Attorney-General of the Commonwealth v Davids Holdings & anor QIW Retailers v Davids Holdings P/L & ors

[1992] FCA 829

NO DISTRIBUTION

JUDGMENT NO. ....-mm g 2 " j .S .r.... .. 72

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION	No. G575 of 1992
BETWEEN:

ATTORNEY-GENERAL OF THE COMMONWEALTH

AD~licant

AND:

- DAVIDS HOLDINGS PTY. LIMITED

First Resoondent

@Q:  QIW RETAILERS LIMITED

IN THE FEDERAL COURT OF AUSTmIA
QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN :

QIW RETAILERS LIMITED ACN 010 610 018

m:	DAVIDS HOLDINGS PTY. LIMITED ACN 000 031 569
& ORS.

MINUTES OF ORDER

JUDGE MAKING ORDER:	Cooper J.
WHERE MADE:	Brisbane  16 NOV 1992
3 O S & b w
DATE OF ORDER:	-&er,  1992 AuSTRAUA PRINCIPAL

REDISTRY

THE COURT ORDERS:

3.	That the final report contemplated by the facsimile

1.        That such documentation as exists for the leased premises at Virginia and Toowoomba is to be made available for inspection by Tuesday 3 November, 1992.

2.        That inspection be given of the minutes of meeting of the directors of Davids Distribution Proprietary Limited, which minutes disclose the name of the company, the persons present, the relevant items of discussion being items relevant to the issues raised in these proceedings, and the time the meting commenced and concluded if such latter information is disclosed in the minutes.

I	be produced for inspection, if it exists, by Tuesday	3 November, 1992, otherwise an affidavit be filed
deposing as to the reasons for non-production.
Otherwise, application dismissed.
I reserve the question of costs until 4 November, 1992 having regard to the hour of the day.

m:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION	No. G575 of 1992
BETWEEN:

ATTORNEY-GENERAL OF THE COMMONWEALTH

Applicant

AND:  DAVIDS HOLDINGS PTY. LIMITED

First Respondent

m:  QIW RETAILERS LIMITED

Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION	No. G3012 of 1992
BETWEEN :

QIW RETAILERS LIMITED ACN 010 610 018

m:	DAVIDS HOLDINGS PTY. LIMITED ACN 000 031 569
& ORS.

Respondent

CORAM:	Cooper J .
PLACE :	Brisbane

lio Qcjsbw

m:  -, 1992

EXTEMPORE REASONS FOR JUDGMENT

This is an application for further and better discovery, or alternatively, for an affidavit stating whether documents of the kinds or classes referred to in a letter from Clarke and Kann to Allen, Allen and Hemsley dated 14 October, 1992, and in the affidavit of Terence John McBride filed herein, are or have been in their possession, custody or power, and if such documents or classes of documents have been, or are not now in their possession, custody or power when they parted with them, and what became of them.

The first to tenth respondents have filed a supplementary affidavit of documents on oath. It is sworn to by an officer of the companies and by a partner of the solicitors for the respondent.

In terms, it deposes that there are no further discoverable documents which have not been discovered. Unless there is clear evidence as to the existence of other documents which are relevant and not discovered, or that the deponents have misconceived the issues raised in the proceedings, I do not intend to go behind the supplementary affidavit of documents. Some objection was taken that certain categories of documents. For example, monthly reports of various types have been discovered for some months and not others, and the absence of those not discovered has not been specifically accounted for on oath.

This matter has to be placed in context. A1 l discovered to date. Litigation has proceeded under a tight	parties are agreed that voluminous documents have been
timetable because of the commercial urgency attaching to the matters in issue. There has not been, until now, any insistence that the precise niceties of compliance with the rules as to discovery in all detail be complied with because of the broader perception that the important matter was to get the trial heard. It is now too late, in my v i e w , to xequire

strict and precise compliance with the rules as to discovery.

I am not satisfied that it has been demonstrated
that there has been a wilful failure on the part of the

respondents to discharge their obligations to make discovery.

I turn to the categories.

Catecrorv 1

Such documentation as exists for the leased premises at Virginia and Toowoomba is to be made available for inspection by Tuesday 3 November, 1992. Otherwise I am not satisfied that any further order is necessary.

Cateaorv 2
Paraara~hs (a). Ib) and (e) of Counsel's outline - It is said
that such documents that exist have been discovered, and that
the assumptions as to other documents being in existence as

contended for by the applicant are incorrect.

In those circumstances, I do not propose to order

further discovery, nor that an affidavit be filed beyond the
supplementary affidavit of documents.

Paraara~h (£1 - I am not satisfied that the financial position of Davids Group operations outside Queensland has been demonstrated as an issue raised on the pleadings, or relevant to any issue raised in the form in which it is presently pleaded. I do not intend to order discovery of such

documentation. My refusal , however, is without prejudice to the application being renewed before the trial judge on the basis of demonstrable relevance being shown at that time.

Cateaorv 5

The documents sought are based on an assumption or inference being drawn that the documents exist, because :-

(a)	a prudent businessman would consider such matters, and
(b)	because a financial adviser is named in the Part A statement and offer.

The respondents say that such documentation does not exist. The companies are private companies, and there is no evidence as to the type of financial advice being given.

Although it is likely that the matters raised would be discussed and thought about, it does not necessarily follow that such processes would necessarily result in the production of documents beyond those already discovered.

I do not propose to go behind the supplementary

affidavit of documents in this regard.

cateaorv 9

It is stated that so much of the reports as exist have been discovered, and the files identified. The complaint is that there has been no accounting for documents of the same character, in terms of explaining on oath where the documents

are or what has become of them.

I am told that such documents from each category as can be found have been found and discovered; the others cannot be found. I do not intend to require that this be further deposed to having regard to the contents of the supplementary affidavit of documents.

Cateaorv 10

I order that inspection be given of the minutes of meeting of the directors of Davids Distribution Proprietary Limited, which minutes disclose the name of the company, the persons present, the relevant items of discussion being items relevant to the issues raised in these proceedings, and the time the meeting commenced and concluded if such latter information is disclosed in the minutes.

Cateaorv 11

A draft report, on its face, indicates that it was

from "Davids Distribution Planning Group". The draft report

report would be provided shortly. The reasonable inference is	is under cover of a facsimile which indicates that a final
that such a report would, in the ordinary course of events, have been forthcoming. The draft report relates to the possible integration of Davids and QIW Operations. It is, therefore, relevant.

THE COURT ORDERS:

1.        That such documentation as exists for the leased premises at Virginia and toowoomba is to be made available for inspection by Tuesday 3 November, 1992.

2.        That inspection be given of the minutes of meeting of the directors of Davids Distribution Proprietary Limited, which minutes disclose the name of the company, the persons present, the relevant items of discussion being items relevant to the issues raised

in these proceedings, and the time the meting commenced and concluded if such latter information is disclosed in the minutes.

3.        That the final report contemplated by the facsimile be produced for inspection, if it exists, by Tuesday 3 November, 1992, otherwise an affidavit be filed deposing as to the reasons for non-production.

4.        Otherwise, application dismissed.

5.        I reserve the question of costs until 4 November, 1992 having regard to the hour of the day.

I am not satisfied that the exhibit "TJM7" to Mr. McBridels affidavit discloses the existence of document6 beyond those already discovered. In all of the circumstances, the application is, save for the orders which I have indicated above, dismissed.

I certify that this and the five (5) preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Cooper. ,	,
Date:	4 November, 1992

AB La e

Counsel for Attorney-General:	R.W. ~dtterson QC and M. Walton
Solicitors for Attorney-General :	Au s t r a l i a n  Government
Solicitor
Counsel for Davids Holdings:	C.  Sweeney Q. C. , P.
Morrison Q.C., J. O'Shea
Solicitors for Davids Holdings:	Allen Allen h Hemsley
Counsel for QIW:	J. Muir P.C., G.A. Thompson
J  . McKenna
Solicitors for QIw:	Clarke & Kann
Date of Hearing:	2 November, 1992, Brisbane.