Australian Meat Industry Employees Union v Gibbins, L.N
[1986] FCA 165
•28 APRIL 1986
Re: THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION, ARTHUR BIRD, JOHN KENNETH
BRUNT, WALTER F. CURRAN, BERT HUTCHINS, MAURICE McPIKE, JACK O'TOOLE and
THOMAS BORTHWICK AND SONS (AUSTRALASIA) LIMITED
And: LAWRENCE NOEL GIBBINS, MARLENE JUNE GIBBINS and DALE STEHR BAKER
No. V G99 of 1985
Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.
Evatt J.
Davies J.
CATCHWORDS
Practice and Procedure - application for leave to appeal against interlocutory judgment refusing further discovery - discretion of Court to order general or limited discovery - discovery sought too wide - Court to be satisfied order is necessary - parties retain right to seek order at any time - application refused.
Federal Court of Australia Act 1976 s.24(1A) Rules of Federal Court of Australia O.52 r.10, O.15, rr.8, 11, 13, 15
Adam P. Brown Male Fashions Pty. Ltd. v Philip Morris Incorporated and Another 148 CLR 170
HEARING
MELBOURNE
#DATE 28:4:1986
ORDER
Application for leave to appeal be refused.
Appellants to pay Respondents costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules.
JUDGE1
This is an application for leave to appeal from an interlocutory judgment of Smithers, J. made pursuant to sub-section 24(1A) of the Federal Court of Australia Act 1976 and Order 52 Rule 10 of the Rules of the Court. Leave was refused by the Court on 20 March 1986 and we now set out our reasons for that refusal.
Sub-section 24(1A) provides -
"An appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal"
Order 52 Rule 10 reads as follows -
"10. (1) An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the judgment at the time of its pronouncement or within such further time as that Judge may fix.
(2) Where an application has not been made in accordance with sub-rule (1), any application shall be made by motion on notice in the proceeding, and the provisions of Order 19 shall apply.
(3) An applicant under sub-rule (1) or (2) may present his case and his argument to the Court in writing pursuant to rule 15A."
The interlocutory judgment dismissed a motion by the respondents to the original application (other than the sixthnamed respondent, who is dead, and the eighthnamed respondent, Thomas Borthwick & Sons (Australasia) Limited ("Borthwick")) seeking an order that each of the applicants give further discovery with verification.
The original application was brought by Lawrence Noel Gibbins, Marlene June Gibbins and Dale Stehr Baker (a South Australian farmer) against the Australian Meat Industry Employees Union, ("the Union") Arthur Bird, John Kenneth Brunt, Walter F. Curran, Bert Hutchins, Maurice McPike, Jack O'Toole (officers of the Union) and Borthwick, alleging breaches of Sections 45D(1A) and 45E of the Trade Practices Act 1974 ("the Act")
In their application the first and secondnamed applicants sought declarations including the following:
1. that in breach of s.45D(1A) of the Act the Union in concert with named officers of the Union has engaged and is continuing to engage in conduct for the purpose of, and having or likely to have the effect of preventing or substantially hindering the applicants from engaging in trade or commerce between Australia and places outside Australia or among the States ("such trade").
2. that in breach of s.45D(1A) of the Act named officers of the Union in concert with the Union and with one another have engaged and are continuing to engage in conduct for the purpose and having or likely to have the effect of preventing or substantially hindering the applicants from engaging in such trade.
The thirdnamed applicant sought similar declarations and a further declaration that, in breach of s.45E of the Act, Borthwick, being a person accustomed to acquire goods and services from him, namely livestock for slaughter, had made a contract or arrangement or arrived at an understanding with the Union, which contract, arrangement or understanding contains a provision that has the purpose of preventing or hindering Borthwick from acquiring or continuing to acquire the livestock from him, except subject to a condition as to the manner in which he may supply such goods.
It was claimed by the first and secondnamed applicants, who are carriers, that they had been placed upon a black list by the Union and that Borthwick would not accept livestock which they sought to deliver to it.
The applicants originally sought declarations that the conduct of the respondents was in breach of the Act; orders restraining the respondents from continuing or giving effect to such conduct; and damages. The claim for damages was abandoned not later than 1 July 1985.
The application was dated 24 April 1985 and proceeded by way of pleadings. Affidavits had been filed on behalf of the applicants in support of a claim for interlocutory relief. It became apparent late in 1985 that there was a difference of opinion in respect of documents to be discovered by the first and secondnamed applicants.
The notice of motion seeking further discovery was filed on 4 February 1986 and was heard on 7 February.
Discovery was first given by the first and secondnamed applicants by a list of documents dated 21 August 1985 verified by an affidavit of the first named applicant sworn on 28 August 1985.
On 16 September 1985 Everett, J. ordered, inter alia, that the first to seventhnamed respondents have leave to serve interrogatories for the examination of the applicants within fourteen days of delivery of a supplementary list of documents duly verified.
Pursuant to his Honour's order a list of documents dated and verified on 24 September 1985 was served on behalf of the first and secondnamed applicants and a list of documents dated 15 October 1985 and verified on 17 October 1985 was served on behalf of the thirdnamed applicant.
In a letter dated 1 November 1985 the solicitors for the Union and its officers claimed, inter alia, that documents supporting expenditure by the first and secondnamed applicants were not discovered. These documents were claimed to include "receipts, paid invoices, statements, lease agreements, and vouchers relating to items of expenditure revealed by the tax returns and trading statements". The disclosure of these documents in a further list of documents was requested.
The letter further stated that the list of documents provided by the thirdnamed applicant "is clearly deficient in that it omits those usual business records which, for instance, the first and secondnamed applicants have disclosed. These records include cash receipts and cash payments records, bank statements, tax returns and supporting documents including vouchers, receipts and paid invoices".
By letter dated 12 December 1985 the solicitors for the applicants stated that they did not agree that the List of Documents of the first and secondnamed applicants was deficient in any respect and denied any entitlement to further discovery. The letter went on to state "Without conceding the existence of any such documents, such class of documents are irrelevant to the issues in this proceeding. Further, we regard your request for discovery of such documents as oppressive and a deliberate attempt to embarrass the first and secondnamed applicants and delay the trial of these proceedings". A similar claim was made in respect of the thirdnamed applicant.
April 21, 1986 had been fixed as the date for the commencement of the trial of the application.
Order 15 of the Rules of the Court deals with discovery and inspection of documents. It provides that after a directions hearing, any party may, unless the Court otherwise orders, by notice of discovery filed and served on any other party, require any other party to give discovery of documents (r1).
The Court may, before or after any party has been so required to give discovery, order that discovery by any party shall not be required or shall be limited to such documents or classes of documents, or to such of the matters in question in the proceeding, as may be specified in the order (r3(1)), and that "the Court shall, on application, make such orders under sub-rule(1) as are necessary to prevent unnecessary discovery" (r3(2)).
Rule 8 reads as follows:
"8. Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature of circumstances of the case or from any document filed in the proceeding that there are 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, the Court may order that party-
(a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and
(b) to serve the affidavit on any other party."
Rule 11 provides:
"11. (1) Where-
(a) it appears from a list of documents filed by a party under this Order that any document is in his possession, custody or power;
(b) a pleading or affidavit filed by a party refers to any document; or
(c) it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that any document relating to any matter in question in the proceeding is in the possession, custody or power of a party,
the Court may, subject to any question of privilege which may arise, order the party-
(d) to produce the document for inspection by any other party at a time and place specified in the order; or
(e) to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy.
(2) An affidavit made pursuant to an order under paragraph (1)(e) shall, unless the Court otherwise orders, state whether there are in the document copied any and, if so, what erasures, interlineations or alterations."
Rule 13 is in the following terms:
"13. (1) The Court may, at any stage of any proceeding, order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the proceeding.
(2) Upon production of a document to the Court pursuant to an order under sub-rule (1), the Court may deal with the document in such manner as the Court thinks fit."
Rule 15 provides:
"15. The Court shall not make an order under this Order for filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made."
The appeal in respect of which leave is sought is one in respect of an order made in the exercise of the Court's discretion as to a matter of practice and procedure. The principles governing such an appeal have been stated in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated and Another (148 CLR 170)
Smithers, J., in an extempore judgment, held that the respondents had not made out a case for further discovery, saying, amongst other things, that the discovery sought was far too wide. The width of the applicants' claim for further discovery may be seen from the submission, made by their counsel in applying for leave to appeal, that they were entitled to further discovery from the thirdnamed applicant, in respect of any farming operations carried on by him, even if they related only to such pursuits as cropping, although the question which had given rise to dispute between the parties related to the cartage of livestock to Borthwick's premises in Victoria.
His Honour also said that he was not satisfied, in accordance with Rule 15, that the order sought was necessary at the time when it would have been made.
In relation to the application for leave to appeal we bore in mind particularly that:
(a) the appeal itself is in relation to a matter of practice and procedure,
(b) it relates to further discovery in an application in which the applicants have abandoned their claim for damages,
(c) the Rules of the Court emphasise that discovery and further discovery are subject to the discretion of the Court. This discretion is not to be exercised in favour of discovery unless the Court is satisfied that "the order is necessary at the time the order is made" (Rule 15), and the Court shall, on application under Rule 3, make such orders "as are necessary to prevent unnecessary discovery",
(d) despite the dismissal of the motion of the respondents, they retain the right at any stage of the proceeding to seek an order for particular discovery under Rule 8.
In our opinion, the case was not one in which the Court should have granted leave to appeal. Accordingly, the motion was dismissed with costs.
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