GMB Research & Development Pty Ltd v The Commonwealth of Australia [1997] FCA 211

NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. NG 111 of 1997 BETWEEN: GMB RESEARCH & DEVELOPMENT PTY LIMITED (A.C.N. 002 879 254) Applicant AND: THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: Lehane J PLACE: Sydney DATE: 26 February 1997 EXTEMPORE REASONS FOR JUDGMENT LEHANE J: The application before me is one for an order for preliminary discovery under order 15A, rule 6. The parties are in agreement that an order should be made that the respondent file and serve on the applicant a list of documents falling within certain particular categories, and that the respondent also should provide to the applicant a list of names, positions or designations of certain persons responsible for the making of decisions in relation to the tender process within which these decisions are concerned. But there remain three matters in issue. One is as to whether the list should be verified. The second is as to the time not later than which the lists are to be provided. The third relates to costs.

I have heard substantial and helpful argument on all three issues. The easiest of them with which to start is the issue as to the time by which lists are to be provided. The applicant asks that the order require provision of the lists not later than 5 pm on 3 March 1997. The respondent says that the appropriate time is 5 pm on 7 March 1997. It is clear that there is some urgency in this matter from the point of view of the applicant. The applicant needs to know, and needs to know soon, whether it is in a position to commence proceedings which have as their purpose the applicant's reinstatement in a tender process from which at present it faces the prospect of being excluded. On the other hand, the current phase of the tender evaluation process will come to an end on 28 February - that is to say two days from now - and the lists will, in any event, be provided after that date. The tender process as a whole is to be completed at the end of June this year, at least unless, for one reason or another, that timetable is extended, and Mr Bennett QC, who appeared today for the respondent, put to me that it would be difficult for the respondent to be certain of complying with the requirements of an order for the provision of the agreed lists by 5 pm on 3 March. There is no particular evidence as to that difficulty. It is merely said, and it is easy enough to see that this is likely to be correct, that at least some cutting and pasting will need to be done. Additionally, there is a degree of geographical separation between the respondent and its counsel which I suppose, even in these days, remains of some significance, particularly for the process of checking that the list compiled complies fully with the order. At all events, although plainly this matter ought to be dealt with as a matter of urgency, I cannot see that any particular prejudice is likely to flow from allowing an extra four days at this stage in the proceedings, and I am prepared to accede to the respondent's submission that the appropriate time for the provision of the lists is 5 pm on 7 March. The next question is whether the list of documents ought to be verified. In a sense, it is tempting to think that this is a question which does not matter a great deal. I say that because, as I suggested during the course of argument, the same obligations in relation to discovery, both of the party obliged to give discovery and its advisers, must apply whether lists of documents are verified or not. Mr Bennett put to me that it did not appear from the judgments in the two cases to which I have been referred - Concrete Construction Group Pty Ltd v Commonwealth of Australia 22 April 1996 unreported FCA (Sheppard J) and Hughes Aircraft Systems International v Civil Aviation Authority 28 June 1995 unreported FCA (Davies J) - that verified discovery was ordered. The difficulty with that, I think, is that in each case the making of orders was postponed and the printed judgments do not in fact reveal whether verified discovery was ordered or not. No doubt the actual orders made, assuming actual orders were made, would reveal that, but those orders are not before me. Mr Bennett also submitted that, given the identity of the respondents it was inappropriate to order verified discovery even if, in cases involving other respondents, verification might be appropriate.