Charlick Trading Pty Ltd v Australian National Railways Commission

[1997] FCA 1185

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 78 OF 1996

BETWEEN:

CHARLICK TRADING PTY LTD
APPLICANT

AND:

AUSTRALIAN NATIONAL RAILWAYS COMMISSION
FIRST RESPONDENT

NATIONAL RAIL CORPORATION LIMITED
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	22 SEPTEMBER 1997
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:   I propose to rule on the notice of motion of the applicant dated 25 August 1997 for further and better discovery.  I will make only very brief remarks in relation to the ruling.

It is apparent that the applicant, in the course of preparing this matter for hearing, from time to time has identified matters upon which further discovery was sought and over the last several months has raised those matters with each of the respondents from time to time.  To a large extent the correspondence discloses that those matters have then been resolved.  In effect, by way of final application prior to hearing, the applicant has now sought further orders by its motion dated 25 August 1997 for the discovery by each of the respondents of certain documents which are more particularly set out in the affidavit of Gregory Travis Brown, sworn 25 August 1997.

As the submissions developed, it appears that the orders for further discovery which have been sought, can be treated as orders sought under O 15 r 8 of the Federal Court Rules (“the Rules”).  As all parties acknowledged, having regard to O 15 r 15 of the Rules, it is appropriate to make those orders sought only if, in my view, it is necessary for the fair and proper disposition of the matter.  In making the rulings which I am about to announce, I have endeavoured to adopt a consistent approach with previous rulings and directions given with respect to discovery, and to limit documents to be produced on discovery and then inspection to those which are directly relevant to matters in issue or adverse to the interests of a particular party.

The application is somewhat complicated by the first respondent having initially pleaded and then withdrawn its defence of force majeure.  Part of the submissions for further discovery have been based upon what is said in submissions to be a somewhat curiously worded withdrawal of that defence, in particular by its use of the present tense in the pleading.  I am nevertheless assured by counsel for the first respondent, Mr Ross-Smith, that there is no special subtlety in the tense used in the current pleading, nor is any apparent to me.  I therefore rule on the basis that issues relating to force majeure are not currently raised by the first respondent, either as a defence previously available to it, or as a defence available to it in any form in the current proceedings.  If that assumption proves to be erroneous in the course of the trial, I will revisit the rulings which I am about to announce at the applicant's request and any consequences of then doing will have to be considered.

I am satisfied that the first respondent has approached the question of its discovery by reference to the issues between it and the applicant on the one hand and between it and the second respondent on the other hand and has not specifically sought to discover in a general way, and within the general direction for discovery, matters relating to issues between the applicant and the second respondent.  Mr Ross-Smith acknowledged that to be the case.  I am not to be taken in any way as being critical of the first respondent in adopting that approach but it seems to me, having regard to the provisions of O 15 rr 8 and 15 in particular, that because of that approach, there may be certain specified documents or classes of documents of which in order to do justice between the parties, the first respondent in the circumstances should be directed to further give discovery.

In making that observation, I am not to be taken as directing in any sense a wholesale revisitation by the first respondent of its discovery to discover every document, even within the limited formulation which I previously directed, on issues between the applicant and the second respondent.  I am proposing to limit the orders which I make to the particular categories of documents which have been identified by the applicant in Mr Brown's affidavit.  In a sense, that represents a form of compromise but given the proximity of the hearing and the stage at which the motion was brought and I think the opportunity which the applicant has obviously had to explore possible documents and their existence, it is not an inappropriate form of compromise.

I propose therefore to order certain further discovery to be made by the first respondent to the applicant and for the documents to be so discovered to be available for inspection by the applicant.  The second respondent has also asked for access to those documents and it seems to me that consistent with the approach up to now, the second respondent should also have access to those documents, particularly bearing in mind the sort of documents of which I am about to direct further discovery.

The parties up to now have been able to accommodate the need for confidentiality of documents given their commercial sensitivity by informal arrangements.  The directions which I give, including further discovery and access to the documents, are to be subject to the first respondent being able to protect its claims for confidentiality of the documents to be further discovered in an appropriate way.  In the absence of an arrangement about that, liberty to apply, which has been generally given, will have to be exercised.

The only broad category of documents which in my view are required to be further discovered within the range of topics which Mr Brown's affidavit identifies are those which are directly relevant to the existence or nature of the market for the interstate transportation or carriage of containers between Adelaide and Melbourne, either by rail or by rail and road, or to the market power of the second respondent in that market, or to the exercise of power of the second respondent in that market.

Subject to that general description, in my view the first respondent should give discovery only of the documents which are identified in pars 4, 6, 7 and 9 of Mr Brown's affidavit which fall within that general but limited description and not otherwise.  It may be as a result of that direction, no additional material from the already discovered documents will be required.  I simply do not know.  Because I am satisfied, and indeed Mr Ross-Smith of counsel acknowledged, that the first respondent had not sought to discover specifically documents relating to the issues between the applicant and the second respondent, I am directing that those materials be revisited for the purpose of giving that additional limited discovery.

I do not direct further discovery otherwise of the documents sought in those paragraphs of Mr Brown's affidavit for any other purpose, or of the documents sought in par 8 of Mr Brown's affidavit.  In relation to that part of the affidavit, I am not satisfied that the material sought to be discovered is sufficiently directly relevant to any matter in issue, and it does not fall within the category of materials which I have identified as materials that the first respondent, up to now, has regarded as not part of its discovery obligation.

In respect of the notice of motion against the second respondent, the material before me indicates that the requests for discovery or the documents for which further discovery is sought from the second respondent are those dealt with in pars 12 to 17 of Mr Brown's affidavit.

In respect of the documents in par 13 of Mr Brown's affidavit, the second respondent indicated shortly before this motion was argued that it would give discovery of and inspection of invoices between itself and the first respondent.  I therefore make no order for discovery further with respect to that particular category of documents.

In relation to the remaining documents for which discovery is sought, par 12, part of par 13 and pars 14 to 17, I am not satisfied that the second respondent has failed to discover additional directly relevant material.  In those circumstances, it is not appropriate that I should make any additional order for discovery.

Accordingly, in so far as the motion concerns the second respondent, I propose to make no order.

In so far as the motion concerns the first respondent, I order that the first respondent make further discovery and make available for inspection, subject to proper protection of confidential documents, any further documents as described specifically in pars 4, 6, 7 and 9 of Mr Brown's affidavit of 25 August 1997 but limited to such documents or such parts of documents as have not presently been discovered and which are directly relevant to the issues of the existence or nature of a market for interstate transport of containers between Adelaide and Melbourne by rail or by road and rail, or to the power of the second respondent in such market, or to the exercise of the power of the second respondent in such market, but not otherwise.  Subject to issues of confidentiality, I direct that the documents so discovered, if any, should be available both to the applicant and to the second respondent for inspection.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:
Date:

Counsel for the Applicant:  Mr A Besanko QC
  with him
  Mr R C White

Solicitors for the Applicant:  O’Loughlins

Counsel for the First Respondent:  Mr R D Ross-Smith

Solicitors for the First Respondent:  Phillips Fox

Counsel for the Second Respondent:  Mr P Gray

Solicitors for the Second Respondent:  Deacons Graham & James

Date of Hearing:  22 September 1997

Date of Decision:  22 September 1997