Hughes Aircraft Systems International v Airservices Australia

[1995] FCA 687

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JUDGMENT NO. J S ! 8 7 a a a J - W 95

FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 913 of 1994

GENERAL DIVISION )

BETWEEN:

HUGHES AIRCRAFT SYSTEMS

INTERNATIONAL

Applicant

AND:

AIRSERVICES	AUSTRALIA
Respondent

CORAM :	SACKVILLE J.
PLACE :	SYDNEY 04 SEP 1995
DATE :	23 AUGUST 1995

AUSTRALIA PRINCIPAL REGISTRY

REASONS FOR JUDGMENT

In this matter a judgment was delivered by Davies J. on 28 June 1995. In that judgment his Honour dealt with the applicant's claim, in effect, for preliminary discovery. His Honour, at page

10 of the judgment, stated that he would not finalise his views

or make any.forma1 orders, but short minutes of order should be brought in at a later time. Those short minutes were ultimately brought in and orders were made on 12 July 1995. Paragraph 2 of those orders provides that:

The respondent shall make discovery, in accordance with Order 15A rule 6, of the documents described in the attached schedule on or before 26 July 1995.

Mr Raftesath, on behalf of the applicant, seeks an order that discovery be verified. There has in fact been a list of documents provided by the respondent to the applicant. That list

has been signed by the solicitor for the respondent, but there has been no verification of the list so provided. Mr Raftesath puts two arguments. The first is that 0.15A r.6, when it refers to "make discovery", does so as a cross reference to 0.15 r.2. That rule deals with discovery on notice and requires an

affidavit verifying the list: 0.15, r.2 (2) (b) .

Alternatively, Mr Raftesath submits that the Court, in its inherent jurisdiction, or possibly pursuant to 0.10, r.1, has power to order verification of the list provided by the respondent.

Mr Grif fiths, on behalf of the respondent, points out that no specific order was made by his Honour that the list of documents be verified. Mr Griffiths does not dispute that there is power in the Court, pursuant to 0.10, at least, to require verification of the list.

Having regard to the purposes for which the list is to be provided it seems to me to be an appropriate and sensible course that the list be verified in the usual way. I do not think it necessary to rule on the question of construction posed by the first of the Mr Raftesath's arguments, in light of Mr Griffiths' agreement that there is power in the Court to deal with the matter under 0.10.

It seems to me that the provision of the list of documents is a matter of considerable importance, having regard to the reasons

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given by his Honour in the judgment of 28 June 1995. The documents are to be scrutinised with a view to the applicant determining whether proceedings are to be issued raising some of the arguments that are referred to in his Honour's judgment.

In these circumstances it seems to me to be an appropriate course that an affidavit verifying the list should be provided by the respondent so as to minimise the risk of any further application to the Court being necessary at some later stage. In saying this, I do not imply for one moment that the list is incomplete or has not been compiled in accordance with his Honour's orders.

It follows from what I have said that I would make orders in accordance with paragraph 1 of the notice of motion that has been filed in court and in accordance with paragraph 1 of the short minutes of order that have been handed up by Mr Raftesath.

The second issue raised is simply the date by which the respondent should provide to the applicant copies of documents. In the circumstances, it seems to me that 5.00 pm on Monday, 28 August 1995 is an appropriate time. I would therefore modify paragraph 2 of the short minutes of order to insert the date 28 August 1995 in lieu of 24 August 1995.

The third matter was that raised by Mr Griffiths for the inclusion in the short minutes of order of an express confidentiality undertaking applicable to the copies of the documents to be provided in accordance with paragraph 2 of the short minutes of order. Mr Raftesath accepts that the

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confidentiality undertakings ought to apply to those copies and indeed submits that the existing undertakings are adequate for

the purpose. However, Mr Raftesath does not dispute that an undertaking in the fonn suggested by Mr Griffiths would be appropriate in the circumstances of the case. Accordingly, I shall include in the orders that are to be made a confidentiality undertaking in the form submitted by Mr Griffiths.

The result, therefore, is that I make orders in accordance with paragraph 1 of the short minutes of order handed up by Mr Raftesath, but will substitute the date 28 August 1995 for the date 25 August 1995 which appears there. I make a direction in

accordance with paragraph 2, substituting the date of 28 August 1995 for 24 August 1995 appearing in the short minutes. I grant liberty to the applicant or respondent to restore on 72 hours notice and I order that the confidentiality undertaking, as filed by the applicant's representatives, pursuant to orders made by Davies J. on 12 July 1995, also apply to copies of the documents described therein.

I will reserve the question of costs

I certify that this and the preceding 3

pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Dated: 23 August, 1995

Heard: 23 August, 1995

Place :

Decision: 23 August, 1995

Appearances	:	Mr G.I. Raftesath, of Mallesons Stephen Jaques, Solicitors, appeared for the applicant.
Mr J. Griffiths, instructed by Freehill, Hollingdale & Page, Solicitors, appeared for the respondent.