Village Building Co Limited v Airservices Australia (No 2)

Village Building Co Limited, the appellant, brought a proceeding against Airservices Australia, the second respondent. The matter arose from an article published in the Canberra Times, which the second respondent contends has led it to believe that the appellant has resiled from an undertaking it had given, resulting in a finding of contempt. The court was tasked with determining whether the publication of the article constituted a breach of the appellant's undertaking and, if so, whether this amounted to contempt of court. Additionally, the court had to consider whether the second respondent's motion for discovery was valid under the 'preliminary discovery' provisions of the Federal Court Rules.

The court examined the terms of the undertaking given by the appellant and found that there was no dispute that the Canberra Times had published an article in the terms suggested by Mr Topfer. However, the court also noted that contempt would not be found unless the terms of the undertaking were clear and unambiguous. The court further considered the second respondent's motion for discovery and determined that it was made under the 'preliminary discovery' provisions of the Federal Court Rules. The court acknowledged that there was reasonable cause to believe that the applicant had the right to obtain relief in the Court and that there was reasonable cause to believe that the respondent had or is likely to have or had or is likely to have had possession of any document relating to the question whether the applicant had the right to obtain the relief. However, the court found that the use of the phrase 'prospective respondent' in O15A Rule 6 of the Federal Court Rules suggests that discovery under this rule can only be obtained prior to the institution of substantive proceedings.

The court dismissed the second respondent's application for discovery and referred the matter to a mediator in accordance with Order 72 of the Federal Court Rules. The parties were required to inform the Associate on or before 5pm on 29 August 2008 or such further date as the Court may allow as to whether an agreement had been reached on the identity of the mediator. If the parties failed to comply with this order, the matter would be referred to the District Registrar for nomination of a Mediation Registrar pursuant to Order 72 of the Federal Court Rules. The costs of the application for discovery were reserved.