Abrahams v Qantas Airways Ltd (No.2)
[2007] FMCA 639
•30 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABRAHAMS v QANTAS AIRWAYS LTD (No.2) | [2007] FMCA 639 |
| INDUSTRIAL LAW – Unlawful termination – physical disability – inherent reasons exception. PRACTICE AND PROCEDURE – Practice and procedure – discovery – whether discovery in the interests of the administration of justice – meaning of interests of the administration of justice – other relevant factors – relevance – volume – court book – narrowing of issues – consent – benefit to litigation – vulnerability of litigants. |
| Evidence Act 1995 (Cth), s.56(2) Federal Magistrates Act 1999 (Cth), ss.39(3),45 Federal Magistrates Court Rules 2001 (Cth), rr.1.05,14.01,14.02 Workplace Relations Act 1996 (Cth), ss.659(2)(f) & (3) Workplace Relations Amendment (Work Choices) Act 2005 (Cth) |
| Abrahams v Qantas Airways Ltd [2007] FMCA 634 Compagnie Financiere du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 Cosma v Qantas Airways Ltd [2002] FCA 640 Ingui v Ostara and Anor (No. 2) [2003] FMCA 531 Lee v Smith & Ors [2005] FMCA 1013 Mulley v Manifold (1959) 103 CLR 341 SZBHT v Minister for Immigration [2005] FMCA 622 |
| Applicant: | KEVIN PATRICK ABRAHAMS |
| Respondent: | QANTAS AIRWAYS LTD |
| File number: | PEG324 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 19 April 2007 |
| Date of last submission: | 19 April 2007 |
| Delivered at: | Perth |
| Delivered on: | 30 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Grinceri |
| Solicitors for the Applicant: | Taylor Smart |
| Counsel for the Respondent: | Mr J. Blackburn |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Applicant’s application for discovery be dismissed.
Costs to be reserved, to be argued on a date to be fixed.
FEDERAL MAGISTRATES |
PEG324 OF 2006
| KEVIN PATRICK ABRAHAMS |
Applicant
And
| QANTAS AIRWAYS LTD |
Respondent
REASONS FOR JUDGMENT
The application
In the course of hearing an application by the Respondent for an extension of time in which to file affidavits[1] the Applicant made an oral application for production of documents listed in a Minute of Proposed Order. The Applicant sought that the Respondent produce the following documents:
“1.1 All documents concerning the Respondent’s policy or criteria in effect in 2006 for the redeployment of injured personnel to alternative duties in their pre-injury job classifications;
1.2 All documents relating to the Respondent’s rehabilitation policy for injured workers in 2006;
1.3 Documents indicating the number of Airline Service Operators employed by the Respondent in July 2006 who were engaged in performing modified duties (as referred in paragraph 34 (i)-(iii) of the Affidavit Jackie Storen);
1.4 The Respondent’s Payroll Records showing the nature of payments by the Respondent to the Applicant as at the date of purported termination of the Applicant’s employment (indicating whether the payments were wages, sick leave, other leave or workers compensation).”
1 Abrahams v Qantas Airways Ltd [2007] FMCA 634
The Applicant argued that the documents sought to be produced (at least those in paragraphs 1.1 to 1.3 of the application) were directly relevant to the duties of ASO’s (Airline Service Operators) and would help clarify the Respondent’s practices with respect to the engagement of ASO’s on various duties and its policies with respect to redeployment of injured workers and the duties assigned to them.
The documents sought to be produced in paragraph 1.4 of the application, although not specifically addressed by the Applicant, are obviously relevant to the determination of compensation, that being a remedy sought by the Applicant.[2]
2 Application, form 5A, particular 21.
The Respondent opposes the order sought by the Applicant for the production of documents.
The Respondent opposes the application on the basis that the documents sought to be produced are irrelevant to the question of the Applicant’s particular position and what the inherent requirements of that particular position were, the Respondent’s position being that it did discriminate against the Applicant on the basis of his disability, but saying that it was allowed to do so by reason of the inherent requirements exception in s.659(3) of the Workplace Relations Act 1996 (Cth) (“WR Act”).
The orders sought in paragraphs 1.1 and 1.2 of the Minute of Proposed Order are also opposed on the basis that they are too wide, the request being for “All documents” rather than “All documents relating to” the relevant subject matter. Objection is also taken to paragraph 1.3 it being said that it is unclear as the Affidavit of Jackie Storen referred to does not set out any modified duties, but rather refers to restrictions on the Applicant’s ability to form certain functions. In relation to paragraph 1.4 the Respondent’s Counsel indicated that the Respondent was “quite happy” to provide the documents to the Applicant, and therefore an order was unnecessary.
Legislation
Section 45 of the Federal Magistrates Act 1999 (Cth) (“FM Act”) provides as follows:
“(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2) In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.”
Rule 14.02 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) provide as follows:
“(1) A declaration may be made under subsection 45 (1) of the Act to allow discovery on the application of a party or on the Court’s own motion.
Note Discovery is not allowed in relation to a proceeding unless the Court or a Federal Magistrate declares that it is appropriate in the interests of the administration of justice: see section 45 of the Act.
(2) If a declaration is made, the Court or a Registrar may make an order for disclosure:
(a) generally; or
(b) in relation to particular classes of documents; or
(c) in relation to particular issues; or
(d) by a specified date.”
Interests of the administration of justice
The Court dealt with the phrase “interests of the administration of justice” in Genovese v BGC Construction Pty Ltd[3]. In Genovese the Court said:
“In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258]. ”[4]
and further said:
“In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the [FM] Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court. ”[5]
3 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 (“Genovese”)
[4] Genovese at paras 24-25 per Lucev FM
5 Genovese at para 28 per Lucev FM
Although Genovese was a case concerning transfer of proceedings to the Federal Court under s.39(3)(d) of the FM Act, the consideration of the phrase “interests of the administration of justice” there is apposite in this case.
The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration, and in so doing the Court “must have regard to” whether discovery “will be likely to contribute to the fair and expeditious conduct of the proceeding” and such other matters as the Court considers relevant.
Cases
In Tran v Minister for Immigration[6] this Court rejected an application for discovery in relation to an application to review a decision of the Migration Review Tribunal. Discovery was sought of “voluminous material” estimated to be approximately 1,500 pages.[7] In Tran the Court concluded as follows:
“In the circumstances it would be an improper exercise of this court’s discretion to conclude that it would be in the interests of justice to make a declaration of the kind sought pursuant to s.45 of the Federal Magistrates Act 1999. That section in my view is designed to ensure that only relevant documents are brought before the court, that the process which may or may not occur in other courts of extensive voluminous discovery resulting in a high volume of documentary material, much of which is ultimately not relevant should be avoided to the extent that it is possible in this court.
The section places an onus upon the presiding Federal Magistrate to consider whether it is in the interests of justice to make the appropriate declaration and in my view in exercising that discretion it is important to consider the relevance of the documents sought to be discovered. On the material before me I am not satisfied that it would be in the interests of justice to make the declaration sought in relation to the voluminous material referred to in the various case files. For those reasons the application is refused.”[8]
6 [2004] FMCA 713 (“Tran”)
7 Tran at para 3 per McInnis FM
8 Tran at paras 8-9 per McInnis FM
In Taylor v CGU Insurance Limited[9] this Court had already made a declaration to allow discovery, and was faced with an application for further discovery. The Court held that it was satisfied that “the documents sought to be discovered are relevant at least to the issue of damages and perhaps may be relevant in relation to the capacity of the Respondent to provide the level of two jobs per week to the Applicant”.[10] Accordingly, further tailored orders were made with respect to discovery of certain documents.
9 [2004] FMCA 799 (“Taylor”)
[10] Taylor at para 13 per McInnis FM
In NAQR &Ors v Minister for Immigration[11] the Court said:
“two things are immediately apparent from s.45 of the Federal Magistrates Act and the rule 14.01. The first is that there is a rebuttable presumption in proceedings in this Court that discovery and interrogatories will not be permitted. That is consistent with Parliament’s direction (s.3 Federal Magistrates Act) that the Court should act informally and use streamlined procedures. Secondly, where a Federal Magistrate or a Court decides that interrogatories or discovery should be permitted in a particular case, reference should be made to the relevant rules on discovery or interrogatories in the Family Court or the Federal Court.”[12]
[11] [2002] FMCA 271 (“NAQR”)
[12] NAQR at para 5 per Driver FM
In NAQR the Court also considered the position with respect to migration applications where court books containing relevant documents are usually filed. In that regard the Court said (in the context of an application for interrogatories):
“the alternative course to the delivery of interrogatories is to permit limited discovery. As I have already noted, the court books in these matters contain documents said to be before the RRT in each case and said to be relevant in these applications. I have indicated that I might be prepared to allow limited discovery of any other documents which were provided by the Minister’s Department to the RRT for the purposes of its consideration of the relevant visa applications.”[13]
[13] NAQR at para 15 per Driver FM
In Ingui v Ostara & Anor (No. 2)[14] discovery was ordered on the basis that the parties:
(a) indicated that discovery would narrow the issues;
(b) sought discovery from the other; and
(c) consented to discovery.[15]
[14] [2003] FMCA 531 (“Ingui (No. 2)”)
[15] Ingui No. 2 at para 15 per Brown FM
In SZBHT v Minister for Immigration,[16] the Court was dealing with an application for discovery of all documents, electronic or otherwise in the possession of Minister for Immigration and the Refugee Review Tribunal (“RRT”) containing or relating to country information in respect of Bangladesh”.[17] The purpose of the application was to find information supporting the applicant’s claim that homosexuals faced persecution in Bangladesh, the RRT having found that there was no country information supporting a claim that homosexual people are persecuted in Bangladesh.[18] The RRT was not satisfied that the applicant was in fact homosexual, but that finding was challenged.[19] It was clear that contrary to the RRT’s finding that there was independent country information in a data base maintained by the Immigration Department which showed that homosexuality was not accepted or condoned by society in Bangladesh.[20]
[16] [2005] FMCA 622 (“SZBHT” )
[17] SZBHT at para 3 per Scarlett FM
[18] SZBHT at paras 13 and 19 per Scarlett FM
[19] SZBHT at paras 12 and 49 per Scarlett FMM
[20] SZBHT at paras 14 and 17-21 per Scarlett FM
The Court in SZBHT determined to follow the approach adopted by the Court in NAQR.[21] The Court in SZBHT went on to consider the discretionary nature of the declaration to be made as to the interests of the administration of justice under s.45(1) of the FM Act, and the matters referred to in s.45(2) of the FM Act to be mandatorily considered when deciding whether to make a declaration.[22]
[21] SZBHT at para 33 per Scarlett FM
[22] SZBHT at paras 39-42 per Scarlett FM
The Court determined that an examination of the relevant departmental data base would not produce evidence to support the applicant’s claim that he was in fact homosexual, and would therefore be of “no benefit” in establishing that he might be persecuted in Bangladesh on the basis of his alleged homosexuality.[23] The Court concluded that:
“It will not contribute to the fair and expeditious conduct of the proceedings, and it will not assist the applicant in the long run. If it will not assist, then it is not in the interests of the administration of justice for me to make such a declaration.”[24]
[23] SZBHT at para 47 per Scarlett FM
[24] SZBHT at para 48 per Scarlett FM
In Lee v Smith & Ors[25] the Court set aside an earlier order relating to discovery of medical records (that order initially being made without the benefit of evidence from any medical practitioner) because on the application to set aside the discovery order the medical evidence indicated that there was significant risk of prejudice to the health and well being of a psychiatrically ill party if certain documents were discovered.[26]
[25] [2005] FMCA 1013 (“Lee”)
[26] Lee at paras 11 and 12 per Coker FM
Observation on the cases
In Tran and Taylor the Court clearly arrived at the correct result. However, in both cases it did so adopting an incorrect test, “the interests of justice” rather than the statutorily prescribed “interests of the administration of justice”. It may be that the application of the incorrect test adopted in Tran and Taylor might, in many cases, not result in a different outcome, but it is nevertheless the case that the Court ought to apply the correct test.
In both Tran and Taylor significant emphasis was placed on relevance. Relevance alone cannot be the test. Relevance is the essence of the traditional test for discovery. Traditionally, discovery is confined to the issues on the pleadings, [27] and a party is entitled to discovery of documents related to the issues, meaning that a document is relevant where it may (not must) advance a party’s own case or damage the opponents case, or lead to a course of inquiry which might do so.[28] Thus, documents which might explain the controversy between the parties are discoverable,[29] and documents relevant but otherwise inadmissible in evidence must be discovered.[30] But in this Court traditional discovery is prohibited by s.45(1) of the FM Act, unless the interests of the administration of justice, to be assessed having regard to the fair and expeditious conduct of the proceedings, and any other factor which the Court considers relevant, warrant the lifting of the prohibition. Relevance is clearly therefore a factor in determining whether it is in the interests of the administration of justice to lift the prohibition and may be a factor in determining whether discovery will be likely to contribute to the fair and expeditious conduct of proceedings, and may be an independent factor which the Court considers relevant under s.45(2)(b) of the FM Act. Relevance alone would not however appear to be sufficient to warrant a declaration under s.45(1) of the FM Act and a consequent order under r.14.02 of the FMC Rules for discovery. If documents are irrelevant then it can not be in the interests of the administration of justice that there be a declaration and order for discovery. Furthermore, such documents, because they are irrelevant, are not admissible in evidence, by reason of s.56(2) of the Evidence Act 1995 (Cth).
[27] Mulley v Manifold (1959) 103 CLR 341
[28] Compagnie Financiere du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ
[29] Donaldson v Harris (1973) 4 SASR 299 (“Donaldson”)
[30] Donaldson at 305; Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411 at 416-417 per Burchett J
In NAQR the Court held that there was a “rebuttable presumption” that discovery will not be permitted. More simply, there is a statutory prohibition which may be lifted if it is in the interests of the administration of justice to do so.
In NAQR the Court also appears to have held that interrogatories or discovery if permitted in a particular case, require that reference should be made to the relevant rules on discovery or interrogatories of the Family or Federal Court, as required by r.14.01 of the FMC Rules. That is correct in relation to interrogatories by reason of r.14.01(2) of the FMC Rules. It is however incorrect in relation to discovery. There is no equivalent of r.14.01(2) in rule 14.02, the latter rule relating to declarations allowing discovery. To require reference to the relevant Federal Court Rules or Family Court Rules on discovery would be contrary to the intent of r.1.05(1) of the FMC Rules which requires that the practice and procedure of this Court be governed by the FMC Rules, except where those rules are insufficient or inappropriate in which case the Federal Court Rules or the Family Law Rules 2004 (Cth) or the Family Law Rules 1984 (Cth) may be applied in whole or in part and modified or dispensed with as necessary.[31]
[31] FMC Rules, r.1.05(2). See also r.1.05(3) (which applies particular provisions of the relevant Federal Court Rules and Family Law Rules, but is not relevant to the issue of discovery.)
Summary from the cases
In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:
(a)the relevance of any documents sought to be discovered;[32]
(b)the volume of documents sought to be discovered;[33]
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;[34]
(d)whether discovery would narrow the issues;[35]
(e)whether both parties seek discovery;[36]
(f)whether there is consent to discovery;[37]
(g)whether discovery is “of benefit” in the litigation;[38] and
(h)the effect of discovery on litigants, especially, vulnerable litigants.[39]
[32] Tran at para 13 per McInnis FM; Taylor at paras 8-9 per McInnis FM
[33] Tran at paras 3,8 and per McInnis FM
[34] NAQR at para 15 per Driver FM
[35] Ingui (No.2) at para 15 per Brown FM
[36] Ingui (No.2) at para 15 per Brown FM
[37] Ingui (No.2) at para 15 per Brown FM
[38] SZBHT at para 47 per Scarlett FM
[39] Lee at paras 11-12 per Coker FM
The categories of relevant factors for the purposes of s.45(2)(b) of the FM Act are obviously not closed.
Discovery in this case
In this case the Applicant’s Counsel submitted that discovery ought be granted on the basis that the documents sought were relevant and would assist in clarifying the issues. Little more than that was put, and what was put was not truly addressed to the test as to whether discovery was in the interests of the administration of justice, and how discovery was likely to contribute to the fair and expeditious conduct of the proceedings. The Respondent opposes discovery in relation to paragraphs 1.1 – 1.3 of the Minute of Proposed Order, and in particular, asserts that in the documents sought in the paragraphs 1.1 – 1.3 are not relevant. In order to determine if they are relevant it is necessary to have regard to the Federal Court decisions in Cosma v Qantas Airways,[40] the appeal from Cosma,[41] and Cucanic v IGA Distribution (Vic) Pty Ltd.[42]
[40] [2002] FCA 640 (“Cosma”)
[41] Cosma v Qantas Airways Ltd [2002] FCAFC 425 (“Cosma Appeal”)
[42] [2004] FCA 1226 “(Cucanic”)
Section 659 of the WR Act provides as follows:
“(2) Except as provided by subsection (3) …, an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including one or more of the following reasons:
(f) … physical … disability
(3) Subsection (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned.”
In Cucanic the questions for determination were:
“ . what was the particular position occupied by Mr Cucanic as an employee of IGA?
. what were the inherent requirements of the position?
. was Mr Cucanic, because of his disability, unable to carry out the inherent requirements of the position?”
Cucanic was decided on the provisions of the WR Act in relation to the equivalent 659(2)(f) and (3) prior to amendments to the WR Act under the Workplace Relations Amendment (Work Choices) Act, 2005 (Cth) (“Work Choices Act”). The relevant provisions were identical save as to numbering both before and after the Work Choices Act.
In Cucanic it was held that the particular position of the employee was that of a store person Grade II and “that was “the level or rank” from which he performed his tasks”.[43] In Cucanic the Federal Court said as follows:
“In the instant case, Mr Cucanic’s position was his job. Before his injury, his job was to perform the tasks of a Store Worker Grade II in the dry grocery and general merchandising areas of the distribution centre as an order assembler. His position or job was not the post injury, lighter duties employment, which he engaged in as part of a rehabilitation programme. His “job” or “position” was not any work IGA might find for him to do within his classification without aggravating his back injury. But for the injury to his back, Mr Cucanic would have been expected to continue to perform store worker duties in the dry grocery area for a majority of his working time with the remainder of the time spent in the general merchandising area, performing tasks within the competencies of a Store Worker Grade II. That is what his particular position was …”[44]
[43] Cucanic at para 17 per Marshall J.
[44] Cucanic at para 19 per Marshall J.
In Cucanic the Federal Court held that the “inherent requirements of a particular position refer, at least, to the physical ability to perform the characteristic skill of the employment”,[45] and that in that case it was an essential requirement that the pre-injury position that the employee be able to lift a particular weight and engage in repetitive bending and twisting, those tasks being central not peripheral to the performance of what the employer wanted the employee to do.[46] The decision in Cucanic makes it clear that “the inherent requirements of a particular position or employment are not judged by performance at work modified from that originally performed by an employee to assist his rehabilitation needs”.[47]
[45] Cucanic at para 21 per Marshall J.
[46] Cucanic at para 23 per Marshall J.
[47] Cucanic at para 24 per Marshall J.
Adopting the analysis in Cucanic (which followed the decision in CosmaAppeal which upheld the decision in Cosma) the particular position in this case is the position of ASO with the duties of ASO including the duties that the Applicant is no longer physically able to perform. Those duties are arguably the inherent requirements of the position. Although the evidence in the affidavits of the Applicant and Murphy suggest that there are a variety of duties performed by ASO’s, and that injured ASO’s might perform particular duties, there is no (or no sufficient) evidence that the inherent requirements of the particular position occupied by the Applicant are his post-injury rehabilitation duties rather than his pre-injury duties.
Analysed in the above way the documents in paragraphs 1.1-1.3 of the Minute of Proposed Order do not relate to either:
a)the particular position occupied by the Applicant prior to his injury; or
b)the inherent requirements of the particular position occupied by the Applicant prior to his injury.
Rather, the documents relate to the policies and employment of persons post-injury, that is not in particular positions nor, on the face of it, related to the inherent requirements of any particular positions.
In any event, the Court agrees with the submission of counsel for the Respondent that the request in paragraphs 1.1-1.2 of the Minute of Proposed Order is too wide in relation to its request for “All documents”, and does not limit or relate the request to the issues in dispute, but rather to a potential plethora of injured workers post-injury positions and duties across the entirety of the Respondent’s operations (the request would cover clerks, aircraft engineers and pilots, for example) and the inherent requirements of the positions occupied by those persons, bearing no relationship or resemblance to the inherent requirements of a position occupied by an ASO (let alone the particular position occupied by the Applicant).
The request in paragraph 1.3 of the Minute of Proposed Order is also vague, being a request made by reference to parts of an affidavit (that of Storen) [48] that does not refer to “modified duties”.
[48] The Court, with the agreement of the parties, made reference to a signed copy of an Affidavit of Storan affirmed on 18 April 2007, the Respondent undertaking to file an original as soon as possible.
Finally, in a case where the Application and Response are spartan documents saying little, and the issues are likely to be ascertained from the affidavits filed by both parties, it is not properly possible to finally ascertain what the relevant issues are, and therefore to finally determine to what extent, if any, a declaration of discovery might be in the interests of the administration of justice, until such time as all affidavits are filed. Once that is done it may be that the Applicant can formulate a request for discovery which warrants a declaration.
In summary, a declaration of discovery is not in the interests of the administration of justice at this stage, because:
(a)the documents sought do not appear to be relevant to the Applicant’s particular position or the inherent requirements of that position;
(b)the request is too wide (in relation to paragraphs 1.1 and 1.2 of the Minute of Proposed Order);
(c)the request is too vague (in relation to paragraph 1.3 of the Minute of Proposed Order); and
(d)it is not until the Respondent’s affidavits are filed that it will be finally possible to determine exactly what the relevant issues are.
Conclusion
The Applicant has not persuaded the Court that it ought to make a declaration that it is in the interests of the administration of justice that there be discovery in these proceedings. The Application will be dismissed,[49] with costs to be reserved to be argued on a day to be fixed.
[49] Noting specifically that the Respondent intends to provide discovery in respect to paragraph 1.4 of the Applicant’s discovery application in any event.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 30 April 2007
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