Trade Practices Commission v T.N.T. Management Pty Ltds
[1983] FCA 75
•18 APRIL 1983
TRADE PRACTICES COMMISSION v. T.N.T. MANAGEMENT PTY. LTD. (1983) 67 FLR 198
Practice and Procedure
COURT
FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
Franki J.(1)
CATCHWORDS
Practice and Procedure - Federal Court - Discovery - Trial date fixed - Further affidavit of documents filed - Whether documents were or had been in the possession or power of the plaintiff - Whether trial date should be vacated - High Court Rules O. 32, r. 9.
HEADNOTE
In proceedings under s. 45 of the Trade Practices Act 1974 (Cth) a hearing date, having been fixed for 17 May 1983, the plaintiff on 31 March 1983 served a further affidavit of documents of ninety-one pages enumerating an additional 10,000 documents although not admitting that it was obliged to deliver the further affidavit. The majority of the documents referred to in the further affidavit were offered for inspection and copying but privilege was claimed for some. Certain of the defendants brought a notice of motion seeking (1) to vacate the fixed hearing date (2) orders concerning a claim for privilege of certain documents.
Held: (1) The number of documents contained in the supplementary affidavit of 31 March 1983 that should have been contained in the original affidavit as documents that "are or have been in (the) possession or power" of the applicant within Order 32 r. 9 of the High Court Rules, which were the applicable rules, was limited to between five and fourteen documents. Order 32 r. 9 does not impose an obligation on a party to give discovery of documents which came into its possession after the date of swearing of its first affidavit.
Myers v. Elman (1940) AC 282; Mitchell v. Darley Main Colliery Co. (1884) 1 C & E 215 at 216, distinguished.
(2) As there were only a small number of documents which ought to have been discovered, but which had not been discovered, there was no reason to vacate the date fixed for hearing.
(3) Motion dismissed.
HEARING
1983, April 18. #DATE 18:4:1983
NOTICE OF MOTION.
In proceedings under the Trade Practices Act 1974 (Cth) the first, fifth and seventh defendants sought orders vacating the hearing date. The facts appear from the headnote and judgment.
K. Mason Q.C. and S. Robb, for the plaintiff.
P. Capelin Q.C. and L. D. S. Waddy, for the first, fifth and seventh defendants.
C. A. Sweeney, for the second defendant.
M. J. Skinner, for the third defendant.
J. Gibson, for the sixth, eighth and ninth defendants.
Solicitor for the plaintiff: B. J. O'Donovan, Commonwealth Crown Solicitor.
Solicitors for the first, third, fifth and seventh defendants: Dawson Waldron.
Solicitors for the third defendant: Freehill, Hollingdale & Page.
Solicitors for the sixth, eighth and ninth defendants: Allen, Allen & Hemsley.
T. J. G.
JUDGE1
18 April 1983
FRANKI J. I propose to give the following oral judgment because of the urgency of this matter. (at p199)
The first, fifth and seventh defendants filed a notice of motion seeking various orders which, for today, I may say, include (1) an order that the hearing date of 17 May 1983 be vacated; and (2) orders concerning a claim for privilege of certain documents. (at p199)
It was agreed by senior counsel appearing for the applicants in the motion, and senior counsel for the Trade Practices Commission, that I should deal first with the application concerning vacation of the hearing date, 17 May 1983. (at p199)
The applicants now seek orders that the hearing date be vacated and, when inspection is complete and all parties are ready, that it be listed for mention to fix a suitable hearing date. (at p199)
Counsel appeared for the second and third defendants. Both these counsel wished me to hear notices of motion which had not been served within the required time. Both motions raised other issues which could take some time to determine and which were not involved in the notice of motion by the first, fifth and seventh defendants. (at p199)
I refused to hear the motions by the second and third defendants today because they did not comply with the rules. (at p199)
I allowed counsel for these two defendants, and the solicitor who appeared for the sixth, eighth and ninth defendants, to state those defendants' attitudes on the question of vacation of the date. (at p199)
Counsel for the second defendant supported the application for the vacation of the date; counsel for the third defendant did not support the application to vacate the hearing date but suggested an adjournment of two weeks might be expected - or, at least, might be likely to be made by his client - after the case had opened, if it opened on 17 May 1983. (at p199)
The solicitor for the sixth, eighth and ninth defendants said that those defendants neither opposed nor supported the application. (at p199)
I have dealt many times with applications in this case and it is unnecessary to deal with the history of it which, up to 31 March 1983, is to be found in judgments of mine delivered on 23 October 1981, 19 November 1981 and 18 February 1983. (at p199)
The matter was last before me on 31 March 1983 when I dismissed an application from the first, fifth and seventh defendants to vacate the hearing date of 17 May 1983 on the ground that their then senior counsel was not able to appear because of the unexpected length of the matter in which he was then engaged. (at p199)
Passing now to the question of discovery: no notice for discovery in compliance with the High Court rules was ever filed by the defendants, but I agreed, in my judgment of 21 May 1982, that I would treat the position as if the commission had been served with a notice of discovery and that it had sought to comply with the obligations then falling upon a party so served. (at p199)
On 31 March 1983, Miss Wynne Patricia Hannon, who had previously sworn certain affidavits in the first part of 1981 in relation to discovery which had been the subject of proceedings before me in which I delivered judgments on 21 May 1981, 5 June 1981 and 25 June 1981, filed a further affidavit of 91 pages dealing with a number of other documents. The majority of these documents were offered for inspection and copying but privilege was claimed for some. (at p200)
The matter is still proceeding under the High Court rules - see my judgment of 8 May 1981 - and the relevant High Court rule dealing with affidavits of discovery is r. 9 of O. 32, which reads:
"A party may serve a notice in accordance with the form no. 30 in
the first schedule upon another party to a proceeding requiring him to
make discovery on oath of the documents which are or have been in his
possession or power, relating to a matter in question in the proceeding."
(at p200)
The critical words of this rule are "are or have been in his possession or power". (at p200)
In my opinion, the documents which should have been included in the affidavit of discovery of 571 pages of Miss Hannon of 27 January 1981, were those which then fell within the words of the relevant rule and, in particular, the words "are or have been". (at p200)
It was conceded by senior counsel for the Trade Practices Commission that between five and fourteen documents fell into this category. (at p200)
I have considered the cases of Myers v. Elman (1940) AC 282; and Mitchell v. Darley Main Colliery Co. (1884) 1 C & E 215 at 216 In my opinion, neither of these cases refers to documents which do not fall within words fulfilling the same function as those appearing in the High Court rule, namely, documents which "are or have been" at the time of the affidavit in the possession or power of the party swearing the affidavit. (at p200)
It is not clear to me that there was any failure on the part of the Trade Practices Commission to discover, or offer inspection of, any documents which fell within O. 32 r. 9, except for the five to fourteen documents to which I have referred. (at p200)
However, it was put by senior counsel for the Trade Practices Commission that this extensive affidavit of 31 March 1983 was filed because it was sought to save time by giving the defendants advance notice before the hearing. They were advised by letter at the same time that "the supplementary affidavit is filed and served by the plaintiff without any admissions by it that it was obliged by the rules of court so to do". (at p200)
I said at pp. 43,010-43,011 of my reneoed judgment in earlier proceedings in this case that I handed down on 21 May 1981 Brambles Holdings Ltd v. Trade Practices Commission (1981) 3 ATPR at 40-221:
"I appreciate that in a case involving discovery of the magnitude of
that involved in this case it is extremely difficult to prepare an affidavit which is beyond criticism, without that affidavit being of almost impractical length and complexity. In saying this, I do not wish it to be thought that I am suggesting that litigants can expect the Court to read affidavits of discovery with particular sympathy but in this case I think the course I propose to take is the appropriate course." (at p200)
I see no reason why any documents, other than those which should have been discovered initially, should have been discovered in April or indeed any time prior to that. (at p200)
There is evidence that the documents referred to in the supplementary affidavit number perhaps 9,000 or 10,000 pages, and an effort is being made by the applicants in this motion to photocopy every page and there have been some mechanical problems in doing this. Apparently the importance of this material has not yet been assessed by the applicants. (at p200)
So far as I can see, the number of documents which fell within O. 32 r. 9 at the time the first affidavit was sworn was no more than five to fourteen; and, indeed, if one took the view that the relevant date was 11 June 1981, the number of documents which might have been available at that time would still have been comparatively few. (at p201)
Senior counsel for the applicant stated that his clients would be prejudiced if the date was not vacated. If it was not vacated, he stated that he would not be able to prepare his case properly and an injustice would arise. (at p201)
A case of this nature always raises difficulties. The present senior counsel, as I said, replaced another senior counsel whose previous case did not finish in time. This could always happen and could happen from time to time if the present date is vacated. (at p201)
It follows from what I have said that there is only a very small number of documents which ought to have been discovered which have not been discovered. I cannot see any reason why the matter should be further adjourned and I refuse to vacate the date. I will adjourn the question of privilege to a later date. I can deal with it next Tuesday, a week from today. I have got to be in Melbourne for the rest of the week. (at p201)
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