserved. What follows are my reasons for joining in tne aecisions already announced and my proposals, and the reasons therefor, Zor tne determznation of the otner questions raised by the appeals. In order that the matters 1n ccntest may properly be understood it is necessary to recount some of the recent history of the matter. On 31 Maren last the Learned primary judge dealt with an application made on behalf of TNT seeking tne vacation of tne nearing aate fixed for 17 May. The grouna of that application was that the then senior counsel fcr TNT woula te unavailaole for the hearing because of another and unavoidable commit- ment. He had been in tne case for a leng time and prejguaice, so 1% was said, would be causec TNT :f another senior counsel had to be retained at so late a stage. His Honour refused the applicaticn. In the course cf tne arscuss1ion wnicn transpired before nis donour reference was nace tc the Tact that it had been foreshadowed in corresronaence frem tne Commission's solicitor that tae Tommission mint or would be nexing furtner discovery of iccuments. C.asccevery - ana inspection nad icng since taken place. Arfraavizs cf ziscovery nad deen sw nd Zilea on sehallt oF tne fe) rn 1S) ay Commission in January, April, May and June of 1981. The affidavits were sworn by Wynne Patricia Hannon. - At the hearing which occurred on 31 March Mr, Cole, @.C., naving referred to the questicn of further discovery, said that his instructing soizcitor was not aple to say what, if any, effect that woulda have. de continued, "We do not xnow at <Tnls point of time wnat the nature of the documents which are to be discovered is ... We cdo not know its extent or whether that in turn will vroduce any problems". On ctehalf of the Commission Mr. Priestley, &.C., its then senior counsel, sara, "Aithough the letter (a refer- ence tc a letter from the Commission's soiicitor) nentions a further affidavit of alscovery, the question whether an affidavit should be sworn ana filed or whether simply we woule make the letters availaole under sover of a letter +ee. aS a preferable course has not ceen finally resolved, «es. We woula not anticipate that there would ce any aiificulties of the «ina wnat woula cause any problems about the cate arising from these accuments". On 6 April, 1983, aZter che conclusion oF tae Easter nolidaay period, tnere was filed on tenalt of tne Commission a further affiaavit oF a:scavery, The aZlticavizt haa deen wi sworn on 31 March, 1983, tne day the application for vacation of the nearing date was neard, by the afore- said Wynne Patricia Hannon. The affidavit purported to be an a*fidaviz of further and better discovery. Appended to the affidavit was a schedule describing various documents. The scheaule comprised some 99 pages. In short it disclosed that there were 22 vol- umes of documents. Eignteen of these numceredc 34-51 comprised documents which were <to be made available for the inspection of the defendants to the proceedings. The volumes were numbered in thet way because the earlier documents which had oeen discovered and made avallable for inspectzon were contained in volumes numbered 1-33. Five volumes of aocuments lettered A - E anclusive were tne subject cf a claim for privilege from inspection. With cop1es of tne affidavit there was Gelivered to each defendant's solicitor a letter in which 1t was said that the affidavit was filed and served dy the Commission without anv admission by 10 tnat 1% was obliged by the rules of Court sc wo io. said tnat the documents aescribea in volumes 34-51 of the affidavit would ce availeole for inspeczion by appointment in the Sydney office cr tne Commission from 6 April, 1983, Zor two veeks. The Comrission was sald to be unable to provide racilities for the photo- copying of documents vy the defendants buz nad no oogection to the documents veiling removed for the purposes of copying provided that an officer of the Commission accompanied the documents at all times. Supsequently tne defendants were able 'tc ceduce that the further discovery involved the production for tneir inspection of 10,000 pages of documents. The difficulties which were involved in ootaining copies are well described in the affidavit of Mr. J.R. King who 1s the solicitor for the appellants =n the TNT appeal. Suffice to say that in the case of those appellants tne completion of the copying process had only occurred about tne ime the nearing of tnese appeals commenced. Part of "the problem was tnat only one officer from tne Commission was made avazlable to supervise the copving process so tnat ne could not ceontinuousiy oe avallable at the premises of any one aefendant. It snould ce sara that upon vhe basis of wnat the learmed primary Juage was tola in April last, te mzgnt nave concluaed with every gustification that the copying task woulc aave been com=- 'do ra (D tea mucn earlier tnan it im fact vas. ve nave, therefore, che oenefit of nindsight in tnis respect. " It should also be said that the evidence in tne Brambles appeal does not reveal tnat Brambles itself had as much difficulty as the appellants in the TNT appeal in obtaining copies of the documents. It is difficult for a court to make an accurate assessment of the imoact upon the appellants and their legal representatives of the filing of Miss Hannon's further affidavit of aiscovery. A consideration of tne aescriptions of the documents in the schedule to 1% mignt reasonably have led tnem to think that cop1les of some of the aocuments were already in their possession and that others might not be greatly significant for the outcome of the proceedings. But they could not ve sure and, on any view, Ttnere remained a vast quantity of documents which had not previousiy been produced and wnich mignt be of substantial importance. Certainly no counsel or solicitor could ac otherwise than g-ve care*ul con- sideration to the decuments anda tne place tney mignt have in the case. In tnis resvect copying was only che first step. The coilaticn of tne documents, their integration with other documents e2ireacy cela, the obtaining of views on tne documents from employees cf the companies concerned (ard vernars from experts as well) 5. and their ultimate appreciation by the legal repres- entatives were later ana more fundamental steps which the Commission's action nad made necessary. From 6 April to 17 May 1s a period of a little less than six weeks. The defendants were thus called upon to make a proper assessment or the documents at a time wnen they were in tneir last weeks of preparation for the hearing. The appellants in the TNT matter nad had to retain a new senior counsel. The Court has nis assurance, which I would accept unreservealy, that he and nis junior have for some weeks now oeen working con- tinuously and exclusively on this case ana that the aadi*tional documents produced as 2 result of the Commission's furtner discovery have imposea and wiil continue to impose a subdstantial extra burden on counsel, solicitors and clients alike. Indeed, in the case of the appellants in the TNT appeal the examination of the documents, because of tne copying difficulties earlier mentionec, had not deen able to te commenced even by the time tne nearing of tne appeals 'tegan, Underlying the Commission's sucmissions to tae Court was the suggestion tnat the ailZficulties of which the appellants complaznea was exaggeratea ana over- stated, This suggestion nay "ave sprung, tc a cegres, . from a feeling of frustration within the Commission's camp because of what 1t and its iegal advisers may regard as an overly technical approach to tne litigation by the defendants. As menticned earlier the case has a long history. That 18 decause of the sudstantial number of interlocutory acplications which have been made 1n relation to various procedural steps taken in it. The Commission has nad a measure of success in resisting tnese applications and nas been successful in some of the interlocutory appeals that have been taken by the defendants against the daecision of the primary gudge. Nevertheless tne fact remains that the filing of Miss Hannon's affidavit of 6 April, 1983, dia impose upon the defenaants tne sudstantial curden to which reference nas been made. The consequences of 1ts fiiing must be aeasit with as a separate nattver and in the light of factors relevant ana only relevant to the consequences of the production of sc nany documents, It 1S pernaps unnecessary to acc 'that the aefencants are not only not vound to accant tne Commission's guagment as 7o the significance cl tne documents as 4 guide to the importance <c oe stvacnec to Them cy tnem; their legal advisers have 2 positive 25ligaction to tne defendants to apply their own minds to the docu- ments and the significance of them and to make their own judgment about the degree of importance they have or nay have for tne outcome of the case. The next matters to be referred to are the judg- ments of tne learnea primary jucage. In his judgment delivered on 18 April last in woich he aism1ssed tne TNT applicaticn his Honour referred to nis dismissal of the application made on 31 March, 1983, for the vacation of the date for nearing. His Honour wert on to deal witn the vroolem created by tne filizng of Miss Hannon's azfidavit of 351 Maren, 1983. He referred to tne relevant High Court rule in relatzion to discovery and reachea the conclusion that tnere was no obligation on the part of the Commiss:on to make further discovery in respect of anv cocument not in 1%s possession or power at the time it dischargec its original obligation to néke discovery in i381. He con- sidered tnat all cut very Tew of tne cocuments referrea to in tne scnedule tc Miss Hannon's altlficavit iad come anto tne Commission's possession more recentivy than 1981. There 1s no stateresnt wich = can fina in Miss dannon's afficavit wnicn 15 explicit m tnLs point cut nis Honour's assumption and, in any event, many of the documents bear dates later tnan 1981 with the result that they did not come into existence until after that year and thus coula not have been in The Commission's possession or power at the relevant time. His Honour found that no nore tnan 14 docu- ments were in the Commission's possession or power at the time it originaliy mace discovery ana said that these were the only documents wnich 1t was obliged to iscover. There was no obligation in relation to tne remainder. His Honour said: "T see no reason why any documents, other than those wnich shoulda nave been discovered initially, should have been discoverec in April or indeed at any time prior to tnav. There is evidence that the documents referred to in the supplementary affidavit number vernaps 9,000 or 10,C00 vages, and an effort is ceing made by the applicants in this metion tc photocopy every vage and there nave deen some necnanical problems in going this. Apparently 'ne importance of this material nas not yet been assessea by the applicants. So far as I can see, the number of documents whicn fell witnin Order 12 Rule 9 at the tnrme th rst arf:davlt was sworn was no nore thar 5 to 14; and, indeea, if one tock she view tnat tne relevant aate was li June 1S61, tre numper of docu- ments wnich might nave seen avallacie at tnat time would still nave deen comparatively few. His Honour tren referrec to a statement oy senior counsei for the TMT ccempan:es tnat 115 clients woulca de vrecgudiced 1f the date were not vacated. His Honour went on to refer to the difficulties which arise when there has to de a cnange of counsel ana conciuded as follows: "It follows from what I nave said that there 1s only a very small number of documents which ought to have been discovered which have not been discoverea. I cannot see any reason why the matter should be further adjourned and I refuse to vacate tne date. I will adjourn the question of privilege to a later date. I can deal with 1% next Tuesday, a week from toaay. I have got to be in Melbourne for the rest of the week." The gudgment delivered by his Honour was delivered orally. Atter 1ts delivery cvhere ensued a discussion concerning the date upon wnich the case would commence. His Honour asked counsel what their atzitude woula te to postponing the hearing for a week. zn the ciscussion that ensued various alternatives were discussed. The discussion concluced with his Honour saving: "It follows from wnat = say taat there 1s only a very small number of documents wnich ougnt to nave been discovered wnicn have not deen discoverea. I cannot see any reason wny tne matter would be further adjcurned and I refuse to vacate the date." it seems appropriate tc sav at tnzs point "hat has Honour's reason for refusing tne aptlication was casea upon 21S vlew that tre Tommission's ocligaticn to discover nad been aiscnargea in 1981 and treat it was under no opligavion 7o make the further aLrscovery vnicn 1% 21a. What 1s not mentionea in his reasons is the circum- stance that whether there was any further obdiigation upon the Commission to maxe further discovery or not, its action in filing the affidavit of 31 March had tnrust upon the defendants in tne proceedings 2 further 10,000 pages of documents, all of whicn would require consideration and examination by the defendants and their legal advisers. That was the matter upon whicn the defendants seeking the vacation of tne date principaliy relied, To them <ne question of whether or not tne Commission was bound to make further discovery was not of prime importance. His Honour's judgment of 27 Aprzi, 1985, refusing the Brambies applications referrec to the view expressed in his earlier judgment that there was ne obligation resting upon the Commission <o maxe Zurtner discovery except in relatzon to a smail minority of tne cocuments. He was concernea to deal witn che sucmission of tounsel for OQ Brambles that the proceedings against 1% snoulda te dis- a. ongea an be missea or struck out upcn "tne ground of sro inexcusatle delay on <ne 'd art of tne Commission in taking und trat the Tommzs O r "a zon nad FY discavery and upon the uy sought vo avoid a fair c1lscovery, His Honour resected -~ FL IY. this submission anda also submissions seeking payment as between solicitor and client of costs thrown away, He rejected arguments for yet further and better discovery principally vecause of his view that as to most of the documents the Commission was not bound to make further discovery. As mentioned earlier the appeals were neard consecutively, the INT appeal being heard first. The only order which the appellants in <nat natter sougnt, apart from tne allowance of the appeal, was that tne date for hearing be vacated. The appeliant did not alternatively seek the fixing of a later hearing date nor any orders in reiation to carscovery or inspection of documents. Nor dia they seek that tne proceedings against them be dismissed. Counsel for the Commission, snortly after he commenced nis submissions,mace an open offer to agree tc the postponement of tne date for nearzng to 15 June next, subject to our aporoval ana that of tne trial judge, An adjournment was granved to enable coursel Zor tn appeliants tc consiaer tne offar. It was accepted cut no agreement was reached on tne cuestion oF ccests, The parties' agreement nas tne acproval soth of this Court and of the trial judges. It ooviatec cne need for the IS Court to make any order on the appeal itselrt, although, in order to deai with costs, tne Court coes realiy need to form a view of the relevant merits of the varties to the appeal. In this respect 1t should be mentionec that the High Court rules include a rule not found in the rules of this Court which more readily enables a question oF costs arising in *aese circumstances to te dealt with. It is Order 72 Rule 59 which pbrovides that when for any reason the further prosecution of a proceed- ing beccmes unnecessary, except for the purpose of ceter- mining oy wnom tne costs of the proceeaing snoula be paid, any party may apply to the Court to determine tnat question and tne Court may make such order as is just. Notwithsvanding the usefulness of the rule, i% is difficult to aeal witn an application for cesvs in cireum- stances such as tnis without coming to a conclusion, if enly 2n a summary way, as to what the iixely outzome of she appeal wouid have been hada 1t vreceedea, Having given the matter due consideration, I am cf spinion that, in the lignt of tre corcumstances earlier recounted, the appellants nave mace suv a clear c fo wn i) t i (e)yo ie] (¢) YY pu {D> ' Ft, [e) costs. In relation to the TNT appeal tne only orders which, in my view, are reguired are that the hearing date previously fixed for 17 May, 1983, be postponed to 15 June next, a decision we announced wnen the hearing concluded, and that the Commission pay tne applicants! costs of the appeal. It 1s next appropriate to give my reasons for the aecision not to acceae to the submission made on venair of Brambies that the proceedings against that ccmpany be dismissed or stayed on grounds associated with tne Commission's failure to make proper discovery, To a aegree there 1S invoived in this submission 2 cnallenge to his Honour's view that the Commission was not bound by any rule or direction of tne Court Yo make further discovery except of relevant aocuments in its possession or power at tne time affidavits cf aiscovery on 1ts cenal® were sworn in the first nalt of 19@l. it was the appellant's suomzssion that nis Honcur was wrong zn his conclusion; in the suomission of the Commission his Honour was correct. In oracer to come tc tnis cquesticn 1% 1s first necessary <2 refer co tne relevanz rules of the High Court. These are Rules 9 ara 13 of Ureer 32. Rule 9 is as follcws: "A parcvy may Serve a notice in accordance with the form numberec 70 in tne First Schneauie uoon anotner party co 2 proceeding requ2ring cin to nake ciscovery on cath of the cocuments wnich 2re cr nave oeen in his vossessicn or power, relating tc a latver in Ga? question in tne proceecin With Rule 9 should be considered Rules 10, 11 and 12 which provide for the obligations of a party upon whom a notice pursuant to Rule 9 has been served. Rule 18 provides: "(1) The Court or a Justice may - (a) on the application of a party to a proceeding at any time; and (b) whether or not an affidavit of documents has already been made or ordered, make an order requiring another party to state by affidavit -~ (c) whether a particular document or documents, or a Class or classes of documents, specitied or indicated in the application 1s or are, or has or have at any time been, in his possession, custody or power; and (d) 2f it or they 1s or are not then in his possession, custody or power, wnether and when he parted witn 1t or them and what has become of it or then. (2) The application shall be mage on an affidavit stating 1n the belief oF the deponent the party against wnom the application is made has, or has at some time had, in hls possession, custody or power the particular document or dcecuments, or tne class or classes of documents, specified or inaicated in the application, and that tney relate to a matter in question in the proceeding." As earlier mentioned nis Yonour's corclusion was based upon the words of Rule 9, particularly upon tne words, "of the documents wnicn are or nave been 1n nis Dossession or power", Notwithstanding shose werds 12 was counsel's sub- mission that there was a continuing obligation imposed on a party wno nad been served witn = notice under Sule 9 to make further discovery each time fresh documents relevant to the issues in the case came into that party's possession or power. The submission went so far as to suggest that this obligation extended to documents privileged from inspection with the result that a fresh affidavit would need to be sworn as documents such as briefs to counsel, solicitor and client correspondence and other documents prepared for or by a solicitor solely for the purposes of the case came into existence. The burden which would be imposed upon solicitors preparing a complex case for trial, if this were the requirement, 1s not difficult to imagine. A number of texts and authorities were referred to. The researches of counsel of texts and authorities here and in England did not reveal that any judge from either country was ever reported to have turned his mand to the question. However, since we reserved our decision, our attention has been drawn (not by counsel) to the decision of a Divisional Court an England in james v. Plummer (1888) 23 L.J. (N.C.) 107. The case 1s referred to in Bray's Dagest of the Law of Discovery (1904) at p.56. The judgment was delivered by Manisty J. The other member of the Court was Stephen J. James v. Plummer was an action commenced in i885. In August 1886 the plaintiff made an affidavit of documents. 19, In January 1888, on its being discovered upon inspection that certain documents referred to 1n letters had not been set out in the schedule, an order was obtained for a further and better affidavit. The affidavit set out the required documents but limited the discovery to the date of the original affidavit failed in August 1886. The question was whether or not the plaintiff was bound to set out and disclose all the documents whach might have come into his possession between August 1886 and March 1888, no dascovery of these having been given in the later affidavit. Manasty J. said (p.108): "Here 1s a general affidavit, good on the face of it, but om inspection something appears to have been left out. Then the order of January, 1888, 1s obtained, which being complied with cures the defect; but it 1s urged by the defen- dant that to comply properly with that order plaintiff must search for, find, and give discovery of documents up to date. To hold this to be so would be, in my opinion, to cast a burden of intolerable weight upon litigants, and add enormously to cost of izvigation." To a substantial degree each case must depend upon the rules of court which it is relevant to consider. But the case lends support to the view that the appellant's submission now under consideration is not soundly based. No other relevant authorities except some Canadian decisions, later to be mentztoned, have been founda. Halsbury 4th ed. vol.13,. para.46 says, "If after the list of documents has been served a document —~s discovered of 2, which the opposite party has a right to have dascovery, 1t 1s the duty of the party serving the list to give information to his opponent of the fact, either by supplementary list or by notice". Two authorities are cited for that proposition, namely Mitchell v. Darley Main Colliery Co. (1884) 1 Cab & El 215 and Myers v. Elman (1940) A.C. 282. These cases are authority for the proposition that a person who has made discovery pursuant to an obligation so to do is obliged to make further discovery of documents in his possession or power of which he becomes aware after the original discovery 1s made, But the cases are concerned, not with documents coming into his possession or power after discovery has been made, but with documents which were always in his possession or power and which were omivted from the original discovery through accident, oversight or deliberate non-disclosure. The cases do not shed any light on the present problem with the result that the statement 1n Halsbury ought not to be taken as relevant on the point at issue. There 1s nothing said about the problem in Bray on — Discovery (1885) nor in the Supreme Court Practic Lal (1982), nor in the practice books in use in relation to the High Court, the Supreme Courczs of New South Wales and Victoria, and this Court. The rules of the Supreme Court of Judicature in England and those of the other courts mentioned are not materially dafferent from those of the High Court whach here apply. The most recent of the Canadian decisions earlier referred to 18 Ontario Bean Producers! Marketing Board v. W. J. Thompson & Sons Limited (1982) 134 D.L.R.(3a) 108. That was a decision of three judges of a Divisional Court of the Ontario High Court of Justice. It was con- cerned with a Canadian procedure enabling the oral examination of a party in relation to documents in his possession or power. Southey J., who delivered the Judgment of the Court, thought that a party into whose hands new documents came should be able to be examined concerning them. In the course of his judgment he said: "The rules are silent on the point in issue, as they are in the case of production of documents, another form of discovery. Yet 2t 1s well-settled that a party who has been served with a notice to produce 15 under a continuing duty right up to the time of trial to dasclose to che opposite party documents coming into his possession or power, even where he acquares possession or power after fijing an affidavit of production. I can see no reason why the rule as to after-acquired information in oral discovery should be any different". (p-.111) tw th Choate on D:scovery in Canada (1977) confirms tn impression tnat one woula nave in any event that the motice to scroduce referred to in the judgment is tne equivalent of the notice for discovery vroviced for in Order 32 Rule 9 of the Hign Court Rules - see pr.171-172. In paragraph B2C4, 9.212, Choate deals with "newly dis- covered documents", The author says tnat although most provinces do not set a procedure for the f:ling of an a itional list wnere a document comes tc lignt or even i) a. A comes into deing after the original list or affidavit has been prepared, it nevertheless is the duty of the party glving the discovery to give full information to tne opnosivte party either by way of a supplementary affidavit or Surtner list. Two authorities are cited for this preposition. namely, Elman. As previously said, these do not Dear on tn proolem now under consideration In the light of tne azctum of Scutner J. in th that in dntarie at isast a carci wae nas Geen served vith a motice to oroduce is under 2 comtinuiing cuty <9 i1scover accuments com NZ LnvSo 215 Tess3asslon wr oouer 2tter the }? original discovery has been made. But enquiries made of judges who sit in the Equity Division and the Commercial List of the Supreme Court of New South Wales and of judges of this Court do not reveal that there is any settled practice. Thw problem does not seem to have been encountered. That 1s in line with what one would expect im the light of the absence of any mentzon of the proplem in any of the texts referred to or authorities cited therein. In the light of known practices 1mm a numper of the courts of Australia and the absence of treatment of the problem in any English or Australian practice oooks in general use, one could not say the same of the position here. it may be a matter for regret that this 1s not as yet the case and 1t 1s a matter which judges or masters can ~ ducting directions hearings in complex litigation might well pear in mmnd. But it seems clearly right to say that there 1s not in Australia at the present time in jurisdictions having rules simiar to those of tne High Court any such continuing obligation as 1s referred to by Southey J. In many cases there will be no problem because no relevant documents will come into existence after the original discovery except documents which may clearly be made the subject of a claim for privilege. In others, for example, claims involving continuing breaches of obligations or claims for damages which are ongoing, a party will produce the documents because he will need them for the purposes of his own case. Then there 15 always the right of the other party to make anapplication for rurther and better discovery pursuant to a provision such as Order 32 Ruie 18 of the High Court Rules. The Court would not require much persuasion to make an order under the rule if 1t were shown that there was reasonable ground for suspecting the exzstence of further documents; see the Supreme Court Practice (supra) Part 1 pp.449-450. Finally, a party may always serve a subpoena upon his opponent *%o proauce @ocuments. to ur There may be questions of abuse in such a case af the procedure 1s used in lieu of discovery but 1t seems unlikely that that view would be taken if the subpoena were directed to the pro~ duction of documents recently coming unto the possession of the opposite party. In the laght or all these considerations the clear conclusion 15 that the learned primary judge was correct 1n the view he took that the Commission was not bound to make dascovery of documents coming into 1ts possession or power after it had made its original dascovery in 1981. That, however, does not conclude the matter. The Commission did ain fact make further and better discovery. It cannot, in my opinion, vake such a course without admissions, Upon the oath of one of ats officers, it says that the documents are material to the issues in the case. Ifa less formal statement disclosing the existence of the documents had been made, the defendants would plainly nave succeeaea in an application for further ana better discovery made pursuant to Order 32 Rule 18 of the Hign Court Rules earlier set out. The letter stating that the affidavit was 7ilea without admissions should be ignored. Thus the Commission, although not obliged to co so by any rule, order or direction of the Court, nas in fact made further ana better discovery. That 1s how tne matter must de approached. In an appropriate case che Court nas power peremp- torily to order the dismissal of proceedings or tne striking out of a defence if a varty 1s in flagrant or contumelious disregard of nis obligations uncer the rules or orders or directions of the Court; see Allen v. McAlpine (1968) 2 G.B. 229 ana Birkett v. James (1978) 4.C. 297 per Lord Diplock at p.318. In tnis case the way 1n wnicn the Commission went about disclosing the additional documents 1s open to criticism. Its conduct in that respect is exaceroated py statements cy 1ts then senior ccunsel made during tne application for an acgournment on 31 Marca last. Those statements would reascnaciy have lea the defend- ants to think tnat the new xccuments, :i ana wren is) rs s) le} rs wo He} rh oO procuced, woula not create any sucstant1a. 27, them. The Commission and its advisers ought to have appreciated tnat the aisclosure of such a vast quantity of material so close to 'the cate fixed for hearing would cause serious probiems for the defen- dants in such compiex litigation. That they did not appreciate the problem with which their actions woula confront tne defendants 1s to be regretted. But the case 1S Clearly not witnin the class of case referrea to in the authorities above mentioned. In the present case the discovery was made voiun- tarily and pursuant to no obligation. It was clearly prudent and sensible, as well as just, that disclosure of the documents be made. For reasons whicn our reference to the aosence of autherity well justify, the Commission was 1n genuine aoubt as to what course it snoula take in relation to the accuments. Matters went awry cecause 1 7 failed to Face up te tne sroblem as soon as 17 shoula nave done and disclosed tne accu- ments so close to the date 2ixeda for neering. But Will enable 'tne aefendants 'to rave tne examination of the documents in acvance oF 'tne hearing ana thus in advance cf anv use of the rtocuments which tne Commission may 17sel2 seex to maxe of trem. Procaoly also there have been disclosea to the defendants many documents of which tney would otherwise never nave become aware. In all those circumstances 1T seems imcossible to say tnat the Commission's actions have been of the flagrant kind whicn would need to be the case before Brambles woul. ce entitlea to the relief it here cla:ms. It was Sor the above reasons that I thought, at the conclusion of the argument on 1ts appeal, chat it wes not entitled to an craer tnet the proceedings against 1% be aismissed. For similar reasons 1% 1S, 1n my opinion, quite inapprop- riate to order, as tne primary juage was asked to do, that the Commission pay either the wnole of Brambles' costs up to date or tnose costs thrown away by reason of the aisclosure of the new iccuments, wnether on a solicitor and client basis or otnerwise, The acdicionai costs incurred as a resuit of tne production of tne accuments is a matter which snould rematn in tne arscretio +L OL 1] the primary juage. Iv seems unilkely tnaazt it will be appropriate for nlm vo turn fis Tina to that netter until the proceedings are at an ena. it remains to conslaer clains nace for tne filing 23. of an affidavit of furtner and cetter aiscovery and for inspection of at least some of the cocuments in the lettered volumes A to E in respect of which the Commzssion claims privilege from inspection. I have aireaay salc tnat the Commission was not entitled vo file a further anc better affidavit of ciscovery without admissions. There 15 therefore no purpose in there being filed any aaditional affidavit. Explicit claims for privilege from inspecticn of the cocuments are made in Miss Eannon's affidavit of 31 March, 1983. Thase claims and che cescription of the documents said to be contained in volumes A and B Leave no room for doubt tnat tne cocuments in those vOLlumes are privileged from inspection. The documents in volume © are saic dy Mzss Hannon to be orzvileged from inspection because, "they are communications between tre legal representatives oz the parties, or notes of discussions detween the parties or their legal representatives wnicn ccommunic- ations and discussions were witnout preguaice". The descripticns of tne documents tend tc dvear out what Miss &, cme ZS5urctn accument is te Hannon has saic. For examd Sala to comorise certain hardwricvern notes oF Mr, eR. M. Bannerman "re 'without prejudice!' aiscussions cetvween or on oenalf cZ the Plaintiff ana certain of the Defencants". It has been long established that documents whicn soncern wltnout prejudice discussions or negotiavions for the settlement of litigation are privileged from inspection in the interests of public policy; #hiften v. Hartwright (1848) 12 Beav.211, 50 E.2.759, and Raoin v. Menaoza & Co. (1954) 1 A.E.R. 247. It was submittea 1n argument that tne Ceciszons of the High Court in Grant v. Downs (1976) 135 C.L.R.d74 and National Employers' Mutual General insurance Assoc- zation Limitea v, Waind (1979) 141 ©.L.R. 548 nad altered the law and that nencefortn tne only privilege wnicn 4 party to litigation could claim was a privilege from inspection of documents wnich were established to have come into existence sclely for tne purpose of suomission to solicitors Zor advice or for use in litigation, eitner anticipatec or in fact on foov. This sutmiss:icn snould be regjectea, There 15 not vo be Touncé in whe two cases any intention to a=fect the quize [Oy everate heaa of privilege whicn 2s here in question, in this respect I am in agreement with the decision of Locknert J. in Trade Practices Commission v, Steriing (1297S) 36 7.L.R2.2¢4 in which his Honour regecvtea a similar argument, aithough "ey not in respect si a Claim for orivile to without prejudice documents. His Honour said (p.248) that Grant's case (supra) had nothing to say as to other well-established categories of legai professional privilege. For the accve reasons the documents in volume C are cherefore privileged from inspection by the defendants. The documents in volumes D and E were sa:d dy Miss Hannon eitner to nave been orought into existence by members of tne Commission's staZf for tne sole purpose of submission to the legal advisers of tne Commisszon for advice or for use by them in the proceedings, or were said to nave been orought into existence at the request of tne Commission's legal advisers solely to enable tne Commission's iegal advisers to advise the Commission or to conduct the oroceedcings on its bdehalr. Those claims clearly fall within tne class of aocument said by the Sign Court tc be privileged from insvection. Reference should particulariy oe made to waind's case (supraj at p.654 per Mason J. Accoré:ingly the Commissicn 1s entitled to maintain 1ts claims f QO Yr oorivilege from inspection of tne documents in volumes 5 ana E, In the result IL would maxe no order in she TNT appeal except that tne date for tne hearing cf tne proceecings its) be postponed to 15 June next and that the costs of the appellants in chat appeal be paid by the Commission. The appellant in the Brambles appeal is entitled to succeed insofar as 1ts appeal involved tne vacation of the date criginally fixea for nearing. It has failed on all otner matters argued by it. Argument on 1ts apreal extended over a period of two days. The orders to be mace in the Brambles appeal shoula be that tne appeal ve allowed, the hearing date be postponed to 15 June, 1983, and that the appellant pay two-thirds of the Commission's costs of the appeal. i certify that this and the 2B oreceaing c the reasons for pages are 4 true copy of the rea "me Honourable judgment herein ot The Heno N Jon Cc Mr Justice Sheppard. Ss. masociate . 2) Dated * ee AA