IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ng 611 of 1998 BETWEEN: SANCELLA PTY LIMITED Applicant AND: JOHNSON AND JOHNSON PACIFIC PTY LIMTIED Respondent JUDGE: SACKVILLE J. DATE: 17 SEPTEMBER 1998 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR: These proceedings were instituted by an application filed on 22 June 1998. In that application, the applicant sought orders for pre-trial discovery under Order 15A r 6 of the Federal Court Rules ("FCR"). The order sought was in the following terms: "An order that the respondent make discovery of the documents listed in the attached schedule to the applicant under Order 15A rule 6 of the Federal Court Rules." The matter came on for hearing on 26 August 1998. On that date both parties were represented by senior counsel. The matter was resolved by the making of consent orders in accordance with short minutes prepared by the parties. Paragraph 1 of the consent orders required the respondent to "make discovery of the documents listed in the schedule to the application". This order reflected the terms of the relief sought in the initial application. A dispute has arisen between the parties as to whether the respondent is required to provide a verified list of documents in a manner contemplated by FCR, Order 15 r 2(2). The applicant's position is that the consent orders require the provision of a verified list. Mr Curtin, who appeared on behalf of the applicants, says that Order 15A should be understood as incorporating the requirements of discovery in order 15. He relies on the decision of Heerey J in Tracenia Nominees Pty Limited v Centro Properties Limited, unreported, 10 December 1993 to support the proposition that discovery contemplated by Order 15A is that provided for in Order 15. Ms Boland, who appeared on behalf of the respondent, submits that the understanding between the parties and the intention of the consent orders was that something in the nature of informal discovery be provided. She says that if it had been intended that an affidavit verifying the list of discovered documents should be provided by the respondent, the consent orders would have expressly so specified. In my view, the issue turns upon the construction of the consent orders. As I pointed out to Ms Boland, there is no evidence that sheds light on the understand of the parties, assuming such evidence in any event would have been admissible. Paragraph 1 of the consent orders uses the phrase "make discovery", reflecting the language in the application. It seems to me that the natural construction of this phrase is discovery as contemplated by the rules and in particular FCR, Order 15 r 2. Had the parties intended to provide merely for inspection of the documents or for some informal process of discovery, it might have been expected that a different expression would have been used in par 1 and, indeed, in other paragraphs of the consent orders. The language employed by the parties is entirely apt to embrace a process which includes the provision of a verified list of documents. I see no practical difficulty about a verified list being provided by the respondent. The schedule referred to in the consent orders is that contained in the application. It is, of course, common for orders to be made for limited discovery by reference to particular categories of documents. It is not a difficult task to adapt the requirements of a verified list to a schedule containing categories of the kind set out in the application. The orders made on 26 August 1998 contemplated that the matter would be stood over for further directions on 24 September 1998. In fact, the matter has been listed a little earlier than that date. Paragraph 4 of the consent orders granted liberty to the parties to apply on two days notice. That paragraph refers specifically to the relaxation of any confidential arrangements but uses the expression "inter alia". In my view, the consent orders were intended to reserve liberty to the parties to apply in relation to the implementation of the orders. The present application, although raising a question of construction of the orders, falls within this description. In those circumstances, I think it is appropriate to make orders requiring the respondent to provide a verified list of documents. Accordingly, I direct that the respondent within 14 days from today's date provide a list of documents and an affidavit verifying that list covering the documents referred to in par 1 of the consent orders made on 26 August 1998. I think the appropriate course is that no order as to costs be made in respect of today. I take that view because it appears from the evidence that the issue concerning the verified list of documents was first raised by the applicant yesterday. I appreciate that there have been other matters in dispute between the parties which caused the matter to be relisted today. But all other matters were resolved before today. The only issue litigated today was the question of construction and that emerged only after the matter had been set down today. In these circumstances, I think the appropriate course is that there be no order as to costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville Associate: Dated: 17 September 1998 Counsel for the Applicant: Mr G. Curtin Solicitor for the Applicant: Middletons Moore & Bevins Solicitor for the Respondent: Corrs Chambers Westgarth Date of Hearing: 17 September, 1998 Date of Judgment: 17 September, 1998