Trade Practices Commission v Santos Limited - [1993] FCA 292

Re: TRADE PRACTICES COMMISSION
And: SANTOS LIMITED and SAGASCO HOLDINGS LIMITED
No. VG377 of 1992
FED No. 292
Number of pages - 4
Practice and Procedure
(1993) ATPR 41-232
(1993) 42 FCR 203
(1993) 120 ALR 120

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Heerey J(1)

CATCHWORDS

Practice and Procedure - obligation to make continuing discovery - documents coming into possession or power after order for general discovery - discretionary factors influencing specific orders made for further discovery - Federal Court Rules O.15 r.7A.

Federal Court Rules O.15 r.6(2), O.15 r.7A.

Mitchell v Darley Main Colliery Co (1884) 1 Cab and El 215.

Myers v Elman (1940) AC 282

TNT Management Pty Ltd v Trade Practices Commission (1983) 47 ALR 693

HEARING

MELBOURNE, 29 April 1993

#DATE 29:4:1993

Counsel for the applicant: M Goldblatt

Solicitor for the applicant: Australian Government Solicitor

Counsel for the first respondent: A C Archibald QC and D Shavin

Solicitor for the first respondent: Freehill Hollingdale and Page

Counsel for the second respondent: J Beach

Solicitor for the second respondent: Finlaysons

ORDER

The Court Orders that:

1. On or before 10 May 1993 the first respondent file and serve a

list of all documents which have come into its possession, custody

or power between 25 December 1992 and 30 April 1993, inclusive.

2. It shall be sufficient compliance in relation to claims for legal

professional privilege for the first respondent to identify documents by reference to classes or categories of documents.

3. Liberty to apply for further directions as to discovery is

reserved.

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

JUDGE1

HEEREY J The second respondent (Sagasco) applies for an order for further discovery from the first respondent (Santos). On 8 December 1992 Northrop J made an order for general discovery by, amongst others, Santos. Under O.15 r.6(2) Santos was required to file and serve a list of documents

"which shall enumerate the documents which are or have been in the possession, custody or power of the party making the list."

His Honour's order required the list to be filed by 24 December 1992. In the event it was filed on 7 January 1993 and a supplementary list was filed on 16 April.

There has been debate between the parties about discovery relating to two events which occurred after the time fixed for discovery, namely the acquisition by Santos of a pipeline belonging to AGL, and the settlement by Santos of proceedings with Crusader Resources NL. Santos has voluntarily discovered documents in relation to those two issues. However, it maintains that it is under no obligation to make continuing discovery in the sense of discovery of documents which only came into its possession, custody or power after 24 December 1992.
Central to this question is O.15 r.7A which provides:

"Where a party has been required or ordered to give discovery, that party shall be under a continuing obligation to discover…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Trade Practices Commission v Santos Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1993] FCA 292
Decision Date: 29 APRIL 1993

CaseChat Overview and Summary

The Trade Practices Commission sought an order for further discovery from Santos Limited, following a previous order for general discovery. The Commission claimed that documents had come into Santos' possession after the initial order, which Santos had not disclosed. The case was heard in the Federal Court of Australia. The legal issues before the court involved the obligations of a party under a continuing discovery order and the discretionary factors that influence specific orders for further discovery, particularly in relation to documents that come into possession or power after the initial order.

The court considered the relevant Federal Court Rules, specifically Order 15 Rule 7A, which governs the making of orders for continuing discovery. The court noted that while parties have a continuing duty to disclose documents, the exercise of discretion in making specific orders for further discovery is influenced by factors such as the relevance of the documents, the time and cost involved in producing them, and the extent to which the documents were available to the other party at the time of the original order. The court found that Santos had failed to adequately justify the non-disclosure of certain documents that had come into its possession after the initial discovery order.

The court ordered Santos Limited to file and serve a list of all documents that came into its possession or power between 25 December 1992 and 30 April 1993. The court also specified that for claims of legal professional privilege, it would be sufficient for Santos to identify documents by reference to classes or categories of documents. The court reserved the right to grant further directions regarding discovery as the case progressed.

Orders

Orders of the court

The Court Orders that:

1. On or before 10 May 1993 the first respondent file and serve a

list of all documents which have come into its possession, custody

or power between 25 December 1992 and 30 April 1993, inclusive.

2. It shall be sufficient compliance in relation to claims for legal

professional privilege for the first respondent to identify documents by reference to classes or categories of documents.

3. Liberty to apply for further directions as to discovery is

reserved.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.