FEDERAL COURT OF AUSTRALIA Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 8) [2011] FCA 221 Citation: Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 8) [2011] FCA 221 Parties: SUNLAND WATERFRONT (BVI) LTD and SUNLAND GROUP PTY LTD ACN 063 429 532 v PRUDENTIA INVESTMENTS PTY LTD ACN 091 390 742, HANLEY INVESTMENTS PTE LTD, ANGUS JOHN LUXMOORE REED and MATTHEW JAMES JOYCE File number: QUD 195 of 2009 Judge: LOGAN J Date of judgment: 15 March 2011 Catchwords: PRACTICE AND PROCEDURE - Discovery Legislation: Supreme Court of Judicature Acts of 1873 and 1875 (UK) Federal Court Rules O 15 r 2(3), O 15 r 2 (6), O 15 r 5(3), O 15 r 6, O 15 r 8 High Court Rules 1952 O 13 r 18 Cases cited: Australian Independent Newspapers Limited v John Fairfax Holdings Limited [1994] FCA 1167 cited Brookfield v Yevad Products Pty Ltd [2002] FCA 1376 considered Jones v The Monte Video Gas Company (1879-1880) LR 5 QBD 556 cited Lonrho Limited v Shell Petroleum (1980) 1 WLR 627 applied Metcash Trading v Bunn (2010) 263 ALR 132 followed Mulley v Manifold (1959) 103 CLR 341 considered Procter v Kalivis (No 2) [2010] FCA 663 considered Re McGorm, Ex parte Co operative Building Society of South Australia (1989) 20 FCR 387 applied Seven Network Limited v News Limited [2005] FCA 915 cited Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 cited Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 5) [2010] FCA 932 cited Date of hearing: 16 December 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 31 Counsel for the Applicants: Mr P O'Shea Solicitor for the Applicants: DLA Phillips Fox Counsel for the First, Second and Third Respondents: Mr S Finch Solicitor for the First, Second and Third Respondents: Freehills Counsel for the Fourth Respondent: Mr N Hopkins Solicitor for Fourth the Respondent: Norton Rose IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 195 of 2009 BETWEEN: SUNLAND WATERFRONT (BVI) LTD First Applicant SUNLAND GROUP PTY LTD ACN 063 429 532 Second Applicant AND: PRUDENTIA INVESTMENTS PTY LTD ACN 091 390 742 First Respondent HANLEY INVESTMENTS PTE LTD Second Respondent ANGUS JOHN LUXMOORE REED Third Respondent MATTHEW JAMES JOYCE Fourth Respondent JUDGE: LOGAN J DATE OF ORDER: 15 MARCH 2011 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Within such time as the first and second applicants may within two days hereof agree with the fourth respondent or failing such agreement within such time as the Court may appoint, the fourth respondent is to file and serve on the parties a further affidavit stating whether any of the documents or classes of document referred to in paragraph 3 of the Order made on 19 August 2010 are or have been within his power and: (a) to the extent that they are within his power, listing them or, if not so listed, the nature and extent of the search for the same which he has conducted or caused to be conducted and the reason(s) why, having regard to the matters set out in O 15 r 5(3) of the Federal Court Rules, he has not listed them; and (b) to the extent that they are not within his power, when they were last within his power. 2. Within two days hereof, the first and second applicants and the fourth respondent are jointly to notify the Registrar in writing as to whether agreement has been reached as to the time to be allowed to the fourth respondent for compliance with the obligation imposed by paragraph 1. In the event of agreement, it will be sufficient compliance with the notification requirement if those parties lodge with the Registrar a signed form of consent to the making of an order in chambers as to the allowance of time. 3. In default of agreement, the first and second applicants' related notice of motion is to be relisted on a date to be fixed by the Court after consultation with them and with the fourth respondent. 4. Save as aforesaid, so much of that notice of motion as relates to discovery is dismissed with costs being reserved. 5. There is liberty to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 195 of 2009 BETWEEN: SUNLAND WATERFRONT (BVI) LTD First Applicant SUNLAND GROUP PTY LTD ACN 063 429 532 Second Applicant AND: PRUDENTIA INVESTMENTS PTY LTD ACN 091 390 742 First Respondent HANLEY INVESTMENTS PTE LTD Second Respondent ANGUS JOHN LUXMOORE REED Third Respondent MATTHEW JAMES JOYCE Fourth Respondent JUDGE: LOGAN J DATE: 15 MARCH 2011 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The Macquarie Dictionary (Online Edition) defines the term "mission creep" thus, "the gradual shift away from the original objective of a mission to a new one, usually under the influence of circumstances". The Oxford Dictionary (Online Edition) defines it in a more specific way which reflects its origins in United States military slang, "a gradual shift in political or strategic objectives during the course of a military campaign, frequently resulting in an unresolved conflict or open-ended commitment; also in extended use". This interlocutory application brings to mind its extended use. 2 This is the third occasion in which it has proved necessary in this matter to resolve a dispute between the parties in relation to discovery. That was after an initial expectation in the course of pre-trial management that all disputes on this subject would be brought forward and resolved but once by an interlocutory judgment, and thence, with the benefit of the reasons for judgment for that resolution, by such mutual co-operation between solicitors in the interests of justice, as the Court is entitled to expect of officers of the Court. So much for expectations. 3 These reasons for judgment should be read in conjunction with the two earlier judgments which I have delivered in this matter on the subject of discovery: Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 (the No 4 judgment) and Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 5) [2010] FCA 932. That said, it is convenient to set out an extract from the No 4 judgment (at [40] to [42]), because the issues which the Sunland parties wish to agitate in relation to discovery arises from that part of the order which I made on 19 August 2010 (Order 3) to which these paragraphs of that judgment relate: Request for financial documents/documents relating to payment of AED 44,105,780 40 The misrepresentations alleged by the Sunland parties in the statement of claim are said to amount to concerted action on the part of Mr Reed and Mr Joyce. On this basis and so far as discovery is concerned the Sunland parties submit that the fate of the AED 44,105,780 is relevant to the issue of whether there was any joint concerted action by Mr Reed and Mr Joyce. They point to ex post facto findings as to the flow of funds in an ex post facto report of GMK Centric, Chartered Accountants (GMK) of 23 December 2009, which has been discovered by the respondents as indicative of evidence that ought to be in the discovery of each of the respondents but is not. They further submit that, if this accounting firm is able to obtain the documents upon which its report (and an addendum of 1 April 2010) is based, such documents ought thereby to be regarded as within the possession, power or control of the respondents. 41 The respondents' attitude to this request for further discovery appears to be that whatever obligation they had to provide further discovery in respect of documents relating to the fate of the AED 44,105,780 received by Clyde & Co has been met by the later further discovery of the GMK report and its addendum together with the relevant annexures. 42 I agree that the provision of these GMK materials was necessary further discovery. It does not follow from this that it is sufficient. The Sunland parties pointed by way of example to the reference in the GMK report of 23 December 2009 to the disbursement on 27 November 2007 of the sum of AED 22,052,890 by Clyde & Co to an account of Eightblue Limited with the Standard Bank in Jersey. The GMK report proceeds on an assumption that Eightblue Limited and a trust known as the Eightblue Trust are associated. In turn, other evidence suggests that the ultimate beneficiaries of the Eightblue Trust are Mr Joyce, his wife and their children. The point of all this is that the GMK report and its addendum, considered with other material discovered by the respondents, suggests that they may not have given full effect to what constitutes documents within their possession, custody or control when giving discovery. That is a sufficient basis upon which to order that the respondents (I include Mr Joyce deliberately) discover any documents within their possession, custody or control which show the payment of any part of the AED 44,105,780 to, or at the direction (directly or indirectly) of Mr Reed or Mr Joyce at any time after the receipt of that sum by Clyde & Co and the reasons for any such payment. A significant issue on the pleadings in this case is whether, as the Sunland parties allege, Messrs Reed and Joyce were parties to misleading or deceptive conduct or to misrepresentations. 4 The related order was in these terms, "By 2 September 2010, the first to fourth respondents discover to the applicants any documents within their respective possession, custody or power which show the payment of any part of the sum of AED 44,105,780 paid by the applicants to Clyde & Co to, or at the direction (directly or indirectly) of the third or fourth respondents at any time after the receipt of that sum by Clyde & Co or which show the reasons for any such payment." 5 The authority for the making of that order is to be found in O 15 r 8 of the Federal Court Rules. A consequence of the making of that order was that the respondents were respectively obliged to file and serve on the other parties an affidavit stating whether any document of that class is or had been in his (or its) possession, custody or power, and if it had been but is not then in such possession, custody or power, when he (or it) parted with it and what had become of it. Supplementary lists of documents, verified by affidavit, have been filed by the respondents in response to that order. 6 In the present interlocutory application the Sunland parties seek the making of a further order pursuant to O 15 r 8, as well as under the order made on 19 August 2010. The latter provides no additional authority for the respondents have responded to it by the filing of a supplementary list verified by affidavit. The question is whether there is reason to believe that affidavit is sufficient? However one approaches the matter, the authority for the making of any further order is O 15 r 8. 7 The documents or classes of document in respect of which further and better discovery was sought were identified in Schedule 1 to the Sunland parties' notice of motion. Either as a result of concession by a respondent or by abandonment, not all of what is there described came to be pressed as a category for further and better discovery. The categories which remained were these: Schedule 1 For the purposes of Schedule 1: • Document has the meaning defined in Order 1 rule 4 of the Federal Court Rules. • Eightblue means Eightblue Limited. • Eightblue Trust means the trust that wholly owns Eightblue. • GMK Report means the report by GMK Centric dated 23 December 2009, document number PRU.004.008.0001. • Hanley means the Second Respondent. • Hanley Agreement has the same meaning as in paragraph 32.2 of the Further Amended Statement of Claim. • Joyce means the Fourth Respondent. • Payment means the payment specified in paragraph 3 of the orders of 19 August 2010. • Prudentia means the First Respondent. • Reed means the Third Respondent. 1 In relation to Eightblue and the Eightblue Trust: 1.1 The trust deed, and any other document that shows who are the trust's beneficiaries, trustees, appointer (or enforcer or similar) and other office holders. 1.2 Eightblue's constitution. 1.3 Where any of those persons are corporations (including but not limited to Eightblue Limited), documents giving full details of the company's name, place of incorporation, directors and other officers, shareholders are required, along with a copy of the company's constitution. 1.4 The Eightblue Trust's financial reports from 31 December 2007 to 30 June 2009. 1.5 The ledger accounts, journal entries and bank statements that record the transactions referred to in the GMK Report. 1.6 Any other correspondence or documents dealing with the receipt of the Payment by Eightblue, and the payment made by Eightblue to Hanley. 2 Hanley's financial statements, including: 2.1 Hanley's audited financial statements from its incorporation until the financial year ending next after 13 February 2009, including original statements and any amended statements. 2.2 Detailed profit and loss statements, and detailed balance sheets. 2.3 The ledger accounts, journal entries and bank statements that record the transactions referred to in the GMK Report. 2.4 Hanley's tax returns covering all of that period, including any amended returns. 3 Prudentia's financial statements, including: 3.1 Prudentia's audited financial statements from 1 July 2007 until 30 June 2009, including original statements and any amended statements. 3.2 Detailed profit and loss statements, and detailed balance sheets. 3.3 The ledger accounts, journal entries and bank statements that record the transactions referred to in the GMK Report. 3.4 Prudentia's original 2007-08 tax return, and 2008-09 tax return, and all amended and/or consolidated returns. 4 … 5 All documents underlying the calculations given in the GMK Report as the basis for the transfer of funds from Eightblue back to Hanley. 6 All authorities from Hanley given to Clyde & Co, Mr Joyce and anyone else for the Payment. 7 … 8 … 8 Insofar as Prudentia, Hanley and Mr Reed were concerned, the effect of the Sunland parties' submissions was that, having regard to the GMK report and also to an analysis of what one might expect to be underlying documents in respect of that report, those respondents must have or have had, within their possession, custody or power, documents such as ledger accounts and other documents as set out in Schedule 1 that recorded the transactions referred to in that report. It was submitted that they were, in effect, entitled to the discovery of documents recording a "money trail". 9 The Sunland parties engaged a forensic accountant (Mr J Scott) to analyse the GMK report and to advise upon those types of documents which one would expect the respondents to have in order to prepare accounts, to comply with taxation obligations and to yield the GMK report. Controversy attended whether Mr Scott's report ought to be received in evidence. 10 In the No 4 judgment, at [9] and [10], I set out what I regarded as the position in relation to questioning the sufficiency of a list of documents verified by affidavit. 11 One of the authorities to which I there referred was the judgment of Menzies J in Mulley v Manifold (1959) 103 CLR 341 at 343 (Mulley v Manifold). At the time when that case was decided, the then High Court Rules 1952 contained, in O 13 r 18, an analogue of O 15 r 8. An application under that analogue rule had to be supported by an affidavit deposing to a belief as to a party against whom the application was made having or having had a document or class of documents within his possession, custody or power. Such an affidavit had to disclose the basis for that belief. 12 The Sunland parties did not question the continuing utility of the observations made by Menzies J in Mulley v Manifold, supra. Indeed, they embraced them. Their submission was that O 15 r 8 had relaxed the position in relation to the conclusiveness of an affidavit verifying a list. For this proposition they referred to the following passage from the judgment of Lander J in Metcash Trading v Bunn (2010) 263 ALR 132 at [17] – [19] (Metcash Trading v Bunn): 17 The respondent does not claim to have brought this application pursuant to O 15 r 8 but it should be treated as such. Order 15 rule 8 was introduced to obviate the hardship of the rule that the affidavit of discovery was conclusive. Discovery is a process easily abused. If a party cannot go behind another party's discovery, there is in reality no way of ensuring that parties to a proceeding have complied with their obligations. If this rule is intractable, each party is only subject to that party's own audit of its compliance. The purpose of O 15 r 8 is to relax the effect of the rule that an affidavit of discovery is entirely conclusive. 18 Order 15 rule 8 is available to a party who contends that another party has not complied with that party's obligations to make full discovery. A party seeking to rely on O 15 r 8 will succeed in obtaining an order from the Court for further discovery if the Court is satisfied that there are grounds for belief that some document or class of documents relating to a matter in question in the proceeding may or may not have been in the possession, custody or power of the other party and the Court, in the exercise of its discretion, is of the opinion that the order should be made. 19 The test for further and better discovery is not demanding. The moving party must establish that there is a document or class of documents which "may be or may have been in the possession, custody or power" of the other party. The moving party does not need to establish the actual existence of the document or class of documents but only grounds for belief for the probability of the document's existence. However, that is not the end of the inquiry. If the moving party can pass that threshold test, the Court has a discretion whether the Court will make the order in paragraph (a) of rule 8. 13 The "relaxation" to which his Honour refers in Metcash Trading v Bunn is of a position as to the conclusiveness of an affidavit of documents which had prevailed under the original Rules of the Supreme Court of England and Wales following the enactment of the Supreme Court of Judicature Acts of 1873 and 1875 (UK), qv Jones v The Monte Video Gas Company (1879-1880) LR 5 QBD 556. It was to that same "relaxation" of position to which Menzies J referred in Mulley v Manifold, supra in relation to the then O 13 r18 of the High Court Rules. In this sense, there is, with respect, nothing novel in the observation as to the purpose of O 15 r 8 made by Lander J. I respectfully agree with all of his Honour's observations with respect to that rule in the passage quoted. It is no part of his Honour's observations that O 15 r 8 effected any further "relaxation". 14 While the earlier High Court rule and O 15 r 8 are analogues, the latter must be applied according to its terms. In so doing, it would nonetheless be a mistake to treat it as drafted in ignorance of the evolution in practice and procedure which had already occurred in other jurisdictions in relation to the extent to which an affidavit of documents would be treated as conclusive. Also in the No 4 judgment, I drew attention to what I described as a helpful collection of authorities by Graham J in Seven Network Limited v News Limited [2005] FCA 915 at [25]. One of the authorities to which his Honour made reference is Brookfield v Yevad Products Pty Ltd [2002] FCA 1376 where, at [21], Mansfield J observed of challenges to the sufficiency of an affidavit verifying a list of documents that, "The Court is concerned to prevent a contest between two competing oaths that only a trial could resolve." It is no part of the purpose of O 15 r 8 to facilitate such contests. The nature of the test for the making of an order for further and better discovery, described by Lander J in Metcash Trading v Bunn, underscores this. 15 The respondents did not gainsay the Sunland parties' submission as to the intent of Order 3. Rather, they drew attention to the terms of that order and to the issue on the pleadings to which it related. Their submission was that the flaw in the Sunland parties' position was that it treated Order 3 as a requirement to discover the documents which underpinned the GMK report, rather than to discover documents falling within the terms of that order. In that submission they were not mistaken. 16 Order 3 does not, in terms, require the discovery of documents which underpin the GMK report. To treat it as if it did is, truly, to engage in a form of forensic "mission creep". That report provided occasion under O 15 r 8 for the making of Order 3 but the result of that was not to order discovery of the documents upon which its authors had relied in making that report but of "any documents within their possession, custody or control which show the payment of any part of the AED 44,105,780 to, or at the direction (directly or indirectly) of Mr Reed or Mr Joyce at any time after the receipt of that sum by Clyde & Co and the reasons for any such payment". Of course it is possible that documents falling within these classes may very well have underpinned the GMK report but equally that may not be so. 17 This conclusion exposes why Mr Scott's report is but a distraction. I accept that, given the reference to "evidence" in O 15 r 8, there may, in a particular case, be scope for the reception of expert evidence in deciding whether there are, in terms of O 15 r 8, "grounds for a belief" that some document or class of document relating to any matter in question in the proceeding may be, or may have been, in the possession, custody or power of a party. Expert evidence as to a discovered document might well, for example, assist in providing a ground for a belief not otherwise apparent on lay inspection that it was necessarily predicated on the existence of another document relating to a matter in question in the proceeding. Some types of electronic data might provide an occasion for such evidence. In this case though all of such work has already been done by the GMK report. Order 3 was the result. It is that result that the respondents have already addressed by supplementary list. Mr Scott's report does not provide a basis for going behind those lists. What one might or might not expect in terms of accounting practice is nothing to the point. Further, the GMK report may or may not accurately describe a position in relation to the "money trail". That is not a subject to be decided at this stage. It is not want of expertise or compliance with this Court's practice in relation to expert witnesses, but rather its tendency to what I have termed "mission creep", that makes Mr Scott's report a distraction. 18 That is sufficient to dispose of all of the remaining controversy in relation to Schedule 1 to the notice of motion, save for paragraph 1. 19 This part of the application is directed to Mr Joyce. In respect of this the Sunland parties focussed not just on whether this category fell within the terms of Order 3 but also on whether Mr Joyce had indeed addressed his obligation to discover documents within his possession, custody or control. As to the latter obligation, reference was made in the course of the submissions to a discussion of the subject by Besanko J in Procter v Kalivis (No 2) [2010] FCA 663 (Procter v Kalivis (No 2)). In that case, his Honour had been pressed to adopt by analogy remarks made by von Doussa J in Re McGorm; Ex parte Co operative Building Society of South Australia (1989) 20 FCR 387 at 389-390 (Re McGorm) as to what was entailed in discharging a discovery obligation which arose under then bankruptcy practice requirements. What von Doussa J there stated was this: The obligation resting on a party obliged to give discovery requires that he make proper enquiries and efforts to identify and disclose all relevant documents that are not in his possession. The obligation extends to making inquiries from the person in whose possession the documents now are: see Mertens v Haigh (1863) 3 De GJ & S 528 at 531; 46 ER 741 at 742. It was said in the nineteenth century case of Taylor v Rundell (1841) Cr & Ph 104 at 113; 41 ER 429 at 433 by Lyndhurst LC: "If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it." See also Palmdale Insurance Ltd (In liq) v L Grollo & Co Pty Ltd [1987] VR 113. The scope of the inquiries which should be made will depend on the circumstances of the case having regard to the need for discovery in order to dispose fairly of the matters in question, or to save costs in the proceedings. The inquiries must be reasonable, but do not demand of the party giving discovery that he goes to lengths which are oppressive. 20 In Procter v Kalivis (No 2) the applicants in that case put to Besanko J that they had not been able to find any authority directly on point as to the nature of the discovery obligation with respect to the making of inquiries; hence the reliance by analogy on Re McGorm. In fact, Re McGorm was expressly cited with approval by Beaumont J in Australian Independent Newspapers Limited v John Fairfax Holdings Limited [1994] FCA 1167 at [9] (Australian Independent Newspapers Limited v John Fairfax Holdings Limited) in relation to the discovery obligation under O 15. In so doing, Beaumont J, at [12], adopted as a qualification as to the extent of the obligation the following statement made by Lord Diplock in Lonrho Limited v Shell Petroleum (1980) 1 WLR 627 at 635-636 (Lonrho Limited v Shell Petroleum): ...in the context of the phrase 'possession, custody or power' the expression 'power' must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future. 21 It was not necessary in Procter v Kalivis (No 2) for Besanko J to decide whether to adopt by analogy the statements made by von Doussa J in Re McGorm and his Honour did not do that. Instead, his Honour found it sufficient to resolve the matter before him by referring to the "reasonable search" requirement found in O 15 r 2(3). As to that, Besanko J stated, at [16], "If a party does not search for a category or class of document, then he or she must include in the list of documents a statement of the category or class of document not searched for and the reason why a search was not carried out (see O 15 r 2(6)). Importantly, there is no express obligation in the Rules on a party to state in his or her affidavit of discovery the searches and inquiries which have been carried out. That is not to say that a Court might not make an appropriate order where there is evidence of a failure to conduct searches and inquiries." As it happened, there was in Procter v Kalivis (No 2) nothing to suggest that such searches had not been conducted and the application for further and better discovery was therefore dismissed. 22 Order 15 r 8, like O 15 r 6, retains the use of the phrase "possession, custody or power". This phrase relates to the scope of the obligation. In that regard, like Beaumont J in Australian Independent Newspapers Limited v John Fairfax Holdings Limited, I respectfully adopt the statement made by von Doussa J in Re McGorm as one which is applicable by analogy to O 15. Also like Beaumont J, I consider that that statement must be read subject to the qualification enunciated by Lord Diplock in Lonrho Limited v Shell Petroleum. The scope of an obligation having been thus fixed, the "reasonable search" requirement serves to delimit the length to which the party having that obligation must go in discharging it and the explanation which must be given in the event that a search is not conducted. 23 Here, Mr Joyce has given an explanation as to why he is unable to discover certain documents once in his "possession, custody or power". Subject to what follows, I am not persuaded that there is any reason to believe that there is any insufficiency in his attestation on that subject. The qualification is this. I consider that, in so attesting, he has not understood the extent of what was entailed by Order 3, especially there is reason to believe that, in relation to documents which "show the reasons for any such payment". That is not in any way to question his honesty. 24 The reasons for that belief are provided by the absence from his supplementary list even of any of the documents referred to in paragraphs 1.1 to 1.3 of Schedule 1 to the notice of motion, read in conjunction with what is stated in [42] of the No 4 judgment. That the authorities in Dubai have seized from him and not returned a range of documents certainly explains why those documents are no longer in his possession or custody but it is not a complete answer as to what might be within his power, having regard to what was said by von Doussa J in Re McGorm. It seems inherently unlikely, for example, that the only copies in the world of the constitution of Eightblue and of the Eightblue Trust deed were seized by those authorities. Rather, there is, as stated, reason to believe that other copies of such documents may be in the power of Mr Joyce. Such documents may, in terms of Order 3, reveal the "reasons for such payment". 25 Paragraphs 1.4, 1.5 and 1.6 of Schedule 1 to the notice of motion were rightly criticised by Mr Joyce who adopted in this regard submissions made on behalf of the other respondents. Further, any document which would fall within paragraph 1.6 would already fall within the terms of Order 3. 26 The vice though is that Mr Joyce does seem to have been labouring not just under an overly narrow understanding of what is a document which would in terms of Order 3, reveal the "reasons for such payment", but also under an overly narrow understanding of all that is entailed in the composite phrase "possession, custody or power". 27 The vice thus revealed would not be remedied by requiring Mr Joyce by way of further and better discovery to furnish a supplementary list with respect to those documents or classes of document listed in paragraphs 1.1 to 1.6 of Schedule 1 to the notice of motion nor even just to confine such a requirement to those set out in paragraphs 1.1 to 1.3. The requirement made by Order 3 is clear enough. What is needed, in my opinion, is an order that Mr Joyce file and serve on the other parties a further affidavit stating whether any of the documents or classes of document referred to in that order are or have been within his power and: (a) to the extent that they are within his power, listing them or, if not so listed, the nature and extent of the search for the same which he has conducted or caused to be conducted and the reason(s) why, having regard to the matters set out in O 15 r 5(3) of the Federal Court Rules he has not listed them. (b) to the extent that they are not within his power, when they were last within his power. 28 I am conscious that Mr Joyce remains unable to leave the United Arab Emirates and that, notwithstanding the facility offered by modern communications, he does not enjoy the same readiness of access to his legal advisers as, for example, does Mr Reed. In default of agreement between the Sunland parties and him, it will be necessary to hear from Mr Joyce and from the Sunland parties as to the time which should be allowed to him to comply with such an order. 29 As to discovery, there was originally also an issue about whether an "unredacted" copy of document PRU.004.013.0009 should be produced to the Sunland parties by Prudentia, Hanley and Mr Reed. That issue resolved itself by a concession made on their behalf and accepted by the Sunland parties in the course of submissions. 30 All other matters raised by the Sunland parties' notice of motion were able to be resolved on the day of hearing either by concession, abandonment or separate order by me. 31 As to costs, even taking into account matters conceded and abandoned, it seems to me that the outcome on the resolution of the remaining issues is such that, as against Prudentia, Hanley and Mr Reed, the Sunland parties should be regarded as having substantially failed. As to Mr Joyce, the Sunland parties have enjoyed mixed success. I have decided to order him to make a further affidavit but the Sunland parties over-reached in their application the extent to which he should be required to do that. Even were I to accept that to achieve such success as they did the Sunland parties had to make an application to the Court, the resulting mixed success would incline me to make no order as to costs insofar as their application related to Mr Joyce. These are but matters of initial impression in relation to costs. I am prepared to hear from the parties on that subject before making any orders in respect of so much of the Sunland parties' notice of motion as related to discovery issues. For the present it is as well to reserve costs, pending submissions by the parties after consideration of these reasons for judgment. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 14 March 2011