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Airservices Australia v Transfield Pty Ltd

Airservices Australia v Transfield Pty Ltd

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Case Copied 1 July 1999 22 min read

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Airservices Australia v. Transfield Pty Ltd [1999] FCA 886
Practice and Procedure - Constitutional Law
(1999) 164 ALR 330, (1999) 92 FCR 200

PRACTICE AND PROCEDURE - Preliminary Discovery - whether Court has jurisdiction to order preliminary discovery under O 15A r 6 - whether a "matter" for the purposes of Ch III of the Constitution - discovery for purpose of determining whether to commence a proceeding - history and purpose of preliminary discovery.

CONSTITUTIONAL LAW - Federal jurisdiction - whether preliminary discovery involves a "matter" for the purposes of Ch III of the Constitution - whether preliminary discovery an incident of judicial power.

Civil Procedure Rules (UK) r 31.16

Federal Court Rules O 15 O 15A r 3 r 6 O 20 r 2

General Rules of Procedure in Civil Proceedings O 32 (Vic)

Supreme Court Rules (NSW) Pt 1 r 14 Pt 3 r 1

Supreme Court Rules (SA) r 60

Supreme Court Rules (WA) O26A

Supreme Court Rules (NT) O 32

Supreme Court Rules (ACT) O 34A

Constitution s 76(ii), s 77(i)

Administration of Justice Act 1969 (UK) s 21

Federal Court of Australia Act 1976 s 59

Supreme Court Act 1981 (UK) s 33

Trade Practices Act 1974 (Cth)

O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 referred to

State Bank of South Australia v Hellaby (1992) 59 SASR 304 considered

In reJudiciary and Navigation Acts (1921) 29 CLR 257 considered

Alphapharm Pty Limited v Eli Lilly Australia Pty Limited (Lindgren J, 24 May 1996, unreported) referred to

Glowatzky v Insultech Group Pty Ltd (Branson J, 2 October 1997, unreported) referred to

Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549 referred to

Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 referred to

Aitken v Neville Jeffress Pidler Pty Limited (1991) 33 FCR 418 referred to

CCA Beverages (Adelaide) Limited v Hansford (O'Loughlin J, 15 November 1991, unreported) referred to

Malouf v Malouf [1999] FCA 284 (FC) referred to

Kirella Pty Ltd v Hooper (1999) 161 ALR 447 applied

McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 referred to

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 referred to

Cardale v Watkins (1820) 5 Madd 18 referred to

Cardile v LED Builders Pty Ltd (1999) 162 ALR 294 considered

Glaxo Wellcome PLC v Minister of National Revenue (1998) 81 CPR (3d) 372 considered

Heimann v The Commonwealth (1935) 54 CLR 126referred to

Re Pyne [1997] 1 Qd R 326referred to

Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel "Alley Cat" (1992) 36 FCR 129 referred to

Pressed Steel Car Co v Union Pacific Railway Co 240 F 135 (1917) referred to

Sinclair Refining Co v Jenkins Petroleum Process Co 289 US 689 (1933) referred to

Wolfe v Massachusetts Port Authority 319 NE 2d 423 (1974) referred to

Berger v Cuomo 644 A2d 333 (1994) referred to

Bank of Western Australia Limited v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 886
Decision Date: 01 JULY 1999

CaseChat Overview and Summary

Airservices Australia sought to obtain preliminary discovery from Transfield Pty Ltd under O 15A r 6 of documents relating to tenders submitted by Transfield for the provision of rescue and fire-fighting services to the Department of Defence. The Federal Court was asked to decide whether it had the jurisdiction to order such discovery under O 15A r 6. The central issue was whether the court's jurisdiction was limited to matters involving the establishment of an immediate right, duty, or liability, or whether it could extend to procedures like preliminary discovery that assist in the administration of justice. The court considered the history and purpose of preliminary discovery, which has been recognized as a tool to facilitate proof and the administration of justice. It also examined the power of the court to make rules for practice and procedure under the Federal Court of Australia Act 1976. The court ultimately concluded that preliminary discovery was an incident of judicial power and that the Federal Court had jurisdiction to order such discovery under O 15A r 6. The court dismissed Transfield's motion with costs.

Orders