BT (Australasia) Pty Ltd v State of New South Wales & Anor [1996] FCA 352

NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 572 of 1995 GENERAL DIVISION ) BT AUSTRALASIA PTY LTD Applicant STATE OF NEW SOUTH WALES First Respondent TELSTRA CORPORATION LIMITED Second Respondent Coram: Sackville J. Place: Sydney Date: 20 May, 1996 MINUTES OF ORDER THE COURT: Makes the orders attached to the judgment herein. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 572 of 1995 GENERAL DIVISION ) BT AUSTRALASIA PTY LTD Applicant STATE OF NEW SOUTH WALES First Respondent TELSTRA CORPORATION LIMITED Second Respondent Coram: Sackville J. Place: Sydney Date: 20 May, 1996 REASONS FOR JUDGMENT Introduction In these proceedings I delivered a judgment on 1 April 1996 dealing with certain interlocutory issues arising between the applicant ("BTA") and the first respondent ("the State"). I subsequently published an edited version of that judgment, which briefly explains the background to the litigation. The judgment indicated that a number of other issues, mostly relating to discovery between BTA and the second respondent ("Telstra"), remained to be resolved. The nature and scope of discovery to be made by Telstra was referred to at the interlocutory hearings on 13 and 21 March 1996. There was further debate at the hearing of 1 April

1996, when the outstanding matters were stood over to be dealt with on 8 and 9 May 1996. The April Short Minutes On 1 April 1996, Mr Garnsey QC, who appeared with Mr Margo and Mr Dicker for BTA, prepared detailed draft short minutes reflecting BTA's position. Among other things, these set out the categories of documents BTA sought from Telstra by way of discovery. The draft short minutes included two schedules. Schedule 1 identified categories of "high level documents" that BTA sought by way of discovery, in relation to what have been described as the market and competition issues raised by the amended statement of claim filed on 20 October 1995. The term "high level documents" was defined as follows: "reports, analyses, surveys, plans, business plans, studies, feasibility studies, strategy or policy documents, manuals, forecasts, assessments, registers, submissions, schedules or similar documents, including documents in electronic format, which aggregate or summarise information or data". Another key definition in the draft short minutes was that applicable to the term "initial personnel". This definition listed nine specific categories of employees employed by Telstra after 1 April 1991. The significance of the definitions in the April short minutes is that the minutes limited the scope of Telstra's discovery on market and competition issues (subject to any further order of the Court) by reference to "high level documents which are or were during the period [after 1 April 1991] in the possession or custody of any of the 'initial personnel'". The principal object of limiting discovery in this way, as explained by Mr Garnsey, is to make Telstra's formidable task more manageable and, therefore, speedier and less expensive. Schedule 2 to the April short minutes identified the categories of documents sought by BTA from Telstra in relation to general issues - that is, other than market and competition issues. BTA's position at the hearing on 1 April 1996 was that this schedule significantly reduced the burden of discovery that Telstra otherwise would have to meet. For example, Schedule 2 defined certain categories of discoverable documents by reference to a specified list of New South Wales Government Agencies. Others were defined by reference to documents generated or held by named employees of and consultants to Telstra. The May Short Minutes At the hearing on 1 April 1996, the debate concerning the scope of discovery by Telstra was not completed, although some issues were aired. I made a number of directions, designed to ensure that the outstanding issues could be dealt with in the two days of hearing time available on 8 and 9 May 1996. The legal representatives also indicated that discussions would take place with a view to narrowing the issues between them. On 8 and 9 May 1996, Mr Margo and Mr Dicker appeared for BTA. Mr Stevenson appeared for Telstra. Mr Margo handed up an amended set of draft short minutes. He explained that many of the amendments to the draft were intended to meet objections stated or foreshadowed on behalf of Telstra in their submissions and at the earlier hearings. In my opinion, the amended short minutes have been extremely helpful in narrowing the areas of dispute and, ultimately, in allowing the outstanding issues to be resolved, whether by agreement or by a ruling. One important amendment incorporated in the May short minutes (as I shall describe them) concerns the definition of "services". This term is significant, since Schedule 1 identifies categories of discoverable documents by descriptions which incorporate reference to Telstra's "services". The May short minutes incorporate a narrower definition than that which had previously been adopted: "'services' means those services or products which are or were during the period the subject of a tariff published in Telstra's Basic Carriage Services Tariff Book but does not include an excluded service and 'service' bears a corresponding meaning." It is not necessary for present purposes to set out the definition of "excluded service".