Olympic Amusements Pty Ltd v Gould, Bruce

[1996] FCA 1055

CATCHWORDS

PRACTICE AND PROCEDURE - Particular discovery - Whether statement of claim establishes grounds for belief that documents exist and may be or may have been in the possession of a party

Federal Court Rules O15 r8

Independent Cement & Lime Pty Ltd v Australian Cement Limited & Ors (unreported, Federal Court of Australia, 27 October 1998, Gray J)
Roger Boyd Spencer v Hugall and Hoile Limited (unreported, Federal Court of Australia, 22 January 1991, French J)

No. NG 643 of 1996

OLYMPIC AMUSEMENTS PTY LTD v BRUCE GOULD

MOORE J

SYDNEY

29 November 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )       No. NG 643 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:      OLYMPIC AMUSEMENTS PTY LTD

Applicant

AND:  BRUCE GOULD

Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     29 November 1996

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The application for an order for particular discovery is dismissed.

1. The applicant is to pay the respondent's costs as agreed or taxed.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )       No. NG 643 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:      OLYMPIC AMUSEMENTS PTY LTD

Applicant

AND:  BRUCE GOULD

Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     29 November 1996

REASONS FOR JUDGMENT

On 1 August 1996, an application and statement of claim were filed by Olympic Amusements Pty Ltd ("Olympic") alleging that both Aristocrat Leisure Industries Pty Ltd ("Aristocrat") and Mr Bruce Gould had been engaged in conduct resulting in, inter alia, contravention of both s52 of the Trade Practices Act 1974 and s42 of the Fair Trading Act 1987 (NSW). It would appear that both Olympic and Aristocrat manufacture and sell poker machines and are trade competitors.

It is unnecessary to particularise the precise way in which the case was pleaded in its entirety.  However, it is necessary to note that the alleged contravening conduct related to representations made on 24 September 1995, 15 March 1996 and 22 May 1996.  The representations alleged to have
been made on 24 September 1995 were in a letter of that date from Aristocrat to the Secretary/Manager of the Kemps Creek Sporting and Bowling Club.  The letter was a schedule to the statement of claim.  Its terms suggest it was written by Gould. The representation of 15 March 1996 was in a letter of that date from Aristocrat to both the President and General Manager of the Richmond Ex-services Club.  It again, in terms, suggests it was written by Gould.  It is also a schedule to the statement of claim.  The third representation is in what appears to be an undated letter to the Secretary/Manager of the Concord R.S.L. Club which, in form, was a letter from Gould in a personal capacity.  The letter was not on the letterhead of Aristocrat.  It also was a schedule to the claim.

In due course the proceedings against Aristocrat were settled.  On 28 August 1996, orders were made by consent dismissing the proceedings against it.  The application and statement of claim were amended to reflect this.  However the proceedings against Gould continue and notwithstanding intimations that they might settle, an issue has persisted which is addressed in this judgment.

Olympic seeks particular discovery under Order 15 Rule 8.  The documents sought are:

"All reports, correspondence and memorandums prepared by the Respondent on his own behalf or for Aristocrat Leisure Industries Pty Limited, which:

(a)record his comments, analysis or report on the performance of poker machines;

(b)have been sent or provided to any registered club in New South Wales since 1 June 1995; and

(c)specifically comment on the performance of Olympic Amusements' poker machines."

No affidavit evidence is relied upon in support of the application for an order for particular discovery.  The only documents relied upon by counsel for Olympic were the application and the statement of claim, as amended, including the letters which are schedules to it.  O15 r8 provides:

1. Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party -

(a)to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and

(b)to serve the affidavit on any other party."

In the fairly perfunctory written submissions prepared by counsel then appearing for Olympic, it was argued that an amendment made to the statement of claim in September 1996 provided a sufficient foundation to enliven the provisions of O15 r8.  The relevant paragraph of the amended statement of claim was in the following terms:

"13.Further and in the alternate, Gould has repeated representations to the effect of the First Representations, (a),(b),(d) and (e) set out in paragraph 4 above, and the Third Representations, (a) and (b) set out in paragraph 6 above, to
various representatives of Registered Clubs in New South Wales (the "Further Representations").

Particulars

(i)to be provided after discovery."

The reference to the first and third representations is a reference to the contents of the letters of 24 September 1995 and 22 May 1996.

It is submitted on behalf of Olympic that the statement of claim constitutes a document filed in the proceedings and that the matter pleaded in paragraph 13 provides "grounds for a belief that" the documents for which particular discovery is sought may be or may have been in the possession, custody or power of Gould.  The use of the pleadings in this way is, in my opinion, entirely self serving.  It may well be that in an appropriate case a statement of claim, when read with the defence, would reveal that certain documents were or might be in the possession of a party because there was an express or implied concession that they were or might be.  Similarly a pleading, whether a statement of claim, defence or some other pleading, may by itself reveal a similar concession. 

However, the amended statement of claim in these proceedings simply involves an assertion that certain representations were made.  There is no evidence before the Court that would sustain, in my opinion, an inference sufficient to found a belief that other letters, in terms similar to those appearing as schedules to the statement of
claim, were also written by or on behalf of Gould or, indeed, by or on behalf of Aristocrat. 

The letters themselves address directly the circumstances of the clubs to which they related.  The letters do not contain material suggesting they were being written as part of a strategy adopted by Aristocrat and/or Gould to secure, in relation to clubs other than the three specific clubs, sales of Aristocrat machines at the expense of the machines of Olympic.  While the existence of three letters of that type may, in conjunction with other evidence, support such an inference sufficient to form the requisite belief, there is no such evidence.

Olympic has not demonstrated grounds for a belief that the relevant documents exist and may thus be or may have been in the possession, custody or power of Gould.  An order should not be made under O15 r8 based only on speculation about whether particular documents do or might exist: see Independent Cement & Lime Pty Ltd v Australian Cement Limited & Ors  (unreported, Federal Court of Australia, 27 October 1988, Gray J.  His Honour said:

"It is pure speculation that there might be such documents, and pure speculation is not a sufficient ground for the making of an order of the kind sought."

See also Roger Boyd Spencer v Hugall and Hoile Limited (unreported, Federal Court of Australia, 22 January 1991, French J.

I dismiss the application for an order for particular discovery.  The applicant is to pay the respondent's costs as agreed or taxed.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:  ........ ........ ......
  Alexandra George

Dated:    29 November 1996

APPEARANCES

Counsel for the Applicant:           Mr L.V. Gyles

Solicitor for the Applicant:         Messrs Welsh James

Counsel for the Respondent:          Mr S. Finch

Solicitor for the Respondent:             Gilbert & Tobin

Dates of Hearing:  20 November 1996

Date of Judgment:  29 November 1996