Ibrahim v Worken Pty Ltd (No.2)
[2009] FMCA 156
•3 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IBRAHIM v WORKEN PTY LTD (No.2) | [2009] FMCA 156 |
| TRADE PRACTICES – Misleading and deceptive conduct – design for construction of commercial premises. PRACTICE AND PROCEDURE – Discovery – whether in the interests of the administration of justice. PRACTICE AND PROCEDURE – Whether better to review Registrar’s decision to dismiss subpoena for production of documents or order general or particular discovery. EVIDENCE – Subpoena for production of documents. |
| Federal Magistrates Act 1999 (Cth), ss.3, 42, 45, 102(2)(c), 104(2) & (3), 104(3) Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 1.06, 16.05(2)(a), 20.01(1)(c), 20.02(1) Trade Practices Act 1974 (Cth) |
| Abrahams v Qantas Airways Limited (2007) 210 FLR 314; [2007] FMCA 639 B Cairns, Australian Civil Procedure (7th Edn) (Pyrmont: Thomson Legal & Regulatory Australia, 2007) |
| Applicant: | TAREK IBRAHIM |
| Respondent: | WORKEN PTY LTD |
| File Number: | PEG 63 OF 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 27 February 2009 |
| Date of Last Submission: | 27 February 2009 |
| Delivered at: | Perth |
| Delivered on: | 3 March 2009 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr L Hager |
| Solicitors for the Respondent: | Metaxas & Hager |
ORDERS
That the applicant’s Application in a Case filed 8 January 2009 be dismissed.
That the applicant file and serve a sworn affidavit of all discoverable documents in his possession, power, custody or control before 4.00pm on 6 March 2009.
That an officer of the respondent file and serve a sworn affidavit of all discoverable documents in the respondent’s possession, power, custody or control before 4.00pm on 13 March 2009.
That all of the applicant’s discoverable documents be made available to the respondent for inspection, and copying of any of those documents required by the respondent, by 4.00pm on 13 March 2009.
That all of the respondent’s discoverable documents be made available to the applicant for inspection, and copying of any of those documents required by the applicant, by 4.00pm on 20 March 2009.
That copies be provided by, and at the expense of, the party with the documents in their possession, power, custody or control, with the question of the costs of that photocopying to be reserved for later determination.
Following discovery and inspection, any application for particular discovery must be made by application in proper form, supported by an affidavit:
(a)if by the respondent, by 4.00pm on 17 March 2009; and
(b)if by the applicant, by 4.00pm on 24 March 2009.
Any document not discovered will not be admissible in evidence, or useable in any way, at the hearing of this matter, without leave of the Court.
That the Court’s orders of 30 January 2009 be varied as follows:
(a)in order 5, by substituting “10 April 2009” for “3 March 2009”;
(b)in order 6, by substituting “1 May 2009” for “3 April 2009”; and
(c)in order 7, by substituting “15 May 2009” for “1 May 2009”.
Costs otherwise be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 63 OF 2008
| TAREK IBRAHIM |
Applicant
And
| WORKEN PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
In the course of trade practices proceedings alleging misleading and deceptive conduct the applicant, Mr Ibrahim, caused to issue a subpoena for the production of documents to Mr Philip Marsh, a director of the respondent, Worken Pty Ltd, on 1 December 2008.[1]
[1] “Marsh Subpoena”.
The issuing of the Marsh Subpoena has set in train a series of events which now require this Court to consider whether:
a)to revoke an order made by a Registrar of this Court dismissing the Marsh Subpoena; or
b)it should make orders for discovery, either generally or on a more limited basis.
Unfortunately, it is necessary to set out the somewhat tortuous history of this aspect of this matter.
Background
On 1 December 2008 the Marsh Subpoena was issued.
The Marsh Subpoena was returnable before Registrar Stanley on
18 December 2008. There was no appearance by Mr Ibrahim. In oral submissions on 13 February 2009, and again on 23 February 2009,
Mr Ibrahim said that he did not realise that it was necessary for him to attend on the day of the return of the subpoena. There was an order that the Marsh Subpoena be dismissed. Unexceptionally, there are no written reasons for that order, and there is no transcript of the proceedings. Worken’s counsel, Mr Hager, who attended before the Registrar, has told the Court that he advised the Registrar that Worken was prepared to disclose relevant documents. It is possible that that was a reason for dismissal of the Marsh Subpoena.[2]
[2] B Cairns, Australian Civil Procedure (7th Edn) (Pyrmont: Thomson Legal & Regulatory Australia, 2007) page 435: “A subpoena for production is the proper procedure to obtain the production of a document from a witness who is not willing to produce it voluntarily.” (“Cairns, Civil Procedure”)
On 8 January 2009 Mr Ibrahim filed an Application In A Case for the Marsh Subpoena to be re-submitted to the Court and for the dismissal order to be revoked.[3] The Application in a Case was not supported by an affidavit.
[3] “Application in a case”.
The application in a case was listed for directions before the Court on 30 January 2009. At that directions hearing it appeared, having heard Mr Ibrahim and Counsel for Worken that the ultimate issue in dispute was as much about discovery generally, as it was about the Marsh Subpoena. The Court suggested to the parties that all matters associated with documents ought to be able to be resolved by conferral. Accordingly, the Court made orders that:
3. The parties are to confer with respect to the production, inspection and copying of documents generally prior to 13 February 2009.
4.The application in a case with respect to the subpoena to Mr Marsh filed on 1 December 2008 be adjourned to 13 February 2009 at 11:00am.
The Court made it apparent that proper conferral between the parties ought to be able to resolve the issue of discovery, and, that in any event, the Marsh Subpoena might equally be seen as an application for particular discovery.
At the hearing on 13 February 2009 the Court indicated to the parties that:
a)it was extraordinary on the part of Worken that:
i)the application having been on foot for the better part of nine months, they were not yet in a position to provide discovery in what was not major litigation, from a size and complexity view point, and
ii)that they would not be able to do so until some time in the following week;[4]
b)Mr Ibrahim made legitimate criticism of Worken’s failure to be in a position to presently provide discovery;[5]
c)if by 23 February 2009 there had not been appropriate conferral and informal discovery that the Court would consider making orders with respect to discovery, subject to the provisions of s.45 of the Federal Magistrates Act 1999 (Cth);[6] and
d)if there had been no progress by 23 February 2009 with respect to the issue of discovery that the matter would be dealt with on that day together with the Marsh Subpoena.[7]
[4] Transcript, 13 February 2009 at page 6 where the Court was told that with respect to order 3 (conferral re discovery) of 30 January 2009 that Worken “anticipate[d] that the [respondent’s] documents are actually available at some stage in the next week or so.”
[5] Transcript, 13 February 2009 at page 8.
[6] “FM Act”. Transcript, 13 February 2009 at page 8.
[7] Transcript, 13 February 2009 at page 8.
When the matter came back on for hearing on 23 February 2009 it was apparent that there had been no meaningful conferral. In oral submissions each party traded unhelpful accusations as to where the blame lay for the failure to have had meaningful conferral. The Court is not in a position to deal with that issue in the absence of sworn evidence.
On 23 February 2009 the Court ordered that:
1.Each party attend the offices of the Respondent’s solicitors at 9:00am on 25 February 2009 to exchange copies of all relevant documents in their possession, power, custody or control.
2.The parties attend a further directions hearing at 4.30pm on 26 February 2009.
When the matter came on on 26 February 2009 the Court was advised by both parties that they were present at the offices of Worken’s solicitors at 9.00am on 25 February 2009, but there had not been an exchange of documents. Mr Hager, Counsel for Worken, advised the Court that an articled clerk had been assigned the task of meeting with Mr Ibrahim. The articled clerk had been given instructions to ascertain what documents Mr Ibrahim wanted copied from Worken’s bundle of documents, and to take those documents to a nearby copy shop to be copied, subject to Mr Ibrahim paying for those copies. The Court was told from the bar table that the cost was in the vicinity of $200 to $300, because many of the documents were architectural plans which were oversize and more expensive to copy than would ordinarily be the case. Mr Ibrahim, the Court was advised, refused to pay. He was therefore not provided with any copy documents. Mr Ibrahim therefore refused to provide his copy documents to Worken’s solicitors. Thus, neither party complied with the Court’s first order of 23 February 2009.
In response to a question from the Court on 26 February 2009
Mr Ibrahim advised that if the Marsh Subpoena was complied with it would not be necessary for there to be any further discovery or for further subpoenas to issue, and that he would be satisfied with compliance with the Marsh Subpoena.
The Court made orders that the time for compliance with order 1 made on 23 February 2009 be extended to 11.00am the next day, 27 February 2009. Further, that the costs of photocopying the documents be reserved for later determination, and that each party was to bring to Court the originals of the exchanged copy documents at the hearing of the Application in a Case, which was ordered to be heard at 12.00noon on 27 February 2009. The Court also made it apparent that it would consider the question of general or particular discovery at that hearing.
On 27 February 2009 both parties:
a)advised that the Court’s Order for informal discovery had been complied with; and
b)put submissions concerning the Marsh Subpoena and discovery.
Mr Ibrahim made submissions in support of the Application in a Case, arguing that each of the documents subpoenaed was relevant to his case, a proposition not disputed by Worken’s Counsel. Contrary to his position on 26 February 2009 Mr Ibrahim said that as a consequence of the informal discovery it was apparent that certain documents had not been discovered and that it would be necessary to issue “further subpoenas.” Mr Ibrahim maintained that position, and said that discovery on affidavit was not sufficient because Worken would not comply with the requirement of an order to make discovery on affidavit. When asked by the Court, Mr Ibrahim was unable to explain why, if his submission was correct, Worken was any more likely to comply with a subpoena than an order for discovery. There was no indication from Mr Ibrahim whether any other person needed to be subpoenaed.
Worken submitted that it had produced all of the documents within its possession, power, custody or control by way of informal discovery, and that what Mr Ibrahim was seeking was particular discovery. As Worken had voluntarily produced all documents in compliance with the Court’s order the re-issuance of the Marsh Subpoena was unnecessary in Worken’s view and the Application in a Case ought to be dismissed. Worken said that further subpoenas, to it, were unnecessary for the same reason. If a basis for an order for particular discovery could be established, Worken would provide that discovery. In those circumstances there was no necessity for the issuance of a subpoena directed to Worken.
The Court reserved judgment over the Labour Day long-weekend, to today.
Nature of the Application In A Case
The Application in a Case does not specify the basis for the orders sought. Two possible bases arise:
a)that it is an application under s.104(2) and (3) of the FM Act to review the exercise of a power exercised by a Registrar under s.102(2)(c) of the FM Act; or
b)an order under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth)[8] setting aside an order made in the absence of a party.
[8] “FMC Rules”.
Application for review
The application was filed on 8 January 2009. The dismissal order was made on 18 December 2008. Allowing for the period during which the Court was closed (25 December 2008 to 7 January 2009, re-opening on 8 January 2009) the application was made within the required 7 days.[9]
[9] FMC Rules, r.20.01(1)(c).
FMC Rule 20.02(1) provides that an application for review of a Registrar’s decision “must be” in accordance with the appropriate form. The application is not in accordance with the approved form. Given:
a)the nature of the matter, being an application to review a Registrar’s decision to dismiss a subpoena for production of documents;
b)the fact that Mr Ibrahim is self-represented;
c)that compliance with that provision of the FMC Rules can be waived if it is in the interests of justice to do so;[10] and
d)that the parties are on notice that the Court may treat the matter as an application for review of a Registrar’s decision,[11]
the Court considers that the interests of justice dictate that there need not be compliance with the rule as to the nature of the form upon which the application for review must be made, and the Court can treat the Application in a case as if it were an application for review of a Registrar’s decision.
[10] FMC Rules, r.1.06.
[11] Transcript, 13 February 2009 at page 6.
Treating the matter as an application to review a Registrar’s decision means that it is not necessary for the Court to also consider whether or not the application might be dealt with as an application to set aside under r.16.05(2)(a) of the FMC Rules.
Marsh Subpoena
The Marsh Subpoena is irregular in that what is really sought is the production of documents by Worken. In those circumstances, the subpoena ought to be addressed to the proper officer of Worken.
The Court is prepared, if it is necessary, to direct that the subpoena be amended accordingly, and that there be no requirement to serve, personally or otherwise, the subpoena, and that the present service upon Mr Marsh be taken to be proper service upon the proper officer of Worken Pty Ltd. To do so is consistent with the objects of the FM Act and FMC Rules.[12]
[12] FM Act, ss.3 and 42; FMC Rules, rr.1.03 and 1.06; Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at paras. 21 and 46 per Lucev FM.
The Marsh Subpoena seeks to have the following documents produced:
1.All document including drawings submitted from all tenderers on the 1st of December 2004 To Marsh Civil.
2.Copy of all correspondences between March Civil and the tenderers including e-mails and letters from the 1st of December 2004 until the 13th of January 2005.
3.Copy of all correspondences between Highline and Marsh civil from 1st of December until the end of May 2005.
4.Names of short listed tenderers after the 1st of December and details and documents when their tender was rejected.
5.Letters of rejecting or not accepting the tenders to all tenderers.
6.The entire contract between Highline and Worken Pty Ltd made in May to construct the project subject to the case in Court.[13]
[13] Transcribed without amendment from the Marsh Subpoena.
The facts alleged by Mr Ibrahim are set out in the Court’s judgment in Ibrahim v Highline & Ibrahim v Worken Pty Ltd as follows:
In essence, the facts alleged by the Applicant are as follows:
a)he saw a tender advertisement in early November 2004 in The West Australian newspaper for the design and construction of an office building and workshop for a company called Marshcivil;
b)he contacted Marshcivil and spoke to a representative (Neil Constantine) who refused to accept a design only submission for the tender;
c)he received the tender document by post;
d)he contacted a “company” called Highline which agreed to tender with him jointly, with Highline as builder and the Applicant as designer;
e)he met with Peter Hearne, a representative of Highline, signed an agreement with him, and gave Highline a copy of the tender document;
f)after a few days the Applicant emailed Highline a copy of his design for pricing;
g)on 1 December 2004 the tender was submitted by the Applicant to Marshcivil;
h)the tender document consisted of the proposed building designed by the Applicant (as designer) and a pricing list by Highline (as builder);
i)the Applicant was told that five other tenders were submitted;
j)no winning tenderer was announced;
k)Marshcivil asked the Applicant to make changes in the design;
l)the Applicant worked on design changes, and attended meetings with the “client” and Highline from 1 December 2004 until 13 January 2005;
m)the Applicant several times raised his objections to the changes and the amount of time that he had to put into the process, but was told to do the changes to remain in the tender, and that he was being done “a favour by keeping …[him] in the tender”;
n)the Applicant was told that there was another tenderer also making changes to their tender submission in the same manner;
o)the Applicant was told that the competing tenderers were being used against each other to get more work done for no payment;
p)on or around 17 December 2004 the Applicant was asked to submit his design to the Gosnells Shire Council for development approval;
q)the Applicant asked for a letter of appointment or signed agreement before he submitted the development approval or made any more changes, but was refused;
r)on 7 January 2005 the Applicant and a representative of Highline met with Marshcivil and were told that the tender prepared by Highline and the Applicant had been successful, and the Applicant was again asked to submit a development approval;
s)the Applicant and a representative of Marshcivil visited the Gosnells Shire Council and had a meeting with “two building councillors” (presumably on a date on or after 7 January 2005) at which the design and issues “that needed to be looked at” were discussed;
t)the Applicant again asked for a letter of appointment or a signed agreement, but was again refused, and when he requested that Marshcivil pay him “they stated they had no contract with me and the contract is with Highline”;
u)the Applicant says that he spent more than 280 hours on the tender from start to finish, for which Highline is liable to pay him, but that Highline and Marshcivil “played a gimmick against me not to pay me my fees and take my design.”[14]
[14] Ibrahim v Highline & Ibrahim v Worken Pty Ltd [2008] FMCA 1146 at para.22 per Lucev FM.
The test for production of documents by a witness under subpoena is set out in Cairns, Civil Procedure as follows:
A subpoena for production is the proper procedure to obtain the production of a document from a witness who is not willing to produce it voluntarily. A party is not entitled to compel the production and inspection of a document by issuing a subpoena unless the document is needed for a legitimate forensic purpose. The New South Wales Court of Criminal Appeal set aside a subpoena in Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 and 681-682 because the accused merely wished to see whether the documents sought in a subpoena contained relevant material. To gain access to a document requested in a subpoena the party who issued the subpoena must show that it is “on the cards” that the document will assist that party’s case. In Australian Gas Light Co v Australian Competition and Consumer Commission [2003] FCA 1101 French J thought that it was not appropriate to be “over prescriptive” about the criteria for granting leave to issue a subpoena in a proceeding in the Federal Court. However, the material sought must have some “apparent potential relevance” to the matters in issue. The assistance the party seeking the subpoena might derive from the documents is also relevant as are case management considerations. Leave could be denied to a wide ranging subpoena if it seeks documents of doubtful relevance or risks compromising the commercial privacy of a third party. The possibility of the subpoena causing delay is a material consideration: para [8].
A subpoena for the production of documents must specify the documents required to be produced with sufficient precision to enable the witness to know what is required.[15]
[15] B Cairns, Australian Civil Procedure at pages 435-436.
Put shortly, Mr Ibrahim alleges that he was misled, and that his design tender was used in the construction of commercial premises, even though Worken purported to reject his tender based on that design. He now seeks compensation under the Trade Practices Act 1974 (Cth) on the basis that Worken’s conduct was misleading and deceptive.
There is no dispute that the documents sought to be subpoenaed are relevant.[16] In that context that each of the documents subpoenaed can be said to aid the legitimate forensic purpose of Mr Ibrahim. However, Worken says that it is prepared to voluntarily discover and produce those documents.
[16] Transcript, 13 February 2009 at page 6.
The Court is therefore of the view that the documents sought to be produced have some apparent relevance, and it is possible, even likely, that they may assist Mr Ibrahim’s case. The documents sought are not wide-ranging, and given the potential relevance of them, the range of the subpoenaed documents sought provides no basis to set aside the subpoena. Despite some minor infelicities, the documents sought to be produced are sufficiently precisely prescribed to enable the proper officer of Worken to know what is required. Requiring compliance with a subpoena would not cause delay. Given the time that has lapsed since the application was first instituted the documents ought already be to hand, and, in any event, the Court can make the subpoena returnable within an appropriate short period.
The Court therefore concludes that the subpoena is relevant and appropriate, and that in normal circumstances it would be proper that the order of the Registrar of 18 December 2008 dismissing the subpoena be revoked under s.104(3) of the FM Act, and to have the subpoena reissued and made returnable within a few days. However, the circumstances of this case are not normal, and it is necessary to consider whether discovery is a more appropriate option than revocation of the Registrar’s order and reissuing of the subpoena.
Discovery
This Court does not ordinarily order discovery. Discovery requires the Court determining that it is in the interests of the administration of justice that there be discovery, and making a declaration to that effect.[17]
[17] FM Act, s.45(1).
In Abrahams v Qantas Airways Limited[18] the Court said in relation to discovery that:
[18] (2007) 210 FLR 314; [2007] FMCA 639 per Lucev FM (“Abrahams”).
The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration, and in so doing the Court “must have regard to” whether discovery “will be likely to contribute to the fair and expeditious conduct of the proceeding” and such other matters as the Court considers relevant.[19]
[19] Abrahams FLR at 317 per Lucev FM; FMCA at para.11 per Lucev FM.
and further that, by way of summary, the following:
In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:
(a)the relevance of any documents sought to be discovered;
(b)the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d)whether discovery would narrow the issues;
(e)whether both parties seek discovery;
(f)whether there is consent to discovery;
(g)whether discovery is “of benefit” in the litigation; and
(h)the effect of discovery on litigants, especially, vulnerable litigants.[20]
[20] Abrahams FLR at 321 per Lucev FM; FMCA at para.25 per Lucev FM.
In this case:
a)there is no dispute that Worken can (and has already) produced relevant documents;
b)the volume of documents sought to be discovered is not voluminous, although the documents themselves are possibly unwieldy;
c)there is no Court Book;
d)discovery will not narrow the issues, but nor will it expand them. Discovery may assist in clarifying or defining the issues which have been identified, and assist in their resolution;
e)Mr Ibrahim has not specifically sought discovery. However, in his submissions it is evident that what he seeks is discovery, and that he is using the subpoena process as a substitute for discovery;
f)Worken does not seek discovery, saying that it has already provided discovery, but does not appear to oppose the Court making further orders for discovery, and has indicated that if further orders are made it is prepared to comply with them. Therefore, in the sense that what Mr Ibrahim really seeks is discovery, and in the face of no real opposition from Worken to discovery, there is, if not consent, then no real opposition to discovery;
g)discovery will in the Court’s view be of benefit to this litigation. Because the litigation involves allegations that Worken engaged in misleading and deceptive conduct in relation to a design for the construction of commercial premises, and that it in fact used the design submitted in Mr Ibrahim’s tender, whilst purporting to reject that design, discovery of the designs, tenders and associated correspondence will assist in the resolution of the litigation, and be of benefit in that sense. Discovery will however also be of benefit in a broader sense. Mr Ibrahim’s position is essentially that he wants discovery of all relevant documents, but he pursues this by way of the issuance of the Marsh Subpoena, and now, the suggestion of the issuance of further subpoenas. If discovery is ordered, on oath, there is presently no reason for the Court to believe, and no evidence to support the formation of such a belief, that Worken will not comply with that order for discovery, and discover, produce and allow the inspection of, all relevant documents. If, following that process, there is a necessity for either party to make an application for particular discovery, that application must be made in proper form, and supported by evidence. The Court will not entertain an application for particular discovery otherwise, nor will it hear the trading of unsubstantiated assertions across the bar table; and
h)the size of the discovery in this case does not impose a substantial burden on the litigants, and in particular, Mr Ibrahim as a self-represented litigant. Moreover, if discovery on oath occurs, with a facility to make application for particular discovery, the Court can deal properly with such an application made in proper form and supported by affidavit by reference to the initial discovery on oath.
In all of the circumstances, the Court considers that this is an appropriate case in which the interests of the administration of justice require discovery to be ordered, primarily because it will benefit the litigation in the manner outlined above, and because the documents are such that they are relevant and necessary to a proper resolution of the litigation.
The Court notes that this application is in respect of Worken only, and that no application for discovery has been made in relation to Highline in the other proceedings (PEG 62 of 2008) which are to be heard together with this application. Further, orders for discovery do not prevent the issuance of subpoenas to persons who are not parties to the litigation.
Consideration
The Court must consider therefore whether it is better to:
a)revoke the Registrar’s order dismissing the Marsh Subpoena, and re-issue that subpoena making it returnable within a few days; or
b)make orders for discovery on oath, and for particular discovery thereafter, if necessary.
The Court considers that it is preferable to make appropriate orders for discovery on oath, and particular discovery, if necessary. This is because the Court considers that this is the only proper means of ensuring that, as between the parties, all of the relevant documents are discovered, and, if there is a dispute about that discovery, to provide a means for the Court to resolve it pursuant to an application for particular discovery. The ongoing issuance of further subpoenas to Worken, or officers of Worken, by Mr Ibrahim represents a piecemeal approach by comparison, and is more likely to lead to a situation where when the matter comes on for hearing on 27 May 2009, that the matter is not ready for hearing because relevant documents are not available.
For the above reasons the Court will make an order for discovery on oath, and provision for particular discovery, if that is necessary.
Finally, the Court notes that on a number of occasions during the various directions hearings Mr Ibrahim has referred to a document which he considers essential to his case and which he has indicated that he is not prepared to discover to Worken until the hearing. The Court does not know whether that document has been discovered by way of informal discovery, but the Court would expect that to be the case. Lest that has not occurred, the Court makes it clear that the orders that it is about to make require the discovery of all relevant documents. Civil litigation, particularly in trade practices, is not conducted by ambush. Moreover, if there is a significant document which has the potential to significantly affect the outcome of the litigation, that document ought to be made known to the other party, as it may result in a settlement of the litigation, either by arrangement between the parties or at mediation. At the very least, the document ought to be discovered so that the other party is in a proper position to deal with it at hearing. There will therefore be an order that, other than by leave of the Court, any document which is not discovered will not be admissible or be able to be used at hearing.
Conclusion and Orders
There will be orders for discovery on affidavit by both sides, with provision for particular discovery if that becomes necessary. It follows, that the applicant’s Application in a Case filed 8 January 2009 will be dismissed. There will be consequential orders adjusting the timetable for the filing and serving of affidavits before hearing for each party and for the date of mediation by a Registrar of this Court.
The Court considers that the question of costs in relation to the Marsh Subpoena, but more generally, the question of discovery, might only be properly resolvable following the hearing of the substantive case. Therefore, costs will be reserved.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 3 March 2009
3
6
3