| ly. S Ax THE FEDERAL COURT OF AUSTRALIA ) Peal a NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION JUDGE MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT: BETWEEN : is Franki J. ) No. G.44 of 1978 ) T.N.T. MANAGEMENT PTY. LIMITED, ANSETT TRANSPORT INDUSTRIES (OPERATIONS } PTY. LIMITED and ASSOCIATED STEAMSHIPS PTY. LIMITED Applicants TRADE PRACTICES COMMISSION Respondent 20 June 1983 Sydney No order 1s made upon the application other than that the respondent, Trade Practices Commission, pay'three quarters of the costs of the applicants, T.N.T. Management Pty. Limited, Ansett Transport Industries (Operations) Pty. Limited and Associated Steamships Pty. Limited in this motion. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.44 of 1978 GENERAL DIVISION ) BETWEEN: T.N.T. MANAGEMENT PTY. LIMITED, ANSETT TRANSPORT INDUSTRIES (OPERATIONS ) PTY. LIMITED and ASSOCIATED STEAMSHIPS PTY. LIMITE Applicants - AND: TRADE PRACTICES COMMISSION Respondent 20 June 1983 Sydney REASONS FOR JUDGMENT FRANKI J. I give judgment in this epplication, in which I reserved judyment, but I have not been able to get the judgment into a form which can be given to the parties, particularly because of the position of this later affidavit of Miss Hannon, which I allowed to be read in court this morning. I will have to read what I have got to say. I am giving it orally because of what was perhaps until the last few minutes the urgency of the matter. Before me is an application filed on 23 May 1983 by T.N.T. Management Pty. Limited, Ansett Transport Industries (Operations) Pty. Limited and Associated Steamships Pty. Limited ("the applicants"), who are the first, fifth and seventh defendants, in an action brought by the Trade Practices Commission under the Trade Practices Act 1974. The action was commenced in May 1978 and there have been approximately 25 judgments on interlocutory matters, four of which have been given in appeals to the Full Court of this Court and one by the High Court which had granted special leave to appeal. The history of the matter can be ascertained from various judgments I have delivered and to which I referred in my judgment of 18 April 1983. Subsequent developments are to be found in my judgments of 27 April 1983 and 2 June 1983 and the judgment of the Full Court of this Court of 8 June 1983. This judgment is in a notice of motion originally filed on 23 May 1983 and twice amended by consent during the hearing. The amended notice of motion sought orders which broadly fell into five categories. The first sought that the Commission "Make, file and serve within 14 days an affidavit making further and better discovery", the second sought certain orders under s.157 of the Trade Practices Act, the third sought that the Commission "Supply and/or discover" certain records relating to a company, Tradestock Pty. Limited. The fourth category sought that the Commission "supply and/or discover" ... "all files and records relating to applications for authorisations and to seekings of clearances under the Trade Practices Act involving any of the defendants until 26 June 1978". In each case the words "and/or discover" were added by the first amendment. The fifth category, added by the second amendment, sought that the Commission state hy affidavit whether all or any of the documents referred to in the third and fourth categories are or had been at any time in its possession, custody or power and, if any such documents were no longer in such possession, custody or power, whether or not the Commission had parted with any such document ' and what had become of that document. The proceedings are still under the rules of the High Court, see my judgment of & May 1981. A firm hearing date of 17 May 1983 for the commencement of the action was vacated by an order of 8 June 1983 of the Full Court of this Court made by consent and a new hearing date was fixed for i5 June 1983. I will refer to this order later. However, because of the need to deal with this application, I postponed the hearing date of the action until 21 June 1983. I am delivering this judgment orally because it is now 20 June 1983. 'On 16 June 1983 I heard and refused an application made by the second defendant, Brambles Holdings Limited, to adjourn the commencement of the hearing until early in July. That defendant wishes to seek spectal leave from the High Court to appeal against the judgment of the Full Court of this Court delivered on 8 June 1983 in a matter which also involved the question of discovery and in particular whether & party had an obligation to discover, as it were, in a serial form, relevant documents coming into its possession from time to time after the original affidavit of discovery was sworn. Previous applications in relation to discovery have been filed by the first, fifth and seventh and the second defendants. On 12 April 1983, the first, fifth and seventh defendants filed the notice of motion in which I gave judgment dismissing the application on 18 and 27 April 1983 and from which the first, fifth and seventh defendants appealed to the Fuil Court. It gave judgment on 8 June 1983 and dismissed the appeal so far as related to discovery. The second defendant filed a notice of motion on 19 April 1983 seeking "a further and better affidavit of discovery in relation to its claim for legal professional privilege". This I refused on 27 April 1983 and an appeal by the second defendant was dismissed so far as it related to discovery by the Full Court on 8 June 1983. It will therefore be seen that, subject to the intimation by counsel for the second defendant that it proposes +o seek special leave to appeal to the High Court on the question of discovery, the issue of discovery as at about 18 April 1983 has been 'determined = However, the Commission apparently decided to make a further examination of the documents in its possession and, as a result of this, provided a further 173 pages of material to the solicitors for the first, fifth and seventh deferdants on 27 Mav ut 1983 and a further 40 pages of material on 2 June 19383. The hearing cf this motion has occupied more than two full days and after lunch on the second day senior counsel for the first, fifth and seventh defendants abandoned the claims under s.157 of the Trade Practices Act. It is necessary at this stage to examine again the obligation to give discovery and allow inspection. As I said in my judgment of 27 April 1983 at p.3: "T consider it important to bear in mind that discovery 1s only for the purpose of facilitating the proper trial of an action and 1t 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". The material before me in this application consists of certain letters which passed between the solicitors, a copy of the documents which were made available for inspection by the Commission on 27 May and 2 June 1983, affidavits by Mr J.R. King, a partner in the firm of solicitors acting for the first, fifth and seventh defendants, of 23 May, 26 May, 30 May and 16 June ' 1983, an affidavit of Mr R.C. Wheeler, a solicitor in the employ of the same solicitors, of 26 May 1983, affidavits of Ms. W.P. Hannon, a member of the staff of the Ccmmonwealth of Australia assisting the plaintiff, of 9 June 1983 and 17 June 1983, and of Mr G.G. Roberts, a Principal Legal Officer in the sub-office {Trade Practices) of the Commonwealth Crown Solicitor, of 10 June Lay OV 1983. The main thrust of the applicants' case in this mction may be broadly stated as that there must be other documents which ought to have been discovered as being relevant 1f for no other reason than because there 1s a reference in a document discovered to some other document. The first affidavit of discovery filed by the Commission on 27 January 1981 was of 571 pages. The notice of motion now before me, whilst dealing with discovery, appears to me to be really directed to ensuring inspection of documents which it was alleged were likely to be in the possession of the Commission and likely to be relevant. The request for discovery appears to have no practical purpose other than to found a claim for inspection. Mr Roberts, in his affidavit, deposed to a request on 19 May 1983 by counsel for the Commission for the production for his examination of all files held by the Commission which might contain any documents relevant to any issues in these proceedings so that a further check could be made for the purpose of filing a supplementary affidavit of discovery. He then said that Mr Rayment Q.C. and he had examined a number of files te which he referred. The Commission conducted the case before me on the basis that there were no other relevant documents which ought to have been discovered and which had not been discovered. Attention was directed by the applicants to paragraph 4 of Ms. Hannon's affidavit of 9 June 1983, and to the fact that the words "possession, custody or power" did not appear therein. I gave leave today for an affidavit to be read by Miss NN Ny Hannon which clarified that position. The Commission adopted the attitude throughout that that was merely an omission without being made other than by inadvertence. My attention was directed to varicus cases including Mulley v. Manifoid (1959) 103 C.L.R. 341 where Menzies J. dealt with rules 13 and 18 of order 32. At p.343 his Honour referred to the affidavit of discovery being conclusive except in the circumstances set out at that page and at p.345 his Honour said that discovery was not towards assisting a party upon a fishing expedition and continued: "Only a document which relates in some way to a matter in issue 1s discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary". That case does not deal with the question of inspection. Where an order for inspection is sought, order 32 rule 16 appears to be the rule that is applicable and the test there appears to be that a Judge shall not "make an order unless in his opinion that 1s necessary either for disposing fairly of the proceedings or for saving costs". My attention was also directed to the recent judgment of the House of Lords in Air Canada v. Secretary of State for Trade (1983) 2 W.L.R. 494. That case dealt mainly with the question of public interest immunity from inspection of certain documents. Lord Edmund-Davies at p.531 said in relation to discovery: "It follows, that at every stage of anterlocutory proceedings for discovery, the test to be applied 1s: W111 the material sought be such as is likely to advance the seeker's case, either affirmatively or indirectly by weakening the case of his opponent?" Mr Roberts explained that some documents which had been delivered by the plaintiff's solicitors to the defendants' solicitors had not been listed in the affidavit of discovery of 9 June 1983 because, on reflection, they were not considered - relevant or were already formally discovered in earlier affidavits of discovery. At least since the affidavit of 17 June 1983 was filed and read this morning the applicants, in my opinion, have not succeeded in establishing facts which would entitle them to any further affidavit of discovery. I was asked by the applicants to inspect the documents which were provided by the solicitors for the Commission on 27 May 1983 and 2 June 1983. No opposition was raised to my adopting this course and I have carried out such an inspection. It is clear that Mr Kang believes some relevant documents have net been discovered. ' I am of the opinion that if, contrary to the views I have expressed, the applicants had established that there were some documents relating to a matter in question which ought to have been discovered, the question of whether I would order inspection would then arise and I would have to consider whether an order for inspection was necessary either for disposing fairly of the proceedings or for saving costs. It 1s not irrelevant to note that many of the documents which it 1s alleged the Commission ought to have discovered are documents emanating from the defendants, for example, from the first defendant, an applicant in this matter. I direct my attention to the request for orders that the plaintiff "supply or discover". The case was conducted upon the basis that the application extended, if not to an obligation to supply, certainly to an obligation to allow inspection. No - material was specifically put before me in relation to whether any inspection, even if all other requirements had been established, was necessary for fairly disposing of the proceedings or necessary for saving costs. I would not be prepared to conclude that it would be necessary for saving costs. If there should be an odd document or two which had not been discovered in the thousands of pages of material discovered and if there might be some grounds for arguing that an order for inspection should be made, I would be greatly surprised 1f any such document (if it existed) would be necessary for fairly disposing of the proceedings. ' ' Senior counsel for the applicants submitted that 1t 1s possible that there is relevant material still not discovered being, in particular, determinations of the Commission in applications by one or other defendants involving questions of 10. the relevant market and questions of competition and these could "Jead to a train of enquiry relating to market". I am by no means satisfied of this. In so far as any order depends on the exercise of my discretion I note that a number of the documents which appear to be prominent in the minds of the applicants are documents which emanated from the first defendant. In addition, there is no real evidence before me whether or not copies of these documents are still in the possession of the applicants. Also, the existence of files relating to applications for authorisation and notices , seeking documents under the Trade Practices Act must have been known to each of the applicants for many years. It 1s of course clear that the Commission ought not to have failed to make previous discovery of any of the documents made available on 27 May and 2 June 1983, if they were properly discoverable. And para. 4 of Ms Hannon's affidavit of 9 June 1983 should have been in proper form. I was also informed this morning by senior counsel for the Commission that paragraph 3 of Miss Hannon's affidavit of 9 June 1983 was also, I think it is fair to say, inadvertently incorrect, but I do.no more than state that the transcript records precisely what was said about that paragraph this morning. I add that because of this information I asked for submissions on whether I shou!d deliver judgment in this matter this morning or whether i should postrone 1t so that some further affidavit could be filed. Submissions were made by the Commission and by a number of defendants in the action, including the applicants in thts matter, that I should deliver judgment forthwith. I have adopted that course. No opposition was v raised by anybody to my so doing. It may be that the documents made available on 27 May and 2 June only attracted attention after the activity of the applicants prior to the present notice of motion being failed. The affidavits of 9 and 10 June 1983 could fairly be described as further affidavits of discovery. It was for this reason that I refused to allow cross examination of Mr Roberts. Apart from the question of costs, I refuse to make any orders in the amended notice of motion of 23 May 1983. I certify that this and the (70) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr dustice Pranki. Cone Gy A Assoviate Dated: "Co Zena (7FD. ,