Hughes Aircraft Systems International v Civil Aviation Authority

The case of Hughes Aircraft Systems International v Civil Aviation Authority involved Hughes, a tenderer for the Australian Advance Air Traffic System (TAAATS) contract, seeking discovery of documents from the Civil Aviation Authority (CAA) to assist in deciding whether to proceed with a claim against the CAA for breach of contract and/or misleading conduct. The tender process for the TAAATS contract was initially specified on 30 May 1991 and later altered on 2 October 1991. Despite an initial recommendation in December 1991 that Hughes be named as the preferred contractor, the CAA Board ultimately selected Thomson as the preferred contractor on 23 December 1993. Hughes believed that the CAA's decision may not have been made in accordance with the agreed evaluation criteria and sought access to several documents related to the tender process, including the best and final offers submitted by the tenderers, correspondence regarding pricing, and internal CAA documents.

The primary legal issue before the court was whether Hughes had made all reasonable inquiries and whether it had sufficient information to decide whether to commence proceedings against the CAA. The court found that Hughes had made all reasonable inquiries and did not have sufficient information to responsibly commence proceedings. The court noted that the documents Hughes sought were in the possession of the CAA and were relevant to the decision Hughes needed to make. The court also found that Hughes had a reasonably arguable case for claiming that the CAA breached the contract by failing to decide between the tenderers in accordance with the agreed criteria.

Davies J exercised his discretion under Order 15A rule 6 of the Federal Court Rules and ordered that certain documents be discovered by the CAA. The court limited the scope of discovery to avoid disclosing technical matters that might be confidential to Thomson. The court also noted that further discovery could be ordered if needed after reviewing the initial set of documents. The court did not make final orders at that time and directed counsel to propose specific orders within seven days. The court also directed that Thomson be given the opportunity to attend the hearing to discuss the proposed orders.