Cosdean Investments Pty Ltd v Football Federation Australia Limited (No 2) [2006] FCA 1775

FEDERAL COURT OF AUSTRALIA

Cosdean Investments Pty Ltd v Football Federation Australia Limited (No 2) [2006] FCA 1775

COSDEAN INVESTMENTS PTY LTD v FOOTBALL FEDERATION AUSTRALIA LIMITED AND SOCCER NSW LIMITED SAD 114 OF 2006

MANSFIELD J

1 DECEMBER 2006

ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 114 OF 2006

BETWEEN: COSDEAN INVESTMENTS PTY LTD

Applicant

AND: FOOTBALL FEDERATION AUSTRALIA LIMITED

First Respondent

SOCCER NSW LIMITED

Second Respondent

JUDGE: MANSFIELD J

DATE: 1 DECEMBER 2006

PLACE: ADELAIDE

REASONS FOR RULING 1 The applicant by motion of 7 November 2006 has applied for further and better discovery from the first respondent. It seeks further and better discovery of a number of documents specified in pars 1 to 27 of the letter from the applicant's solicitors to the solicitors for the first respondent of 1 November 2006, which is exhibit GMG1 to the affidavit of Gregory Griffin of 7 November 2006 in support of the application. 2 I take the application to be made under O 15 r 8 of the Federal Court Rules, that is an order for particular discovery, because the argument is that it should appear to the Court that there are grounds for a belief that some document or class of documents relating to any matter in question in the proceeding may be, or may have been, in the possession, custody or power of the first respondent and that those documents have not been discovered. 3 The first respondent filed a supplementary list of documents following the notice of motion. Subsequently, on 30 November 2006, it provided a further affidavit of Mr Foster-Jones, a member of the firm of solicitors acting for the first respondent, deposing to the inspection of the computer of Ms Richardson, a former employee of the first respondent, and to the fact that further discovery was given of three additional emails following that inspection. 4 It is common ground that the deleted emails from Ms Richardson's computer, that is those which have been "trashed" from the accessible deleted emails, have not been inspected. The applicant is prepared to provide an independent expert under the supervision of the first respondent to cause a further inspection of Ms Richardson's computer to be carried out at the applicant's cost. I see no reason why the first respondent should refuse that request. The first respondent will then have the opportunity of examining those deleted emails from Ms Richardson's computer which are not available presently to be inspected, and to determine whether further discovery of any of those emails should be given. In making those comments I am not to be taken as being critical of the first respondent for not having carried that process out at present. However, it seems to me to be an appropriate procedure to be undertaken by arrangement between the parties, given what has emerged from the material before the Court on this application as to the role of Ms Richardson within the first respondent at material times and in relation to the issues which arise in this proceeding. 5 Putting that issue aside, the major issue which arises between the parties stems from the speculation, or the assumption, as to Ms Richardson's role within the first respondent. In essence, the first respondent contends that the applicant has wrongly assumed that Ms Richardson did not have the personal authority on behalf of the first respondent to make the decisions and to implement the decisions which are recorded in communications which have been discovered, and that there is a more sophisticated or superior structure for decision-making which she would have been implementing. 6 The first respondent contends that that is simply a speculative assumption on the part of the applicant and, indeed, in the course of submissions, has asserted that it is a wrong assumption. That is, it has been asserted in the course of submissions of the first respondent that Ms Richardson was the officer within the first respondent who made the relevant decisions upon the material which has been discovered, and to the extent to which she consulted with other officers within the organisation of the first respondent she did so only informally, orally and in a manner in which no record of those communications was made, other than as has been discovered. 7 I am not prepared to infer adversely to the first respondent in those circumstances that it had a different decision-making structure than that which it asserts. Consequently, to a large measure the contentions of the applicant, based upon the assumption that it did have a different and perhaps more sophisticated decision-making process and a different and perhaps more sophisticated means of recording its decisions, at least insofar as they relate to matters arising in this proceedings, must fail. It follows that in a large measure I do not propose to make an order for particular discovery in the terms the applicant seeks. 8 The nature of the first respondent's decision-making structure has emerged significantly only in the course of submissions. In my view, it is appropriate in those circumstances that the first respondent discover such organisational structure documents, or decision-making structure documents as it had in existence at material times, and such job description of the person occupying Ms Richardson's position, or her job description at material times, as may be in existence. I did not understand counsel for the first respondent to resist such discovery, it having only emerged clearly in the course of argument. I do not think it is necessary to make an order to that effect in the light of what I have intimated should be done. 9 There is clear evidence that the first respondent had a file concerning Mr Cosenza, a director of the applicant. His players' agent licence was temporarily and then permanently withdrawn. Correspondence refers to that file. Counsel for the first respondent has asserted, and I accept, that the contents of the file have been discovered and are documents numbered 10 to 70 in the initial list of documents, verified by the general counsel of the first respondent. 10 In my view, the file itself should also be discovered. That is not an onerous task and it may be a fruitless task, but I think the fact of the existence of a file and, therefore, its cover document should be discovered by the first respondent. 11 The other file which the applicant asserts must clearly have existed is a file of the general counsel of the first respondent. There is clearly evidence that the general counsel witnessed certain relevant documents and was contacted for advice in relation to certain communications. It is surprising that there is no document recording anything done by the general counsel of those events. In normal commercial practice one would expect such material to exist. Indeed, I would understand the purpose of referring certain matters to legal counsel for advice is not only to be given oral advice, but to record that advice either by the recipient or by the legal counsel, or both. There are no such documents discovered. 12 The issue for me is whether I am satisfied that such documents probably exist and have not been discovered. The initial list of documents was verified on oath by the general counsel of the first respondent on 7 September 2006. This is not a matter where some other officer of the first respondent has verified the list of documents, perhaps without appreciating the desirability of the general counsel's records (if any) being discovered. In the light of that fact, however, and the confident assertion by counsel for the first respondent that there are no documents of the nature that I have referred to, I am not disposed to make an order for further discovery of such a file, or of the contents of such a file, because I am not satisfied that it probably exists in the organisational processes of the first respondent. As I have said, I find that surprising, but I must decide the matter on the material before me. 13 The end result is that subject to discovery of the file to which I have referred, the organisational structure documents and the job description of Ms Richardson's former position, and subject to the arrangements the parties may enter into to search the hard drive of Ms Richardson's computer to ensure that there are no other deleted discoverable emails there, I do not propose to make any further orders for discovery at this point. 14 I have no doubt that the first respondent will comply with the indications I have made without a specific order, so I will not make a formal order at present, but simply stand over the motion to a date to be fixed with liberty to apply. 15 I would expect the first respondent to have provided that additional discovery within seven days. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.