Richardson Pacific Ltd v Fielding
[1990] FCA 631
•22 AUGUST 1990
Re: RICHARDSON PACIFIC LIMITED
And: ANTHONY MICHAEL FIELDING; DAVID BRUCE McCLAER and ROLADUCT PTY LTD
No. V G205 of 1989
FED No. 631 Practice and Procedure
26 FCR 188
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)
CATCHWORDS
Practice and Procedure - circumstances in which order for third party discovery was made - discussion of scope of Order 15A of the Rules.
Federal Court Rules, Order 15A
HEARING
SYDNEY
#DATE 22:8:1990
Counsel for the applicant: Mr D.M. Yates
Solicitors for the applicant: Messrs Freehill, Hollingdale and Page
Counsel for the respondents: Mr J.M. Ireland
Solicitors for the respondents: Messrs Abbott Tout Russell Kennedy
JUDGE1
Order 15A of the Federal Court rules expands the court's armoury to deal with cases which the previous law could not adequately reach. It is intended to overcome the limitation on the use of a subpoena duces tecum to obtain access to documents bearing upon litigation, which are not held by a party to the litigation but by some third party. In Small's case (The Commissioner for Railways v. Small (1938) 38 SR (NSW) 564), it was pointed out that a subpoena duces tecum could not be used as a substitute for discovery from a party or to obtain discovery from a third party. The new provisions contained in Order 15A, by permitting discovery to be obtained from a third party, overcome that difficulty, and also provide a more practical and convenient means by which a party may obtain an opportunity to examine documents in advance of the hearing and with sufficient time to take such further steps as a perusal of them may suggest.
I do not think that much light is to be obtained from comments which have been made in cases, which were cited to me, dealing with other rules in this area worded in a different fashion. In particular, the decision of the House of Lords in O'Sullivan v Herdmans Limited (1987) 3 All England Reports 129 deals with a rule covering so much narrower an area that I do not think it can reasonably be regarded as assisting in the construction of the plainly comprehensive provisions of Order 15A. Although the rule in the Northern Territory is much less narrow than the English rule, it also is, in at least one significant respect, considerably narrower than order 15A, since it excludes the making of an order for discovery in respect of a class of documents. For that reason, I do not think much guidance is to be obtained, either, from the decision in Hall v Alice Springs Veterinary Clinic Pty Ltd (1982) 17 NTR 13.
It is said that the court has traditionally adopted a policy of not burdening unduly a non-party to litigation in a manner comparable with the burden which is necessarily assumed by a party. As a generalisation this is true. It is then said that this policy would bar a general order for discovery by a third party not containing a quite precise specification of the documents to be discovered. While, in many situations, I accept that this represents a correct view of the approach which should be taken, indications to the contrary being absent, it should be pointed out that a purpose of Order 15A is, quite expressly, to enable discovery to be obtained in some cases where anything less than the broad obligations imposed by an order for discovery would simply not meet the case.
The real question is whether the circumstances are sufficiently special to justify the use of the Order, for in my opinion the Order is intended, not for the general run of case, but for cases which do have about them something outside of the ordinary. I do not agree that the court cannot go beyond what could be done upon a subpoena duces tecum issued in advance. I think in my discussion of Small's case, I have already made that plain. One limitation upon the use of Order 15A, which has been suggested, is contained in Williams Aviation Pty Ltd v Santos Limited (1985) 40 SASR 272, where it was held that, normally, an order for disclosure of documents by a stranger to proceedings should be made only when the stranger to the proceedings has the only copies of the particular documents, disclosure of which is sought, and the party to the proceedings, who is seeking disclosure, has exhausted his rights with respect to discovery against the other party to the proceedings. This the kind of general proposition which highlights the exceptional nature of Order 15A. I accept the general proposition, but at the same time I do not think that it would be at all appropriate to read down the language of Order 15A by making such a general proposition into a fetter, restricting the applicability of the Order in cases where the evidence suggests that it would provide an appropriate and reasonable solution to real problems.
In the present case, the evidence shows that, at this interlocutory stage, it may be concluded provisionally, and for the purposes of this application, that there is a close relationship between the respondents and the non-parties sought to be subjected to the requirement of giving discovery. That relationship is quite unusual. It commenced at a time when the individual respondents were in the applicant's employ, and it has continued during the period of the setting up of business activities of the respondents which are the subject of the litigation. It has been so close as to enable the respondents to obtain the use of machinery and equipment, made available to them on the basis that an unspecified payment in respect of that availability will be delayed into the indefinite future. These are plainly not ordinary circumstances. I accept that tighter lines than those which have been drawn by the applicant's counsel, in the drafting of the orders sought, should normally be drawn in the making of orders for third party discovery. But in the special circumstances of this case, it seems to me that a reasonably broad order for discovery is appropriate, and that it is plainly probable that there do exist documents relevant to the issues in the case, which orders in the terms prayed in the application would be likely to bring to light.
I agree with the view expressed by Mr Justice Kaye in the apparently unreported decision of Keviris Pty Limited v Capital Building Society, delivered 9 February 1988, which was cited to me by Mr Ireland, that the new jurisdiction which is exercised, when rules such as those contained in Order 15A are implemented, should be exercised with caution. However, with respect, I do not think that the exercise of that jurisdiction should be fettered by any precise rules not suggested by the terms of Order 15A itself. Rules, such as those which have been suggested in the cases, should, I think, be taken rather as general guides, as indeed it is plain was the approach adopted by Mr Justice O'Loughlin in the Williams Aviation case to which I have already referred.
For these reasons, in the circumstances of the present case, I propose to make orders along the lines of those sought in the notice of motion. I shall reserve all questions of costs in relation to this application, and the costs of the third parties ordered to make discovery. Their costs, on a solicitor and client basis, will need to be provided for, and I reserve them at this stage. The application has been made without prior notice to them, but upon notice to the respondents, who have appeared and opposed it. I will reserve liberty to the parties the subject of the orders to apply, upon two days notice to the applicant, for the setting aside of these orders, should they be so advised, provided the application is made within 21 days from the date of service of the order upon them. If no application is made to set aside the orders, I order that they be complied with by the filing and service of a verified list documents within 28 days of service of each order.
I make orders as sought in paragraphs 1, 2, and 4 of the notice of motion. I order in addition that at the same time as service is effected of these orders there be served on each person served a copy of the amended statement of claim, the request for further and better particulars and the further and better particulars referred to in the orders.
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