Century v THLD (No 3)

[2000] NSWSC 428

CITATION:	Century v THLD (No 3) [2000] NSWSC 428
FILE NUMBER(S):	SC 50042/1998
HEARING DATE(S):	19/05/00
JUDGMENT DATE:	1 June 2000
PARTIES :	Century Medical Inc - Plaintiff THLD Limited - First Defendant Medical TPLC Pty Limited - Second Defendant TPLC Pty Limited - Third Defendant Telectronics Pacing Systems Inc - Fourth Defendant TPLC Incorporated - Fifth Defendant Nucleus Limited - Sixth Defendant Pacific Dunlop Limited - Seventh Defendant
JUDGMENT OF:	Rolfe J

COUNSEL :	Mr L.G. Foster SC - Plaintiff Mr T.J. Walker - Defendants
SOLICITORS:	Blake Dawson Waldron - Plaintiff Freehill Hollingdale & Page, Melbourne - Defendants
CATCHWORDS:	Leave to Re-Open Judgment Before Order Passed and Entered - Leave granted. - Discovery: Application of the definition of "relevance" in Part 23 rule 1(d) to the balance of the Part and Application in cases where documents give rise to a train of inquiry.
CASES CITED:	National Australia Bank Limited & Ors v Idoport Pty Limited & Anor (2000) NSWCA 8 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 Auto Desk Inc & Anor v Dyason & Ors (1993) 176 CLR 300 Mulley v Manifold (1959) 103 CLR 341 at p.345 Idoport Pty Limited & Anor v National Australia Bank Limited & Ors (1999) NSWSC 1026 Lakatoi Universal Pty Limited & Ors v Walker & Ors (Rolfe J - 31 July 1998 - unreported) Compagnie Financiers du Pacifique v Peruvian Guano Co (1882) XI QBD 55 at p.63 Dubbo Base Hospital v Jones [1979] 1 NSWLR 225
DECISION:	Leave granted to re-open. I stand the matter over to Friday, 9 June 2000. I invite the plaintiff to bring in Short Minutes of Order on that day to give effect to these reasons and I shall hear argument on the question of costs of the matters thus far argued.

29

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

ROLFE J

THURSDAY, 1 JUNE 2000

50042/1998 - CENTURY MEDICAL INC v THLD LIMITED & ORS (NO 3)

JUDGMENT

HIS HONOUR:

Introduction

1    These are large and complicated proceedings in the Commercial List in which the plaintiff claims damages of some $50m against the defendants. They are still in the interlocutory stage, notwithstanding that they were commenced in April 1998, and there have been, since then, a number of hard fought interlocutory applications. This is another and it is concerned with discovery.

2    On 7 April 2000 the plaintiff, for which Mr L.G. Foster of Senior Counsel appears, filed a Notice of Motion seeking certain relief in respect of discovery. It came before me on 14 April 2000 when the parties agreed that I should deal with portion of it only. On 19 April 2000 I delivered my reasons for judgment, concluding:-

“38. In dealing with the contentious issues before me I have set forth my views as to the extent of discovery. As I understood it, the parties propose to act conformably with these opinions. If necessary formal orders can be made.
39. I propose that the balance of the plaintiff’s Notice of Motion and the defendants’ Notices of Motion stand over to Friday, 19 May 2000. I shall then consider the question of costs of the matters thus far argued.”

In the events which occurred, and to which I shall refer, I was not asked to and did not make any orders.

3    The contentious matters with which I dealt in those reasons arose, essentially, from paragraph 1 of the Notice of Motion, which sought an order in the following terms:-

“1. The defendants provide discovery of documents falling within categories 8, 9, 10, 12, 13, 15 and 19 of the document entitled ‘Categories of Documents to be Discovered by the Defendants served on the defendants on 16 September 1999, annexed hereto and marked “A”’.”

The annexure was headed in the manner referred to in the Notice of Motion and set out the “Category Description” of the documents in respect of which discovery was sought.

4 On 28 April 2000 my Associate received a letter from Mr T.J. Walker of Counsel, who appears for the defendants, referring to my reasons, enclosing a copy of the judgment of the Court of Appeal in National Australia Bank Limited & Ors v Idoport Pty Limited & Anor (2000) NSWCA 8, and stating that that decision was brought to his attention after the hearing of argument on 14 April 2000 and that a copy of the letter and the decision had been forwarded to Mr Foster.

5    On 12 May 2000 the solicitors for the defendants wrote to my Associate. They referred to my reasons of 19 April 2000 and the letter from Mr Walker, stating that Mr Walker had advised them that he had taken it upon himself to send the letter without reference to them “in consequence of relevant Rules of Conduct applicable to the citation of relevant authority”. The letter continued:-

“There has been some confusion between ourselves and the plaintiff’s lawyers concerning the purpose of sending this decision to His Honour. For the avoidance of doubt, it is the defendants’ desire that the Court reconsider the reasons stated in the judgment published on 19 April 2000 in light of the decision of the Court of Appeal.
Unless the Court requires otherwise, the defendants do not propose to submit any further material to the Court or to apply for leave to re-open the argument.”

The Defendants’ Application To Re-Open

6 It seemed to me that in the circumstances the proper course was to bring the matter back before the Court so that, firstly, what the defendants’ were seeking could be articulated in specific terms and, secondly, the plaintiff would have an opportunity to be heard on that application. The matter was listed on Friday, 19 May 2000, and Mr Walker applied for leave to re-open, which Mr Foster opposed. Mr Walker submitted that the decision of the Court of Appeal bore directly on issues I had determined and was contrary to a number of the conclusions to which I had come. A basic submission, which Mr Walker had made, was that although the parties had agreed to the discovery of documents by categories a proper construction of Part 23 of the Supreme Court Rules none-the-less required that any document to be so discovered had to be one “taken to be relevant” within the meaning of rule 1(d). It will be necessary to consider the rules in some detail. The submission continued that it was therefore not appropriate to order discovery merely because a document might give rise to a train of inquiry unless it otherwise met the test of relevance provided by rule 1(d) and, in so far as I had found to the contrary, my reasons are inconsistent with those of the Court of Appeal in Idoport.

7 Mr Foster submitted that there was no warrant for my re-opening the matter to allow further argument. Whilst he conceded the Court has a wide discretion to reconsider a judgment, particularly before an order has been passed and entered, he submitted it is one to be exercised with great caution and that it should not be exercised unless the applicant can show that by accident or without fault on his part he has not been heard: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 and Auto Desk Inc & Anor v Dyason & Ors (1993) 176 CLR 300. He also submitted that there was no inconsistency between my reasoning and the decision of the Court of Appeal in Idoport, and he repeated his submission that the view of the rules for which Mr Walker had contended originally was incorrect.

8    It seemed to me that as I had not made any orders, and as I was satisfied that the decision in Idoport had been overlooked by counsel and myself and, finally, to try to prevent the matter from miscarrying, the appropriate way to exercise the discretion was by granting the defendants leave to re-open and consider the submissions based on Idoport.

9 In so deciding I was also influenced, and this is encapsulated to some extent by my desire to preclude any miscarriage, by the importance of the discovery process in litigation generally and, more particularly, in litigation of the extent and nature of the present. Discovery is an important tool in the proper preparation of cases to ensure that all relevant factual matters are determined in accordance with the available admissible evidence, which may, in many cases, mean evidence deployed to advance a party’s case or to defeat that of the opponent. In considering the intent to which the Court of Appeal referred, in paragraph 7 of the joint judgment of Mason P and Priestley JA, as leading to the amendments to Part 23, which amendments were introduced on 19 July 1996 and are applicable to proceedings commenced on and after 1 October 1996, I shall suggest a further reason for the taking of that course.

10 On various occasions in my reasons of 19 April 2000 I referred to and applied the test stated by Menzies J in Mulley v Manifold (1959) 103 CLR 341 at p.345. Whilst the passage containing it is well known, it bears repetition in the present context. His Honour said:-

“I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues - not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of inquiry which would, either advance a party’s own case or damage that of his adversary.”

11    His Honour recognised that discovery had to be directed to “the matters at issue” for the purpose of obtaining “a proper examination and determination of these issues”. This latter passage pointed up the importance of discovery, to which I have referred. He denied the use of discovery for “a fishing expedition”, and repeated the need for documents to relate “in some way to a matter in issue”: (my emphasis). The use of the words I have emphasised show that the document does not have to establish, in itself, the matter in issue. He added that that would be achieved if the document would, inter alia, lead to a train of inquiry, which would either advance a party’s case or damage that of his opponent. A train of inquiry may well lead a party to admissible evidence to either prove or assist in the proof of a fact relevant to a matter in issue.

12    That statement of principle was applied consistently by Courts in this State from 1959. Subject to any repeal or modification of it by the rules, it remains, as I understand it, a correct statement of the law.

13    The type of error, which Mr Walker suggested infected my reasons, is exemplified, and perhaps most forcefully stated in paragraph 14, where I said:-

“It was further submitted that Part 23 confined the role of discovery more narrowly than the common law: rule 1(d). In my respectful opinion this is not so and the basic common law rules of discovery, as stated in Mulley v Manifold , apply. Thus, in my opinion, where a document would tend to advance either party’s case, or would lead to a chain of inquiry that might have that effect, it is discoverable.”


It was that passage and reasoning of that type, which Mr Walker submitted was contrary to the reasoning in Idoport . This approach was consistent with the submission he made on 14 April 2000, based on the interpretation of the rules for which he contended.

The Decision In Idoport

14 In Idoport the Court of Appeal had before it an application for leave to appeal from the decision of Einstein J in Idoport Pty Limited & Anor v National Australia Bank Limited & Ors (1999) NSWSC 1026. It is unnecessary, for present purposes, to consider all that his Honour said in his reasons. However, I think it helpful, if I may say so with respect, to refer to certain portions of them.

15    After setting forth the terms of the rules, his Honour said in paragraph 12:-

“I accept as correct Mr Dicker’s submission that, although dealing particularly with the relevant provisions of the Federal Court Rules, the following passage is apt to describe the position as it obtains in relation to proceedings in the Supreme Court. That is to say:
‘A document relates to a matter in question between the parties if it is reasonable to suppose that the document contains information which may - not which must - either directly or indirectly enable the party requiring [the production of the document] either to advance his own case or to damage the case of his adversary’ -
Commonwealth v Northern Land Council (1991) 103 ALR 267 at 290, per Black CJ, Gummow and French JJ.
Part 23 Rules 3(b) and (c) of the Supreme Court Rules of course permit the Court, depending upon the circumstances, to require discovery by reference to a wider field of reference. The primary approach must, however, be to ascertain the matters in issue. The exercise of the Court’s discretion to be exercised under the rules involves a balancing of the respective interests of the parties having regard to the issues examined in context .” (My emphasis.)

His Honour referred to the fact that both parties had relied upon the passage in Mulley v Manifold to which I have referred. He quoted a substantial portion of it and, at paragraph 25, said:-

“To my mind the absence of an express pleading to the effect that the AUSMAQ System is an E-commerce system is far from fatal to the plaintiff’s present application for the extended discovery. The primary question is and remains whether the subject discovery seeks production of documents relevant to facts in issue.”

16    At paragraph 36 his Honour cited from my judgment in Lakatoi Universal Pty Limited & Ors v Walker & Ors (31 July 1998 - unreported) in which I said, albeit in a slightly different context:-

“In determining the question of relevance the Court must bear in mind that the parties are entitled to build up an evidentiary mosaic. Generally that cannot be done in complicated commercial litigation by the tender of one piece of evidence or the assertion that only limited material is relevant to the issues involved … The Court should not be astute to find irrelevance at an early stage of proceedings …”

I do not understand either his Honour’s last quoted statement or mine to be controversial.

17    Against this background I turn to the reasons of the Court of Appeal, which rejected the application for leave to appeal. The first, and for present purposes the relevant, complaint made by the applicants was that Einstein J used a legally wrong test in deciding what orders to make.

18    In support of this it was submitted that the test of relevance, which his Honour applied, was that formulated by Brett LJ in Compagnie Financiers du Pacifique v Peruvian Guano Co (1882) XI QBD 55 at p.63.

19    In their joint judgment Mason P and Priestley JA cited that passage and said that it became an accepted formulation of relevance for discovery purposes and was widely used in common law jurisdictions, “sometimes without any consideration being given to its specific context”. Their Honours continued:-

“Until 1996 New South Wales was one of the jurisdictions where it was accepted as applicable to the parts of the Supreme Court Rules dealing with discovery. By that time dissatisfaction had grown with the second sentence in Brett LJ’s statement in which he explained ‘either directly or indirectly’ and introduced ‘the train of inquiry’ idea.”

The dissatisfaction, to which their Honours referred, arose, of course, in a context where the ability to challenge the oath of the party giving discovery was very limited.

20    Their Honours set forth rules 1(d) and 3(1), (2) and (3) and, having done so, said in paragraph 7, in a statement upon which Mr Walker relied greatly:-

“It was intended that the new rules would exclude Brett LJ’s ‘train of inquiry’ idea as a factor in deciding relevance. In our view this was achieved by the definition of relevance in rule 1(d). The ‘train of inquiry’ idea could not make a document discoverable even if it did not itself advance one party’s case, damage that of the other, or relate to an issue; under the new rules a document must be relevant to a fact in issue in the defined sense.”

The first sentence says that a document is not relevant merely because it could give rise to a train of inquiry. Their Honours considered that was the effect of the definition in rule 1(d). The third sentence, as I understand it, reinforces this view, which emerges from the words “even if it did not”. This, of course, is very different from saying that the rules expunged all references to trains of inquiry for reasons I shall seek to explain.

21    This makes it necessary to refer to rule 1(d), which is referred to as a definition, and to which I shall refer as a definition, but is, perhaps, more properly understood as a statement. It provides:-

“a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material which could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence .” (My emphasis.)

22 The reason for this definition, in my opinion, is only explicable by reference to rule 3(3)(a) were it is provided that a class of documents may be specified by relevance to one or more facts in issue. Mr Walker disagrees with this, it being his submission that the definition of relevance also applies to sub-rules (3)(b) and (c). For reasons I shall seek to explain I do not agree.

23    However, before dealing with that it is necessary to try to work out what rule 1(d) means and its possible ambit of operation. In considering relevance it is concerned with relevance to a fact in issue, not to a pleaded issue. A fact in issue is one which proves or assists in the proof of an issue. Its ambit does not confine relevant documents to those which are admissible in evidence, but extends relevant documents to those which may not be admissible. Therefore, for the purposes of discovery, it expands the category of relevant documents to those which may not be admissible, thus recognising that such a document may none-the-less be one which could, or which contains material which could, rationally affect the assessment of the probability of such a fact. Generally speaking documents will not be rejected as inadmissible if the only objection to them is as to their relevance. In those circumstances, once again speaking generally, the usual practice is to admit the document subject to relevance.

24 The desirability of that course being taken by a trial Judge was forcefully pointed out by the Court of Appeal in Dubbo Base Hospital v Jones [1979] 1 NSWLR 225 and is now, perhaps, reinforced by the provisions of the Evidence Act. In my experience the usual practice, save in exceptional circumstances, is to admit documents subject to relevance, where the asserted absence of relevance is the only objection. This, I am sure, would have been well appreciated by those who drafted the rule. Accordingly, when reference was made to the document not being “admissible in evidence” it not only covered the limited circumstance of an objection on the ground of relevance, but other more substantial reasons of inadmissibility. The significance is that if the document is not admissible on substantive grounds, the definition makes it discoverable if it meets the stated test.

25    The question then arises as to why the definition specified that a document not admissible in evidence should be discovered. It must be a document which “could or contains material which could, rationally affect the assessment of the probability of the existence of that fact …”. “That fact” is “a fact in issue”. Normally a document relevant to a fact in issue is admissible. However, the definition acknowledges that there may be documents not admissible in evidence, which could meet that stated purpose, and that, in my opinion, requires one to ask how that could occur and why the definition acknowledges the situation. It seems to me that essentially that part of the definition can only have effect if the document gives a lead to or provides a train of inquiry to other evidence, which would be admissible and which could rationally affect the assessment of the probability of the existence of the fact in issue. Certainly that may not be the only purpose but, and Mr Walker did not contest this, such a document, i.e. one not admissible in evidence, could give rise to a train of inquiry and, further, he conceded that documents contemplated by the definition could, in any event, give rise to a train of inquiry. Accordingly, the “train of inquiry” idea has not been removed by the definition for all purposes and, if I may say so with respect, it would be very strange if it had been. The purpose of discovery is to enable a party to build up an evidentiary case on the basis of all the evidence available, and part of that purpose is achieved by finding admissible evidence through other material which is not, of itself, admissible. The definition did not intend to preclude that purpose, although it may, as the Court of Appeal said in paragraph 7, have been intended to have that effect if the “train of inquiry” was the only basis of relevance. I do not think that their Honours could have intended to exclude documents where there are concurrent bases of relevance, one of which was recognised by the definition.

26    Mr Walker suggested that the definition in rule 1(d) was a compromise, presumably between conflicting views among the rule makers, and that the insertion of the concluding words concerning the document’s admissibility in evidence derogated from his submission that rule 1(d) applied to sub-rules (3)(b) and (c).

27    In any event, if I may say so with respect, I do not think that Mason P and Priestley JA were saying that the “train of inquiry” idea was no longer appropriate in considering the discovery of documents. What their Honours said in the first sentence of paragraph 7 was that the intention of the new rules was to exclude that “as a factor in deciding relevance”. Thus, if the only basis on which a document could be said to be relevant was that it would give rise to a train of inquiry that, according to their Honours, was insufficient to meet the test of relevance. As I would understand it this is fortified by the second sentence in paragraph 7.

28    Their Honours then considered the passage quoted from The Northern Land Council case and, in paragraph 9, said:-

“It was then submitted that Einstein J, by adopting the first sentence of Brett LJ’s passage as relevant to Part 23 rule 3(3)(a) of the Supreme Court Rules, was also adopting the ‘train of inquiry’ idea as a factor in relevance and was therefore making a legal error.”

Their Honours did not agree, but, in paragraph 10, made specific reference to sub-rules (3)(b) and (c) and noted that his Honour had pointed out “that they permitted discovery of a wider range of documents than those identified in paragraph (a) of sub-rule (3), paragraph (a) being the paragraph confined to documents relevant to one or more facts in issue”. Thus, it is clear that their Honours appreciated that his Honour was drawing a distinction between sub-paragraph (a) and sub-paragraphs (b) and (c). They offered no criticism of this distinction and continued:-

“After pointing out the width permitted by paragraphs (b) and (c) Einstein J went on to say, ‘the primary approach must, however, be to ascertain the matters in issue’. This was clearly a reference to paragraph (a).”

Their Honours did not suggest that his Honour was in error in referring to the width permitted by paragraphs (b) and (c), nor that those paragraphs were confined by rule 1(d). It would be extraordinary, in my respectful opinion, if they were not in agreement with that statement but did not, in the context in which they were considering the matter, say so. The only inference is that their Honours agreed with Einstein J’s formulation and were not prepared to extend rule 1(d) to paragraphs (b) and (c). In my respectful opinion this must be correct, there being nothing in the words of the rules which would justify importing the rule 1(d) definition into paragraphs (b) and (c).

29    In paragraph 11 their Honours said:-

“In our view, both here and elsewhere in his reasons Einstein J showed clearly enough that he was applying sub-rule (3)(a) on the basis of the new definition of relevance and not making use of the ‘train of inquiry’ idea. Although we can understand why the argument to the contrary has been pressed before this court, we do not think it persuasive.”

Once again their Honours confined their remarks to sub-rule (3)(a). If they had been of the view that the definition should be extended to paragraphs (b) and (c) I am sure they would have said so for the guidance of the profession and Judges called on to rule on questions of discovery.

30    In paragraph 12 their Honours said:-

“Although the part of Brett LJ’s passage which Einstein J used may well have been useful in a general way in understanding one aspect of this Court’s new 1996 Rules, its closeness to the next sentence incorporating the ‘train of inquiry’ idea, which definitely has no application to Part 23 rule 3(3)(a) of the 1996 Rules , was likely to cause some readers to think (wrongly in the overall context) that he was also adopting the second and impermissible factor. The best way of applying sub-rule (3)(a) is by using it in accordance with its own terms. If they need to be explained it is undesirable that the terms of a judicial explanation of a quite different rule be used for that purpose.” (My emphasis.)

Again their Honours presented themselves with the opportunity of saying that the definition applied to paragraphs (b) and (c), but declined to do so.

31    In my respectful opinion everything that their Honours said showed that they were relating the definition of relevance in sub-rule 1(d) to sub-rule 3(3)(a). They were fully aware that his Honour had treated sub-rules (3)(b) and (c) differently. They made no criticism of that and, in my opinion, far from their reasoning supporting the submissions made by Mr Walker, it supports the view that rule 1(d) has no relevance to sub-rules (3)(b) and (c). Further, their Honours were aware that his Honour had referred to the principle stated in Mulley v Manifold. It is so well known and so frequently applied in this area of discourse, that I cannot conceive that if their Honours were over-ruling it, at least for all purposes, they would not have said so. They made no reference to it. Nor did they offer any criticism of my statement in Lakatoi, which, of course, was made in the context of the rules.

32    It is also important, in my respectful opinion, to note that Mason P and Priestley JA appear to have come to a different conclusion on this point to that of Fitzgerald JA. In paragraph 27 his Honour said:-

“The majority consider that the Judge” (Einstein J) “correctly decided that any document in either class is relevant within the meaning of the discovery rules and that no limitation on the documents in the two classes was intended or needed. I doubt whether that is correct.”

33 It seems to me, therefore, that there may be some difference between the views of Mason P and Priestley JA, on the one hand, and Fitzgerald JA, on the other, as to the extent to which the definition applied. If there was, this pointed up more clearly that the majority was only applying the relevance definition to rule 3(3)(a). Alternatively, it may be that there was no difference in relation to the rules, but rather their application to the particular facts of that case. However that may be, the situation remains that in my opinion Mason P and Priestley JA made it very clear that sub-rule 1(d) only applied to rule 3(3)(a) and not to sub-rules (b) and (c).

34    The reason for this, if I may say so with respect, is not difficult to understand. It is, in part, concerned with the reason for the amendment to the rules in 1996. Whilst their Honours were of the view that the new rules were intended to exclude the “train of inquiry” idea as a factor in deciding relevance, which may well be correct, they were also intended to curb the perceived excesses of general discovery, which, from my experience as a trial Judge sitting in Commercial causes, was causing concern. Thus the Court was given new powers to control discovery, but in the context, obviously enough, of achieving the basic end to which discovery was aimed, namely ensuring that all relevant facts in issue could be explored properly so that there could be a judicial determination based upon that exercise, which would preclude any injustice by reason of a party’s being denied access to relevant admissible evidence. In many cases the existence of certain of that evidence will only arise from following a train of inquiry. It cannot have been the purpose of the rules to preclude a litigant from doing that and thereby being deprived of the opportunity to present his case and, as I have sought to explain, such a right is not destroyed by the definition.

35    In these circumstances rule 3 provided that the Court may order discovery of documents within a class or classes specified in the order; that the class should not be specified in more general terms than the Court considers justified in the circumstances; and that the class may be specified by reference to one or more of the categories appearing in sub-rule (3). This gave the Court the necessary power to control discovery and thus the perceived excesses that general discovery was causing. It was not disputed before me that sub-sub-rules (a), (b) and (c) are disjunctive, nor, in my opinion, could it have been. Three separate categories are specified. The only reference to “relevance” is in sub-rule (a) and, if the Court orders discovery conformably with that provision, the test of relevance in rule 1(d) must be met although, as I have said, it would not necessarily, and it was not submitted that it would necessarily, preclude the discovery of a document, which disclosed a train of inquiry. The other two sub-rules make clear that the Court retains the power, depending upon the case, its particular circumstances, and the issues raised, to order wider discovery, albeit related to the facts in issue. Einstein J made this clear and, as I have said, the Court of Appeal offered no criticism of that part of his reasons, nor of the passage from my judgment. There may be cases where it is totally appropriate to make an order which picks up the train of inquiry “idea”, e.g. cases where the facts are essentially within the knowledge of the other party. However, it is not necessary for present purposes to explore those possibilities. Suffice it is to say that it would be extraordinary, in my view, if the power of the Court in relation to paragraphs (b) and (c), which is given in wide terms, was to be circumscribed by the reference back to the definition of relevance. This would be self-evidently so if any such confining led to the wholly unjust result that a party may be deprived of material which would enable him to use admissible evidence to seek to prove his case. The whole purpose of the amendments was to give the Court both greater control of the discovery process and an amplitude of power to make orders appropriate to the particular circumstances of a given case. No part of the purpose was to allow a situation of injustice to arise. Detailed provisions are made for the way in which discovery is to be given, the list of documents being required to comprise “all the documents .. specified in the order (other than excluded documents)”: rule 3(5)(a).

36 Part 23 rule 4 provides that the Court may inspect documents to determine any question of privilege or any other question arising from the operation of the Part. Therefore, the Court is given the express power to consider documents and the party to whom discovery has been given is no longer necessarily bound by the oath of the discovering party.

37    Finally, it seems to me that if the Court of Appeal had intended that the statement of Menzies J in Mulley v Manifold was no longer to apply by virtue of the terms of the rule, their Honours would have said so. They would be fully aware of the extent to which reliance has been placed upon that decision for over forty years and, I have no doubt, in guiding Judges at first instance, they would have said if that test no longer had any application to any part of the rules.

38 In the circumstances I reject Mr Walker’s submission that rule 1(d) applies other than to rule 3(3)(a) and, in any event, I accept his concession, which I think was made correctly, that a document which is otherwise discoverable as being relevant may, none-the-less, be one which gives rise to a train of inquiry. I do not understand the Court of Appeal to be saying anything different in Idoport. Rather, as I have sought to explain, the majority was restricting the basis of relevance to documents relevant for reasons stated, which did not include, but may none-the-less pick up, the train of inquiry concept. In the result, I propose to review my reasons on the basis that the definition of relevance does not apply to categories of documents, where the order has been to discover documents within categories.

39    Further, I propose to consider whether the documents are shown to be relevant in any event and the reference to train of inquiry, although put in what, with the benefit of hindsight, may seem to have an incorrect way, was none-the-less justified.

40    On this occasion I also propose to make orders, so that if there is any disagreement with my reasons, which the defendants wish to test, the matter can be the subject of an application for leave to appeal to the Court of Appeal. It seems to me that the question of how discovery should be ordered is far too important, in the general administration of cases at first instance, to be left in any area of doubt. I do not suggest that the doubt stems from the decision in Idoport, but rather from the conflicting submissions made in relation to the rules. If, as Mr Walker suggested, rule 1(d) is reflective of a compromise it may be that the Rule Committee should reconsider the rule with a view to clarifying it. Any such clarification would be assisted by the consideration of the Court of Appeal of these reasons in the light of the decision in Idoport.

The Conclusions Thus Far

41    In my opinion, the rules, on their proper construction and consistently with the decision in Idoport, have this operation:-

1. The definition of relevance in rule 1(d) only applies to that word where used in the Part 23, viz in rule 3(3)(a).
2. The definition of relevance in rule 1(d) does not, therefore, control rules 3(3)(b) and (c).
3. Even where the definition of “relevance” is applicable, it does not mean that a document, which falls within it, ceases to be relevant because it can be said that it leads to a train of inquiry. I have, however, pointed out difficulties, which I have little doubt will arise because of the inclusion in the definition of documents which are not otherwise admissible. None-the-less, Idoport establishes that relevance may not be established solely by reference to providing a train of inquiry.
4. If orders for discovery are made conformably with sub-rules (b) and (c) I consider that “train of inquiry” documents are discoverable. The Court has adequate powers to control discovery, but the extent of those powers points, in my opinion, to allowing rather than prohibiting discovery of such documents, consistently with the general aim of discovery.
5. There is nothing in the wording of rule 3 which justifies the application of the definition of relevance to sub-rules (b) and (c). Rather the formulation of the Court’s power is based firstly on “relevance to one or more facts in issue”; or by description of documents; or by the specification of a class of documents in such manner as the Court considers appropriate in the circumstances. It is difficult to conceive of wider words, particularly in paragraph (c), and I do not consider there is any justification for not reading them as broadly as is necessary depending on the particular case.
6. The decision, at least of the majority, in Idoport lends no support for the removal of the important “train of inquiry idea” save when one is considering the definition of relevance, and then only to the extent to which they referred. Nor, in my opinion, do the terms of the Part.
7. I am not to be taken as suggesting that a Judge may take an idiosyncratic approach to discovery. The principles pursuant to which it may be ordered or should be allowed are well established and, save to the limited extent stated in relation to sub-rule (3)(a), have not been altered either by the rules or by the decision in Idoport , relevantly for present purposes.

My Reasons Of 19 April 2000

(a) Categories 8, 9 and 10

42    In relation to these categories the order was clearly made under sub-rule (3)(b), i.e. by reference to the description of documents. On its face the order refers to portions of the pleadings and, therefore, to matters in issue. The plaintiff submitted that the documents are relevant to the facts in issue. It was not conceded by the plaintiff that the documents emanating from the defendants were not relevant to facts in issue as well as leading to a train of inquiry.

43    The defendants’ submission was that the order made provided for discovery of categories of documents pursuant to class descriptions. This would accommodate sub-rule (3)(b), but not sub-rule (3)(a). Accordingly, in my view, the train of inquiry principle would not defeat the right to discovery. However, even if the documents are properly characterised as falling within sub-rule (3)(a) they are submitted to be, and prima facie appear to be, relevant within the meaning of rule 1(d). Thus the fact that they might also give rise to a train of inquiry does not mean they are not discoverable.

44    A central issue in relation to these categories was that with which I commenced to deal in paragraph 13, viz the alleged attempt of the plaintiff to resile from a prior stance. I do not propose to re-visit what I said in relation to that.

45 However, in paragraph 14 I expressed a view about Part 23, which is clearly not consistent with the view expressed in Idoport to the extent to which I have referred. Whilst that view should, conformably with the doctrine of precedence, be modified to accommodate that decision, that modification does not cause me to change the conclusion to which I came in the circumstances of this case for the reasons I have given.

(b) Category 12

46    The documents sought in relation to Category 12 fall within sub-rule (3)(b). Whilst the discovery must be directed to a determination of matters in issue, I am satisfied on the material before me that the Consent Decree meets that fact. I said as much in paragraph 24.

47    However, once again the terms in which I expressed myself require some modification in the light of Idoport. For the reasons I gave in relation to Categories 8, 9 and 10 that modification does not cause me to change the conclusion to which I came.

(c) Category 13

48    Essentially the comments I made in relation to Category 12 apply. But it will be noted, conformably with the words of sub-rule (b), that I have required a temporal limitation and an identification of the products as the same type as are the subject of this litigation. That merely indicates the use of the control mechanisms the rules provide to supervise discovery.

49    I should also note that even on the defendants’ submission, the lack of any probative value is not a ground for complaint. The definition of “relevant”, by the reference to documents, which would not be admissible in evidence, makes this clear.

The Letter Of 28 March 2000

50    The plaintiff has satisfied me that the depositions have sufficient relevance, in the sense referred to in Mulley v Manifold, to make them discoverable pursuant to sub-rule (3)(c). Mr Thomas will, in all probability, be a witness in these proceedings and, in all the circumstances, it is not inappropriate for discovery to be made of his depositions.

51    I repeat that the Court has the power to consider documents to determine whether they are discoverable. This provides an adequate protection for the defendants.

52    I stand the matter over to Friday, 9 June 2000. I invite the plaintiff to bring in Short Minutes of Order on that day to give effect to these reasons and I shall hear argument on the question of costs of the matters thus far argued.

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Last Modified: 09/25/2000