Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia
[2007] WASC 65
•22 MARCH 2007
LEIGHTON CONTRACTORS PTY LTD -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2007] WASC 65
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 65 | |
| Case No: | CIV:1570/2006 | 9 MARCH 2007 | |
| Coram: | LE MIERE J | 21/03/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Defendant ordered to give limited further discovery Commissioner of Main Roads to give limited non-party discovery | ||
| B | |||
| PDF Version |
| Parties: | LEIGHTON CONTRACTORS PTY LTD (ABN 98 000 893 667) PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA |
Catchwords: | Civil practice and procedure Discovery Whether defendant should give discovery of deleted emails Whether inconvenience of discovering emails outweighs likely probative value Turns on own facts Civil practice and procedure Non-party discovery Whether category of documents sought too broad Turns on own facts |
Legislation: | Practice Direction No 4 of 2006 Rules of the Supreme Court 1971 (WA), O 26 r 7, O 26A |
Case References: | Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 32 NT Power Generation Pty Ltd v Power and Water Authority [1999] FCA 1623 NT Power Generation Pty Ltd v Power and Water Authority [1999] FCA 1669 Oberdan v Commonwealth Bank (1999) 75 SASR 152 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Defendant
Catchwords:
Civil practice and procedure - Discovery - Whether defendant should give discovery of deleted emails - Whether inconvenience of discovering emails outweighs likely probative value - Turns on own facts
Civil practice and procedure - Non-party discovery - Whether category of documents sought too broad - Turns on own facts
Legislation:
Practice Direction No 4 of 2006
Rules of the Supreme Court 1971 (WA), O 26 r 7, O 26A
(Page 2)
Result:
Defendant ordered to give limited further discovery
Commissioner of Main Roads to give limited non-party discovery
Category: B
Representation:
Counsel:
Plaintiff : Mr J Delkousis
Defendant : Mr J A Thomson
Solicitors:
Plaintiff : Mallesons Stephen Jaques
Defendant : State Solicitor's Office
Case(s) referred to in judgment(s):
Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 32
NT Power Generation Pty Ltd v Power and Water Authority [1999] FCA 1623
NT Power Generation Pty Ltd v Power and Water Authority [1999] FCA 1669
Oberdan v Commonwealth Bank (1999) 75 SASR 152
(Page 3)
1 LE MIERE J: On 29 June 2006 I made an order that each party in this matter give general discovery.
2 On 9 August 2006 Richard Dorham Mann, the Director – City Project for the defendant, swore an affidavit verifying the list of documents provided by the defendant. The list consisted of 465 items, some of which consisted of bundles. The list did not specify any documents that might have at any time been in the possession, custody or power of the defendant notwithstanding they were not then in its possession, custody or power, other than the originals of copy documents specified in the list.
3 On 12 January 2007 the plaintiff applied for an order that the defendant give further and better discovery of documents falling into the categories described in the schedule attached to its chamber summons. At the same time the plaintiff applied for orders for non-party discovery by the Commissioner of Main Roads, the Department of Treasury and Finance, the Minister for Planning and Infrastructure, the Minister for Housing and Works, the Department of Housing and Works, the Australian Bureau of Statistics ("ABS") and Access Economics.
4 I heard those applications on 5 February 2007. On 13 February 2007 I delivered reasons for decision (Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 32) in which I found that the defendant should give further and better discovery of documents in categories 4 and 5 of the schedule. I also found that the Commissioner of Main Roads and the Department of Housing and Works should each give non-party discovery of documents in specified categories. The plaintiff's requests for non-party discovery from ABS and Access Economics were resolved between the parties.
5 On 22 February 2007 the matter again came before me to make orders to give effect to my reasons for decision of 13 February. Counsel for the defendant and for the Commissioner of Main Roads raised two issues concerning the orders that should be made. First, counsel submitted that the defendant had only recently discovered the existence of deleted emails and the defendant should not be required to give discovery of those deleted emails. Secondly, counsel submitted that I had mistakenly found that the Commissioner should provide non-party discovery of the category 5 documents on the basis of a concession that the documents in that category were relevant whereas no such concession had been made. In so far as the further and better discovery sought from the defendant was concerned I made an order that the defendant provide
(Page 4)
- further and better discovery of "correspondence, excluding deleted emails, between the defendant and other WA government agencies (including but not limited to the Department of Main Roads, the Department of Treasury and Finance and the Department of Housing and Works) which relates to any matter in issue in the proceedings" and stood over the question of whether the defendant should give discovery of the excluded deleted emails pending argument whether discovery of the deleted emails should be required. In so far as the Commissioner of Main Roads is concerned, I declined to make an order that the Commissioner should give discovery of the category 5 documents, pending argument on that matter.
6 On 9 March 2007 I heard argument on the outstanding issues concerning discovery by the defendant and non-party discovery by the Commissioner. I will deal with each issue separately.
The deleted emails
7 In substance, the defendant seeks to limit the discovery which it is obliged to make by excluding the deleted emails from the documents it is required to discover.
Evidence
8 Mr Mann, who swore the defendant's affidavit of discovery, swore an affidavit in support of the defendant's application. He is directly responsible for all matters related to the delivery of the new Metro Rail City Project, including all matters related to the Project Deed. In particular, he assumed the responsibility of dealing with the manner of the substitution of another index after Table 42 of Catalogue 6427.0 ("table 42") was discontinued by the ABS in June 2004 and with the subsequent dispute in relation to this matter, which is now the subject of this action. Mr Mann swears that within the defendant he was directly involved in, and generally solely responsible for, all communications between the defendant and the ABS in relation to their construction of a substitute index to replace table 42. Mr Mann deposes that his practice in relation to the deletion of emails sent and received by him is as follows:
"(a) I send and/or receive emails;
(b) emails which I receive and require action I attend to;
(c) at the time of sending or receiving of any email or immediately thereafter I make a personal assessment based on my experience and understanding of the particular issues in question in relation to the significance
- of the email with respect to the potential need to refer to the document in the future;
- (d) if in my assessment an email has sufficient significance, it is saved by me in soft or hard copy form or both to the relevant project file;
(e) once this has been done and the email saved I delete the email;
(f) if I do not consider an email to have sufficient significance I simply delete the email; and
(g) all emails which I delete are automatically deleted from my personal mail box when I shut down my personal computer each day."
9 Mr Mann swears that accordingly, any deleted emails were deleted by him by reason of the fact that:
"(a) they had been saved to the formal project file; or
(b) they contained no additional information of significance (based on [his] assessment as described … above) to records that had already been saved to the project files; or
(c) the information therein was considered by him to be either of such little relevance or significance (based on [his] assessment … described above) that the email did not require to be saved."
- Mr Mann concedes that from time to time he deleted emails relating to the new Metro Rail City Project including emails to and from other personnel within the defendant, other WA government agencies and the ABS, which emails could perhaps be considered to relate to issues in these proceedings.
10 Mr Mann swore that until the week prior to swearing his affidavit on 27 February 2007, he considered that once emails had been deleted from his personal mailbox they were forever lost. In the week beginning 19 February the defendant's solicitor, Mr Egan, asked Mr Mann about Main Roads documentation evidencing correspondence to and from Mr Mann which the defendant had not discovered and asked Mr Mann whether any emails deleted by him could be recovered from the defendant's system. At that stage Mr Mann did not consider that deleted
(Page 6)
- emails were retained by the defendant. He advised Mr Egan to contact a person within the defendant's information and technology branch to confirm his understanding.
11 Philip Leslie Schubert is Manager, Infrastructure Systems for the defendant. He is responsible for information technology services for the defendant. On 21 February Mr Mann was informed by Mr Schubert that:
"(a) contrary to usual government agency practice the Defendant has the capability to retrieve and restore deleted emails;
(b) the Defendant has possessed this capability since 2002 for emails from 2002 onwards;
(c) the capability was introduced in order to substantiate or to disprove, as the case may be, industrial relations disputes such as sexual harassment claims made by employees of the Defendant; and
(d) the capability is not widely known amongst employees of the Defendant."
- Mr Mann said, in essence, that he did not refer to the deleted emails in his affidavit of discovery because he assumed that they were irretrievable.
12 Mr Schubert swore two affidavits and gave oral evidence. In his oral evidence Mr Schubert described the defendant's electronic mail system. It consists of two servers. All the mail moving around within the defendant and entering and leaving the defendant is stored on one of the servers in a file called the mail journal. There is another file called the mailbox file which contains emails specific to each user. The defendant has implemented processes to ensure that in the event of a disaster it is able to recover the mail as it stands at the time that the system failed. That is done by backing up the mail. The defendant backs up its mail journal which contains all mail within, received by and sent by the defendant. There are various backups. At the end of each month the defendant has a backup copy of everything in the mail journal at the end of that month. There are 12 backup tapes for each year although each backup tape may contain more than one month's mail. The data recorded on the backup tapes includes everything that the defendant mails out to its Transperth customers and all emails that come to the defendant including unwelcome emails and spam emails. In his affidavit Mr Schubert stated that until June 2006 when the defendant installed spam filtering software the
(Page 7)
- defendant received approximately 8,800 spam emails each day. In total 11,460,689 emails traversed the defendant's email system in the period June 2004 to January 2007.
13 Mr Schubert said that the deleted emails must be recovered from the backup tapes and restored to a mail server. The defendant has started on that task. Initially the defendant tried to recover the mail to the server that it is using for its everyday operations. However, that was unsuccessful because there was too much mail to recover. So the defendant spent a week creating a new environment, that is a new set of machines and tape drives and all the things needed to be able to recover the mail. Between 22 February and 9 March 2007 one person had been engaged fulltime for 78 hours on this task together with the assistance of other people from time to time. After the emails have been recovered onto the server the server then has to read the files and reindex the mail. By 9 March 2007 the defendant had successfully recovered five months of information from the backup tapes. Once the emails are on the server it is then necessary to search for the emails that might be relevant to the present proceedings.
14 The plaintiff relies upon an affidavit sworn by Richard Adams, a forensic accountant employed by Deloitte Touche Tohmatsu. Mr Adams refers to the steps that need to be undertaken to recover deleted emails. He suggests that searches take place over a limited number of mailboxes relating to specific users. However, Mr Schubert explained in his evidence that the defendant's backup tapes are backups of the mail journal, not individual mail boxes. It is not possible to recover individual mail boxes onto the defendant's server. Mr Schubert estimated that to recover all of the material on backup tapes covering the period June 2004 to January 2007 would take a further 42 days after 9 March 2007. Mr Schubert estimated that it would take about one additional day to conduct an initial search of the information recovered from each tape to identify emails according to sender or recipient. Thus, it would seem that it would take in the order of a further two to three months for the defendant to complete the process of recovering all of the information on the backup tapes between June 2004 and January 2007 and searching the information to locate emails from relevant recipients and senders.
Should the Court review its earlier discovery order?
15 I first consider whether the Court should entertain the defendant's application. It is generally undesirable and an injustice may flow from the re-litigation of matters already decided and the ordinary rule of practice is that an application to set aside, vary or discharge an interlocutory order
(Page 8)
- must be founded on a material change of circumstances since the original application was heard or the original order made, or where there has been discovery of new material which could not reasonably have been put to the court on the hearing of the original application. The overriding principle governing the court's approach to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances: see Mansfield J in NT Power Generation Pty Ltd v Power and Water Authority [1999] FCA 1669 at [5] – [6].
16 The defendant did not raise the issue concerning the deleted emails prior to the order for general discovery being made and Mr Mann did not refer to the matter in his affidavit of discovery because, in effect, he was not aware that the emails existed. In those circumstances, I am prepared to consider the defendant's submission that the original order and the orders arising out of the plaintiff's application for further and better discovery should be reconsidered.
Relevant principles concerning discovery
17 A party does not have a right to discovery. The court has broad discretionary powers in relation to discovery both in its inherent jurisdiction and under the Rules. Order 26 r 7(3) of the Rules of the Supreme Court 1971 (WA), provides that the court may order that discovery be limited to specified documents or specified classes of document, may order that discovery be limited to documents that are directly relevant to specified matters in question and may order that discovery be given at specified stages of the action. Order 26 r 7(3) evinces a policy of the rules that discovery should only be ordered to the extent that it is necessary for the attainment of justice.
18 Factors to be considered in making or framing an order for discovery depend upon the circumstances of each case but will often include the likely time, cost and inconvenience of making discovery of any documents or classes of documents by way of comparison with the amount of documents involved in the action, the relative importance or likely relevance of them in relation to any issue or issues in the action and the probable effect on the outcome of the action of a party obtaining access to the documents or class of documents. Generally, the court will try to avoid making discovery orders that would place an oppressive burden on a party such that it must devote disproportionate resources to the search for relevant documents.
19 Practice Direction 4 of 2006 (Commercial and Managed Cases List) states that the principle of proportionality will be applied to cases in the
(Page 9)
- Commercial and Managed Cases List. That principle may be generally expressed in terms of requiring the court to deal with cases, so far as practicable, in ways that are proportionate to the importance of the issues involved, to the value of the subject matter involved, to the complexity of the issues, and to the financial position of each party, consistently with the overriding obligation of the court to deal justly with its cases. In Oberdan v Commonwealth Bank (1999) 75 SASR 152, Lander J observed that the extent of the obligation to make discovery is much greater in contemporary times. That is because of the proliferation of records and because a document now includes not only writing on paper but other documents including tapes storing electronic data. If a party is a corporation the obligation is even more onerous. The larger the corporation, the greater the burden. The more complex the litigation, again the greater the burden. When the factual situation is said to have arisen over a number of years the obligation is even greater. However, the burden to make discovery in those circumstances is not oppressive by reason that a party is a large corporation and the issues are complex and because the factual situation is said to have arisen over a number of years. There is no doubt it will be onerous but that is not the test.
20 In NT Power Generation Pty Ltd v Power and Water Authority [1999] FCA 1623, Mansfield J considered a notice of motion which sought to limit the discovery which the respondents were obliged to make to emails which since the order for discovery was made had existed in hard copy form. Mansfield J said at [2] that the court should not make an order for discovery "unless satisfied that the order is necessary at the time when the order is made". Having said that there had been a number of decisions explaining what is meant by the expression "necessary" Mansfield J said that those decisions indicate that:
"[T]he Court should make such order as is necessary in the interests of a fair trial, but having regard to case management principles. Case management principles, as some decisions point out, includes a measure of the utility of the investigative process to provide discovery and the documents which are likely or possible to be identified as discoverable as a result of that process, against the burden imposed in that investigative process."
- Mansfield J was considering an application under O 15 r 3 of the Federal Court Rules which are in different terms than the rules of this Court. Nevertheless, the principles expressed by Mansfield J apply to the
(Page 10)
- exercise of this Court's discretion under O 26 r 7 and the Court's inherent jurisdiction.
The relevant factors in this case
21 The evidence of Mr Schubert demonstrates that if the defendant is not relieved of the obligation to make discovery of deleted emails then the discovery obligation will impose a substantial burden on the defendant. The cost and inconvenience to the defendant must be considered in the context of the value of the subject matter involved and the financial position of the defendant. Counsel for the plaintiff submitted that the amount in issue in the proceedings may be in the order of $50 million. The defendant is a statutory authority and agent of the State. It is a large corporate body. The defendant did not suggest that it does not have the financial or other resources to do the things required to give discovery of the deleted emails or that to do so would inhibit the delivery of its services to the public.
22 There is a significant dispute between the parties concerning the relative importance or likely relevance of the deleted emails in relation to the issues in the action and the probable effect on the outcome of the action of the plaintiff obtaining access to the deleted emails. The defendant submits that there is not likely to be any great benefit to the plaintiff from the defendant discovering the deleted emails for a number of reasons. The first is that the deleted emails are not likely to contain significant information that is not contained in other documents discovered by the defendant or by the non-parties. That is because Mr Mann's practice in relation to the deletion of emails sent and received by him leads to that conclusion. Secondly, the true issue in this case is the objective nature of the index or indexes that are put up and how they are constructed. The deleted emails are not likely to contain any information relevant to those issues.
23 I discussed the issues in this action in my judgment on the plaintiff's application for further and better discovery and for non-party discovery (Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia (supra)). In short, the issue in this action is what index should be used in the rise and fall calculation (as to the relative cost of building materials and labour) in substitution for the table 42 index. That gives rise to two further issues. The first is: what is the proper construction of Annexure G of the Project Deed, which provides for the substitution of an index? The second is: what index should be substituted having regard to the proper construction of Annexure G? The pleadings do not disclose
(Page 11)
- that those issues involve the consideration of material extrinsic to the Project Deed other than the matters pleaded by the plaintiff in pars 17 – 19 of the statement of claim. The plaintiff alleges that the appropriate substitute index for the table 42 index is one that reflects future variations in the prevailing costs of labour and materials of the general character used in carrying out the contracted works. The defendant submits, and I accept, that whether indexation reflects future variations in the prevailing costs of labour and materials will depend upon the manner in which index is constructed.
24 The plaintiff also alleges that whether an index reflects future variations in the prevailing costs of labour and materials may depend upon extrinsic evidence, such as the nature and location of the contracted works, industry practice and overall movements in the five indexes which it has proposed. However, the defendant submits that even if the court accepts this position, the plaintiff does not allege that the court should itself determine what constitutes reasonable indexation. The plaintiff seeks an order referring the matter to a court appointed referee. The plaintiff accepts that proposition. Hence, the plaintiff has not pleaded a case which requires discovery of material relating to the extrinsic matters referred to in the statement of claim for the purpose of determining the matters for trial.
25 The plaintiff raised an additional matter, namely that it was directed to use Table 48 of ABS Catalogue 6427.0 as the replacement index by the defendant, but that this direction is not binding or, if it was binding, the making of a direction was a breach of an implied term by the defendant to act fairly and reasonably. However, I accept the defendant's submission that this is not an issue for trial because the defendant accepts that it only had the power to make a binding direction to the extent that Table 48 of Catalogue 6427.0 was, on a proper construction of the Project Deed, the correct index to substitute for table 42.
26 Having regard to the issues for trial, it is unlikely that the deleted emails will include documents that are directly relevant to any matter in question at trial. I have previously ordered the defendant to give discovery of documents other than documents that are directly relevant to any matter in question at trial. That is because the Rules empower the court to require a party to give discovery not only of documents that are directly relevant to any matter in question but also of documents that relate to any matter in question in the sense that they may fairly lead a party to a train of enquiry which may enable that party to advance its own case or to damage the case of its adversary.
(Page 12)
27 If the defendant had not embarked upon the course of recovering the deleted emails from the backup tapes it might have been appropriate to relieve the defendant from the obligation of giving discovery of those documents. That is because the burden of giving discovery of those documents is disproportionate to the potential probative value of the electronic information sought. However, the defendant has started upon the process of recovering the deleted emails from the backup tapes. By 9 March the defendant had recovered the emails from five backup tapes representing approximately five months' deleted emails. There is still work required to search the recovered information to identify the relevant emails. However, the work involved in searching the data to identify the relevant emails is considerably less than the work involved in recovering the information from the backup tapes. It appears from Mr Schubert's evidence that the searching task may take in the order of half as long as the recovery task. In those circumstances the defendant should search the information on the backup tapes from which it has already recovered the mail journal and give discovery of the information recovered from those backup tapes. Examination of the documents discovered from those recovered backup tapes will enable the parties and the court to make a better assessment of the likely utility of the defendant discovering documents recovered from the remaining backup tapes.
28 The backup tapes from which the defendant has presently recovered information were selected by the defendant. I will order that the defendant give discovery of the documents recovered from a further three backup tapes to be nominated by the plaintiff, after conferral with the defendant. That is to give the plaintiff the opportunity to obtain discovery of the documents on the backup tapes which in the opinion of the plaintiff, or its advisers, are most likely to contain documents of probative value.
29 Once the defendant has given discovery of documents on the backup tapes from which the information has been recovered, the parties should each examine the documents discovered from the restored backup tapes and consider the probative value of the documents thus discovered. The parties should then confer and discuss any further recovery of deleted emails or other documents from the backup tapes. If the parties do not reach agreement then the plaintiff may apply to the court for orders that the defendant give discovery of documents from the remainder of the backup tapes or some of them. In that event, a major consideration for the court will be the potential probative value of the documents on the backup tapes, having regard to the probative value of the documents discovered from the backup tapes already restored.
(Page 13)
30 I will hear from the parties as to how long the defendant should have to give discovery of the restored backup tapes in accordance with my decision.
Non-party discovery by Commissioner of Main Roads
31 On 22 February 2007 I ordered that the Commissioner of Main Roads give non-party discovery of all correspondence between the Commissioner and John Stranger of the John Stranger partnership regarding the construction of an index to replicate or replace table 42. In my reasons for decision on the plaintiff's application for non-party discovery by the Commissioner ([2007] WASC 32) I found that the Commissioner should also give discovery of documents in categories 4 and 5 of the schedule, that is:
(a) all correspondence between the Commissioner and the ABS relating to the construction of an index to replicate or replace table 42 (category 4);
(b) all documents, correspondence, memorandums or reports relating to the replication or replacement of table 42 (category 5).
32 I ordered discovery of those documents on the basis that counsel for the Commissioner had agreed that the documents in those categories were relevant to matters in issue in the proceedings. The Commissioner has now submitted that counsel for the Commissioner did not concede the relevance of the documents in the two outstanding categories. I have read the transcript of oral submissions, and in particular page 211 of the transcript to which I have been referred by counsel. On a fair reading of the transcript counsel did not concede that the documents in these categories are relevant to matters in issue in the proceedings. In those circumstances I will consider afresh whether or not the Commissioner should give discovery of those categories of documents.
33 The parties have reached agreement concerning the discovery of the category 4 documents. Accordingly, it is only necessary to consider whether or not the Commissioner should give discovery of the category 5 documents.
34 Order 26A empowers the court to order a non-party to give discovery of all documents that relate to any matter in question in the action if there are reasonable grounds for believing that the non-party had, has, or is likely to have had or to have, possession of documents that relate to any matter in question in the action. The court has a discretion whether to
(Page 14)
- order a non-party to give discovery and if so to limit the documents in respect of which discovery must be given. A non-party should not be required to give discovery of specified documents or classes of documents merely on the off chance that something might show up from which some relatively weak inference might be drawn that might advance the case of the requesting party or be prejudicial to another party, or that the documents might lead to some train of enquiry that might advance the case of the requesting party or damage the case of another party.
35 The category of documents is extremely broad. I am satisfied that the category of documents includes documents that relate to a matter in question in the action in the sense that they may lead to a train of enquiry which would either advance the plaintiff's case or damage that of the defendant. However, the category of documents is drawn so widely that the burden of giving discovery of those documents may outweigh the potential benefit to the plaintiff of obtaining that discovery.
36 The category of documents includes a large number of documents irrelevant to any issue in this action. To the extent that the category includes relevant documents, they are likely to be included in categories 3 and 4, both of which I have ordered, or will order, the Commissioner to give discovery. Counsel for the Commissioner submits that a lot of documents that are clearly irrelevant will be picked up by the category 5 documents. In particular, the category includes documents that relate to many contracts that referred to table 42 and the category would include memoranda, correspondence or other documents concerning those contracts that are irrelevant to any issue in this matter. Counsel submitted that it may be inferred that it would be unduly burdensome to give discovery of a lot of documents that are irrelevant.
37 Counsel for the plaintiff responded to the point made by counsel for the Commissioner by submitting that the plaintiff does not seek discovery of documents relating to other contracts. Counsel submitted that that matter may be dealt with by limiting the category to documents relating to packages E and F of the Perth Metro Rail Project.
38 Counsel for the Commissioner further submitted that category 5 does, or arguably does, include documents in category 2, that is documents concerning any general decision or policy as to the use of indexes in contracts for the construction of works which contain a rise and fall provision, including any such documents considering the discontinuance of the table 42 index by the ABS. In my reasons for decision published on 13 February 2007 (Leighton v Public Transport
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- Authority of Western Australia (supra)) I declined to order the Commissioner to give discovery of that category of documents. Counsel for the plaintiff concedes that those documents should be excluded from any further discovery ordered to be given by the Commissioner.
39 Counsel for the Commissioner expressed a further concern that category 5 might include documents that relate to the replacement of the table 42 index or relate generally to the commercial situation that arose with the removal of the table 42 index. Counsel submitted that whilst those or other documents might concern a general policy or decision they might also be said to relate to the replication or replacement of table 42. In my view the words "in respect of package E or package F of the Perth Metro Rail City Project" will confine the category of documents to documents that refer to package E or package F and do not include documents referring to general policy or decision matters of the sort referred to by counsel for the defendant.
40 In my view the Commissioner should give non-party discovery of category 5 documents limited in the manner proposed by counsel for the plaintiff. That is, the Commissioner should give discovery of: "all documents, correspondence, memos or reports relating to the replication or replacement of table 42 in respect of package E or package F of the Perth Metro Rail City Project".
41 The parties should bring in a memorandum of orders to give effect to these reasons.
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