BT (Australasia) Pty Ltd v State of New South Wales
[1996] FCA 352
•20 May 1996
NOT FOR DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 572 of 1995
GENERAL DIVISION )
BT AUSTRALASIA PTY LTD
Applicant
STATE OF NEW SOUTH WALES
First Respondent
TELSTRA CORPORATION LIMITED
Second Respondent
Coram: Sackville J.
Place: Sydney
Date: 20 May, 1996
MINUTES OF ORDER
THE COURT:
Makes the orders attached to the judgment herein.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 572 of 1995
GENERAL DIVISION )
BT AUSTRALASIA PTY LTD
Applicant
STATE OF NEW SOUTH WALES
First Respondent
TELSTRA CORPORATION LIMITED
Second Respondent
Coram: Sackville J.
Place: Sydney
Date: 20 May, 1996
REASONS FOR JUDGMENT
Introduction
In these proceedings I delivered a judgment on 1 April 1996 dealing with certain interlocutory issues arising between the applicant ("BTA") and the first respondent ("the State"). I subsequently published an edited version of that judgment, which briefly explains the background to the litigation. The judgment indicated that a number of other issues, mostly relating to discovery between BTA and the second respondent ("Telstra"), remained to be resolved.
The nature and scope of discovery to be made by Telstra was referred to at the interlocutory hearings on 13 and 21 March 1996. There was further debate at the hearing of 1 April
1996, when the outstanding matters were stood over to be dealt with on 8 and 9 May 1996.
The April Short Minutes
On 1 April 1996, Mr Garnsey QC, who appeared with Mr Margo and Mr Dicker for BTA, prepared detailed draft short minutes reflecting BTA's position. Among other things, these set out the categories of documents BTA sought from Telstra by way of discovery. The draft short minutes included two schedules. Schedule 1 identified categories of "high level documents" that BTA sought by way of discovery, in relation to what have been described as the market and competition issues raised by the amended statement of claim filed on 20 October 1995. The term "high level documents" was defined as follows:
"reports, analyses, surveys, plans, business plans, studies, feasibility studies, strategy or policy documents, manuals, forecasts, assessments, registers, submissions, schedules or similar documents, including documents in electronic format, which aggregate or summarise information or data".
Another key definition in the draft short minutes was that applicable to the term "initial personnel". This definition listed nine specific categories of employees employed by Telstra after 1 April 1991.
The significance of the definitions in the April short minutes is that the minutes limited the scope of Telstra's discovery on market and competition issues (subject to any further order of the Court) by reference to "high level documents which are or were during the period [after 1 April 1991] in the possession or custody of any of the 'initial personnel'". The principal object of limiting discovery in this way, as explained by Mr Garnsey, is to make Telstra's formidable task more manageable and, therefore, speedier and less expensive.
Schedule 2 to the April short minutes identified the categories of documents sought by BTA from Telstra in relation to general issues - that is, other than market and competition issues. BTA's position at the hearing on 1 April 1996 was that this schedule significantly reduced the burden of discovery that Telstra otherwise would have to meet. For example, Schedule 2 defined certain categories of discoverable documents by reference to a specified list of New South Wales Government Agencies. Others were defined by reference to documents generated or held by named employees of and consultants to Telstra.
The May Short Minutes
At the hearing on 1 April 1996, the debate concerning the scope of discovery by Telstra was not completed, although some issues were aired. I made a number of directions, designed to ensure that the outstanding issues could be dealt with in the two days of hearing time available on 8 and 9 May 1996. The legal representatives also indicated that discussions would take place with a view to narrowing the issues between them.
On 8 and 9 May 1996, Mr Margo and Mr Dicker appeared for BTA. Mr Stevenson appeared for Telstra.
Mr Margo handed up an amended set of draft short minutes. He explained that many of the amendments to the draft were intended to meet objections stated or foreshadowed on behalf of Telstra in their submissions and at the earlier hearings. In my opinion, the amended short minutes have been extremely helpful in narrowing the areas of dispute and, ultimately, in allowing the outstanding issues to be resolved, whether by agreement or by a ruling.
One important amendment incorporated in the May short minutes (as I shall describe them) concerns the definition of "services". This term is significant, since Schedule 1 identifies categories of discoverable documents by descriptions which incorporate reference to Telstra's "services". The May short minutes incorporate a narrower definition than that which had previously been adopted:
"'services' means those services or products which are or were during the period the subject of a tariff published in Telstra's Basic Carriage Services Tariff Book but does not include an excluded service and 'service' bears a corresponding meaning."
It is not necessary for present purposes to set out the definition of "excluded service".
The Issues
At the outset of the hearing on 8 and 9 May 1996, counsel for BTA and Telstra identified a substantial number of issues requiring resolution. In substance these were the following:
Schedule 1 (Market and competition Issues)
Whether the definition of "services" should be modified, inter alia, to exclude (as Telstra contended) international telecommunications services and to alter the definition of "excluded service".
Whether the definition of "initial personnel" should be narrowed, so as to be confined (as Telstra contended) to only three specified categories of Telstra employees.
Telstra took issue with certain paragraphs of Schedule 1, substantially on the ground that those paragraphs sought documents which were irrelevant to issues pleaded, were "fishing" exercises or were otherwise oppressive.
Whether, in addition to the documents specified in Schedule 1, Telstra should discover (as BTA contended) 32 categories of documents identified or referred to in affidavits filed on behalf of Telstra in connection with the interlocutory proceedings.
Schedule 2 - Non-Market and Competition Issues
Whether Telstra (as it contended) should be entitled to postpone discovery on these issues until after BTA put on statements of evidence in support of its pleaded case.
Whether Telstra (as it contended) should simply give general discovery on non-market and competition issues, or whether discovery should be undertaken by reference to the categories of documents identified in Schedule 2.
Telstra took issue with certain paragraphs of Schedule 2, on grounds of relevance or oppression.
Whether, under the Evidence Act 1995 (Cth), Telstra is entitled to claim legal professional privilege in respect of documents discovered by it, by reference to the "dominant purpose" test, or whether the correct approach is to apply the common law "sole purpose" test.
Other
Whether, as BTA urged, Telstra should be required to file and serve affidavits describing certain data bases said to be maintained by Telstra.
Resolution of the Issues
It is to the credit of both parties that they were able to reach agreement - or at least a position where there was no substantial dispute - on many issues. Others were narrowed to the point where the only contest related to relatively minor matters of drafting. On issues where the parties were in dispute, I took the course of making rulings, in some cases expressed to be tentative, in the course of the hearing. While this meant that only brief reasons were given, it allowed the parties to see the outcome, or likely outcome, of the interlocutory matter in dispute. I indicated that I would state my rulings, in summary form, in this judgment. I now do so, adopting the same numbers that I have used to identify the issues.
Services
The definition of "services" in the May short minutes excludes a number of identified services that BTA accepted were likely to be of peripheral relevance to the various markets pleaded in the amended statement of claim. The excluded services include, for example, security alarm services, emergency services, directories, Telstra Mobile and Telstra Internet. However, these services are to be excluded (if the approach in the short minutes is to be adopted) only if Telstra supplies a statement in writing, in respect of each service, setting out the following information for each relevant financial year:
the revenue derived by Telstra from that service;
whether Telstra competed with any other supplier in relation to that service and, if so, when competition commenced and the names of the largest two suppliers;
insofar as Telstra is aware, the proportion of the total market supplied by Telstra for that service in Australia; and
insofar as Telstra is aware, the barriers or potential barriers limiting the provision of that kind of service by new or existing suppliers.
At the hearing, BTA agreed that six specified kinds of services should be excluded from the definition of "services", without the need for Telstra to supply a written statement of the kind to which I have referred. For its part, Telstra agreed that a statement in writing should be provided for most, but not all, the remaining excluded services. Telstra disputed whether the statement to be provided by it should include the information in sub-paragraph (iv) above.
I expressed the view at the hearing (Ts.104-105) that, subject to the debate concerning sub-paragraph (iv), Telstra should provide a written statement in respect of all excluded services (other than the six specified services BTA agreed did not require a statement). Mr Stevenson contended that some of the excluded services were of such peripheral relevance that a statement was unnecessary. However, the evidence did not clearly establish that this was the case. Moreover, there was nothing to suggest that a requirement that Telstra provide a statement would impose a burdensome obligation or one that would delay the proceedings. If a particular service is of peripheral relevance to the issues pleaded, that will emerge clearly from the written statements to be provided by Telstra. It was not contested by Mr Stevenson (leaving sub-paragraph (iv) aside) that Telstra had the required information available.
In my view (see Ts.104) the written statement to be provided by Telstra should not include the information specified in sub-paragraph (iv). Sub-paragraphs (i) to (iii) cover factual information that Telstra could be expected to have readily available. Sub-paragraph (iv), by contrast, requires Telstra to form judgments about a variety of matters, including legal standards about which there could be considerable debate. For this reason, I conclude that sub-paragraph (iv) should be excluded from the written statement to be provided by Telstra.
The parties ultimately accepted a regime relating to international telecommunications services provided by Telstra. In substance this provided for Telstra to supply a statement to BTA setting out the information referred to in sub-paras. (i) - (iii) above.
Initial Personnel
The parties ultimately agreed that the definition of "initial personnel" should include, in substance, the nine categories of employees identified the May short minutes. Minor disputes relating to the drafting of sub-paragraphs (h) and (j) of the definition were resolved by my adopting Mr Stevenson's suggested amendments (Ts.86-87).
Particular Objections to Schedule 1
The amended statement of claim pleads that Telstra, at all material times, had a substantial degree of power, within the meaning of s.46 of the Trade Practices Act 1974 (Cth) in each of 22 identified markets. These include, for example, the market for the supply and acquisition of telecommunications services in Australia (para.26(b)(i)) and the market for the supply and acquisition of telecommunications services to and by large users of such services, including government, in Australia (para.26(b)(v)). BTA alleges that Telstra knew that BTA had successfully tendered for the implementation and operation of a telecommunications network for the New South Wales Public Sector and that BTA had entered into a written contract with the State (the "TDN Agreement") for the provision of certain telecommunications services. It further alleges that Telstra engaged in conduct calculated to prevent BTA performing its obligations under the TDN Agreement and to discourage agencies of the New South Wales Government from entering into arrangements with BTA. By this conduct Telstra is said to have taken advantage of its market power in each of the markets alleged, for the purpose, inter alia, of eliminating or substantially damaging BTA as a competitor.
At a relatively early stage in the proceedings, Telstra sought further and better particulars of the circumstances relied on by BTA to support the allegation that Telstra is and has been a corporation with a substantial degree of power in each of the markets. Among other responses, under the heading of "Barriers to Entry", BTA supplied the following further particulars:
"(c) the supply to consumers of telecommunications services has required:
(i)a high level of capital investment;
(ii)a high level of, or access to a high level of, technical expertise;
(iii)and involved a long lead time between the actual supply of such services and the initial implementation of a decision to engage in the supply of such services;
(iv)a very large customer base, so as to achieve economies of scale;
(v)overcoming customer inertia entrenched over a long period in favour of existing suppliers;
(vi)the ability to conduct market wide advertising campaigns to counter marketing by existing suppliers and/or price confusion in the market created by existing suppliers".
BTA's objections to particular paragraphs of Schedule 1 fall into two principal categories:
(i)some paragraphs seek documents falling outside the case as pleaded and particularised; and
(ii)in certain instances, BTA is engaged in a "fishing expedition" or otherwise seeks material that it would be oppressive for Telstra to provide.
As Wilcox J. observed in Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78 (FCA), at 82:
"[t]here is a general principle against allowing discovery for the purpose of 'fishing', that is so as to allow a party who can demonstrate nothing to support an allegation, access to the documents of the opposing party in the hope of discovering some such support."
In that case, the Court refused to make an order for discovery of documents showing the basis of assessments by the Commissioner. The Court took this course because there was no ground for suspicion that the assessments were not genuine estimates by the Commissioner of the applicant's liability to tax (at 86). In WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 (FCA/FC), discovery was refused in relation to an unsubstantiated allegation that the Chairman of the Trade Practices Commission had no reason to believe matters specified in s.155(1) of the Trade Practices Act 1974 (Cth) (relating to the conditions for the giving of a notice requiring information to be furnished): see at 181-182, per Brennan J; at 190-191, per Lockhart J.
It is not, however, necessarily easy to determine whether discovery amounts to a fishing expedition. In Trade Practices Commission v CC (NSW) Pty Ltd (unreported, FCA, 2 August 1995) Lindgren J. said this:
"What does the reference to a 'fishing expedition' mean? After all, ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware (similarly, the administering of interrogatories will often, if not always, reveal information of which the other party was not previously aware). What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists: ... In W.A. Pines Pty Ltd v Bannerman, supra, at 181, Brennan J. said that what is required is that 'sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery.' On the facts of particular cases, the application of the distinction between 'fishing' and 'non-fishing' may well be difficult."
In the present case, it is important to note that the threshold allegation made by BTA is that, at the material times, Telstra was a corporation with a substantial degree of power in each of the markets specified in para.26 of the amended statement of claim. I did not understand Mr Stevenson to suggest that this allegation was one in respect of which it could be said that there was no evidence to support BTA's case. On any view of it, Telstra is a major player with significant power in at least some markets. Whether any or all of the allegations in para. 26 are made out is another matter. But I do not think it can be said that there is no ground for suspicion that the allegations are true. Of course, there is, at present, little evidence to support certain particulars provided by BTA in support of its principal allegations. However, that does not seem to me necessarily to produce the result that documents sought by reference to the particulars are to be regarded as the subject of a fishing expedition. It is material, in my opinion, to take account of the circumstances, including whether the party
seeking discovery can reasonably ascertain the information from other sources available to it.
In the course of argument debate took place on a number of the paragraphs in Schedule 1. In this judgment I merely summarise the conclusions I have reached.
Para. 2.3
The documents sought, which relate to price cap regulation, are relevant to the case as pleaded. In my opinion, the paragraph does not fall foul of the "fishing expedition" principle (Ts.28).
Para. 2.8
The documents sought, which relate to Telstra's beliefs about the effect of frequent amendments to tariffs, are relevant to the case pleaded, in particular to the question of Telstra's alleged domination of identified markets (Ts.32-33). No objection was made on grounds of oppression.
Para. 2.10
The documents sought, which relate to attempts by Telstra to discriminate in favour of large customers or against competitors relying on Telstra services, are relevant to the allegations concerning Telstra's dominance in particular markets. They do not constitute a fishing expedition. There is no evidence of oppression (Ts.36-37).
Paras. 2.11 - 2.12
The documents sought relate to any policy pursued by Telstra of "locking in" its customers. This is relevant to allegations of dominance in specific markets. I do not regard the paragraphs as constituting fishing expeditions. No evidence of oppression was adduced (Ts.39-40).
Para. 2.13
The documents sought are those showing the level of returns derived by Telstra from investments in Australia. These documents are relevant to the issues pleaded and should be discovered (Ts.41).
Para. 2.14
This falls into the same category as other paragraphs already dealt with (Ts.41-42).
Para. 3.3
Mr Stevenson indicated that documents within this category would be discovered (Ts.42).
Para.4.2
As formulated in the May short minutes, this paragraph sought documents evidencing "restrictive conditions" imposed by Telstra upon "competitors" to its "essential facilities". The paragraph listed four sub-categories of documents. Telstra objected that several key terms were not defined and that, in any event, there was no dispute that Telstra controlled access to the Customer Access Network ("CAN"), one of the key facilities.
BTA redrafted para. 4.2 to include definitions of "essential facilities", "competitors" and "restrictive conditions". Taking into account these definitions, I think that the documents sought are relevant to the allegation that Telstra has substantial power in the markets pleaded. The fact that Telstra is prepared to admit that it owns CAN does not, in my view, render the categories of documents sought unnecessary or in the nature of a fishing expedition. It is true that a regulatory regime is in place, but Telstra's conduct in relation to the matters identified in para. 4.2 is, in my view, nonetheless relevant to the pleaded case. No suggestion of oppression was made by Mr Stevenson.
Para. 4.6
The documents sought under this paragraph concern any excess capacity held by Telstra in relation to Telstra's major transmission and switching facilities. I regard them as in a similar position to other documents bearing on Telstra's power in particular markets (Ts.44-45).
Para. 4.7
These documents concern reports as to whether Telstra can supply additional or different services using existing facilities at little or no additional cost. This category, too, should be dealt with in the same way as other paragraphs (Ts.45) and Telstra should give discovery of the documents sought.
Para. 4.9
This paragraph sought documents evidencing Telstra's knowledge of the difficulties experienced by BTA or other suppliers in designing their networks and obtaining accurate forecasts. In my view, documents so described are insufficiently connected with the issues pleaded to be discoverable (Ts.49-50).
Para.4.12
Mr Stevenson did not object to discovery being given of documents identified in para.4.12(b). Paragraph 4.12(a) sought documents reporting on the impact of a number of matters on Telstra's "freedom of action, performance, profitability or market share". In my view, this sub-paragraph, as framed, is too broad to provide a proper basis for discovery (Ts.55).
Para. 4.13
This paragraph sought documents showing the extent of thirteen of Telstra's activities or resources, expressed in very wide terms. The paragraph as framed is insufficiently related to any of the issues as pleaded (Ts.56-57).
Para. 4.14
This paragraph sought documents showing or referring to Telstra's knowledge of the extent of the barriers to entry to a market faced by its competitors. I think that, to this extent, the documents sought are material to the case as pleaded. However, para. 4.14(b) sought documents referring to Telstra's knowledge of the extent or potential of "any of its competitors' competitive activity". This seems to me to be too broad to be sufficiently related to the pleaded issues. Paragraph 4.14(b) thus should be excised from Schedule 1 (Ts. 57-58).
Para. 4.15
As originally framed, this paragraph sought documents summarising decisions taken by Telstra's senior management which were in response to the activities of "Telstra's top ten major competitors". Mr Margo accepted that para. 4.15 should be confined to documents summarising decisions taken in response to the activities of BTA or its parent company. On this basis Mr Stevenson had no objection (Ts.61, 123, 144).
Para. 4.16
Mr Margo reformulated this paragraph in the course of argument. He confined it to documents describing significant economic advantages to Telstra accruing as a result of it previously having had a monopoly over the supply of telecommunications services in Australia. Limited in this way, Mr Stevenson, as I understood him, had no substantial objection to the paragraph (Ts.63-64, 149).
Discovery of Documents Identified in Affidavits
I do not accept BTA's contention that Telstra should be required to discover the specified 32 categories of documents referred to or identified in affidavits prepared and filed (but not necessarily read) on behalf of Telstra (Ts.91-92). I reject the contention primarily on the ground that, in my view, the orderly course is for discovery in accordance with Schedule 1 to take place before BTA seeks further documents from Telstra. Discovery is likely to result in many of the documents in the 32 categories being identified and produced. To the extent that documents in the 32 specified categories are not discovered, BTA will have the opportunity to seek their production, if it can show that the documents are relevant to issues in dispute between the parties. I take into account the fact that some of the 32 categories are defined very broadly and are likely to include documents that are not otherwise discoverable and to impose a substantial burden on Telstra. No irremediable prejudice will be occasioned to BTA by the course I have adopted.
5 and 6.Discovery and Schedule 2
Some debate took place before me as to whether BTA should be required to put on statements in support of its case on the non-market and competition issues prior to Telstra being required to make discovery. There was further discussion as to whether, assuming BTA should not be required to put on statements at this stage, discovery should take place by reference to the categories of documents specified in Schedule 2, or in accordance with the general principles governing discovery. Curiously enough, BTA (which maintained that Schedule 2 limited the scope of discovery Telstra otherwise would have to make) supported the use of Schedule 2, while Telstra preferred to give general discovery.
In the end, the parties reached substantial agreement on these issues. Telstra agreed to give discovery by reference to Schedule 2 and abandoned its insistence that BTA file statements in advance of the discovery process. BTA agreed to include a provision making it clear that compliance with Schedule 2 was not to impose on Telstra an obligation to give discovery any more extensive than that required by an order for general discovery. Telstra also agreed not to insist, at this stage, upon further and better particulars that had been requested, but to reconsider the request and send any further request within 14 days (Ts. 148).
The Contents of Schedule 2
With minor exceptions, the parties resolved their disputes as to the contents of Schedule 2. BTA amended the wording of a number of paragraphs to accommodate objections raised by Telstra. I made a ruling on the remaining issues (see Ts.154-155).
Legal Professional Privilege
The parties did not dissent from my suggestion that the question relating to legal professional privilege should be addressed at a later stage. I think it preferable that the legal issues be assessed by reference to particular documents in respect of which a claim of privilege is made. In any event, the time available did not permit the argument to be concluded at the hearing on 8 and 9 May 1996.
Affidavits Relating to Telstra's Data Bases
BTA sought an order directing Telstra to file and serve an affidavit by a director or senior executive stating the description and location, inter alia, of main computer data bases containing information which could be used to generate "any kind of report relevant to any of the market and competition issues". The justification put forward in support of such a direction was that the very existence of the data bases was relevant to the proceedings because they demonstrated or illustrated Telstra's power in markets identified in the amended statement of claim.
I do not accept BTA's contention (see Ts.120-122). I take into account the fact that information on the various data bases is discoverable if it is within the categories of documents and information identified in Schedules 1 and 2. I can see no justification for requiring Telstra to provide information concerning its data bases, where this information does not bear on any issue raised by the pleaded case. If, at some stage, there are grounds to suspect that Telstra has not met its obligations in relation to discovery - and I stress that there is nothing before me to suggest anything of the kind - BTA will have remedies available to it.
Costs
Mr Margo submitted that BTA should receive costs of the motions which gave rise to the hearings on interlocutory issues. BTA first filed a motion on 16 January 1996. By an amended motion, filed on 9 February 1996, BTA sought against Telstra orders for discovery of categories of documents relating to market and competition issues. This was the genesis of what later became Schedule 1. The motion also sought general discovery on non-market and competition issues and orders that Telstra provide information by way of affidavits on a variety of topics. For its part, Telstra filed a notice of motion seeking certain orders relating to the form of BTA's discovery. The issues raised by Telstra's motion were resolved relatively early in the piece.
Mr Margo pointed out that Telstra had twice consented to orders for general discovery, in September and October 1995, and had made no application to vacate those orders until after BTA had filed its motions. Mr Margo took me through the correspondence which, he submitted, showed an unwillingness on Telstra's part to co-operate in preparing the case in an orderly fashion. He also pointed out that Telstra had resisted the concept of high level documents as a technique for limiting discovery on the market and competition issues. Moreover, Telstra had maintained, until the last day of the interlocutory hearing, that it should not be required to give discovery on the non-market and competition issues until BTA filed statements of evidence. In substance, Mr Margo argued, Telstra had not been concerned to ensure that the proceedings were prepared as speedily and efficiently as possible, but had adopted a truly adversarial and sometimes obstructionist approach to the interlocutory issues.
I did not understand Mr Margo to suggest - and in any event I do not accept - that Telstra has acted in bad faith. I do think that Telstra could have acted with more alacrity to accept some of the positions put forward by BTA, which ultimately Telstra adopted. This includes acceptance of the key concepts embodied in Schedule 1 and of the appropriateness of Telstra giving discovery in relation to non-market and competition issues prior to BTA providing statements. There are also grounds to criticise Telstra for its failure, on occasions, to comply with directions given by the Court concerning the conduct of the interlocutory hearings. Telstra's non-compliance undoubtedly imposed an additional burden on BTA's legal representatives, who sometimes had to respond to a considerable volume of fresh material at short notice. It is also true that BTA had the primary carriage of the interlocutory proceedings, in the sense that it put forward very detailed and carefully thought out proposals which, in my view, were intended to confine the scope of discovery. It is fair to say that BTA was meticulous in its compliance with directions in proceedings that are very complex, and could easily have become unmanageable.
Mr Stevenson submitted that the costs should be costs in the cause. Despite the disputes as to the nature and scope of discovery, the process was continuing at a rapid rate and had not been delayed by the interlocutory disputes. An interim regime had been agreed between the parties and Telstra had discovered in the order of 35,000 to 40,000 documents. On some issues BTA had succeeded, but on others Telstra's position had been adopted, whether by agreement or by a ruling. Sensible compromises had been reached on many disputed issues and these had paved the way for the orderly conduct of the litigation.
While I do not think that all of Mr Margo's criticisms of Telstra's conduct are well-founded, there is force in his submission that Telstra should bear at least some of BTA's costs of the motions. On balance, however, I think that the appropriate course is that the costs should be costs in the cause. The regime ultimately adopted reflects not only rulings, but compromises made by each side, in a genuine attempt to ensure the orderly conduct of a massive and complex task. Had the proceedings been significantly prolonged by Telstra insisting on positions that it ultimately departed from, I might well have taken a different view. But, having regard to the difficulty and complexity of the issues to be addressed, I cannot say that Telstra's approach substantially increased the hearing or preparation time required to dispose of the considerable volume of issues. On issues that were contested, each side succeeded on some and failed on others. I have also taken into account that much of the burden of preparing documentation, such as draft short minutes, fell on BTA. However, it is as much in BTA's interests that Telstra's discovery be kept within manageable bounds as it is in Telstra's interests.
Accordingly, I think that the costs of the motion should be costs in the cause.
Orders
I attach the orders that I think should be made. They follow in large measure the May short minutes, adopted to reflect rulings made by me and variations agreed by the parties. I have listed the matter for further directions on 29 May 1996. At that time I shall give the parties an opportunity to draw to my attention any errors or omissions in the orders.
I certify that this and the preceding 24 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.
Associate:
Dated:20 May, 1996
Heard:8 and 9 May, 1996
Place: Sydney
Decision:20 May, 1996
Appearances: Mr R.F. Margo and Mr M.C.L. Dicker, instructed by Middletons Moore & Bevins, solicitors, appeared for the applicant.
Mr J.W. Stevenson instructed by Blake Dawson Waldron, solicitors, appeared for the second respondent.
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