consideration
16 The motion should be dismissed with costs because, in seeking discovery of the ACCC's complete investigation file, AMI is not seeking discovery of a 'category' or 'categories' of documents as allowed for by the orders of 1 September 2004. The expression 'complete investigation file' is a description of the physical or administrative repository of all the documents of the ACCC, not of a 'category of documents' within the orders. The point can be made by asking rhetorically, 'What documents are omitted from discovery by the expression '[t]he ACCC's complete investigation file''? The answer must be 'None!'.
17 The present régime governing discovery in the Court results from the Federal Court Amendment Rules 1999 (No 6) (SR 1999 No 295), r 3, Schedule 1, items [2] and [3], which commenced to operate on 3 December 1999, and Practice Note No 14 (Discovery) issued on the same date. The rule amendments and the Practice Note mark one court's attempt to reduce the time-consuming and costly burden of the process of discovery, which has long troubled courts, litigants and legal practitioners.
18 One difficulty associated with the discovery process is that of appropriately (not too widely or too narrowly) identifying and describing the appropriate connection with, or relationship to, the issues in a proceeding which documents must have in order to be discoverable. Another relates to the degree of individuation, specificity and detail, with which those documents which are decided to be discoverable must be described in the list of documents.
19 Prior to the changes made in 1999, O 15 r 1 provided for discovery pursuant to a notice for discovery. sSince the notice was able to be given only after a directions hearing and within any period limited by the Court for the purpose, and the Court was given a general power to order otherwise, in practice a notice for discovery could be given only if the Court allowed it to be given.. Order 15 r 2(2) provided that, subject to O 15 r 3, a party giving discovery was to give discovery of all documents 'relating to any matter in question between [the party giving discovery] and the party giving the notice for discovery'. The expression 'relating to any matter in question' in this formulation was treated as invoking 'the Peruvian Guano test' (cf The Compagnie Financičre et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55): see for example, the Full Court judgments in Wellcome Foundation Ltd v VR Laboratories (Australia) Pty Ltd (1980) 42 FLR 266 at 289; Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 23-24. In Peruvian Guano, Baggallay LJ referred (at 60) to documents of which 'it is not unreasonable to suppose that they … may contain information, directly or indirectly, enabling the defendants to advance their own case or to damage the case of their adversaries' (my emphasis), and Brett LJ referred (at 63) to any document 'which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring [discovery] either to advance his own case or to damage the case of his adversary' (emphasis in original). The required relationship was described similarly by Menzies J in Mulley v Manifold (1959) 103 CLR 341 at 345: '[o]nly a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train on inquiry which would, either advance a party's own case or damage that of his adversary' (my emphasis). (Order 15 r 8 has continued since 3 December 1999 to use the expression 'relating to any matter in question', and, therefore, to invoke the Peruvian Guano test: see Spyer v Cuddles'N'Mum Franchise Pty Ltd (No 3) [2002] FCA 1563 at [6]).
20 Subrule 3(1) of O 15 was not amended in 1999. It provided, and still provides, that:
'The Court may, before or after the party has been required under rule 1 to give discovery, order that discovery under rule 2 by any party shall not be required or shall be limited to such documents or classes of documents or to such of the matters in question in the proceeding, as may be specified in the order.'
21 Under the current régime, against the background of which the orders of 1 September 2004 are to be understood:
- it is expressly provided in O 15 r 1 that a notice for discovery may be given only with the leave of the Court;
- ;lleave to give a notice requiring general discovery is not granted as a matter of course, even when a consent direction to that effect is submitted (Practice Note No 14, para 1(a));
- the Court moulds any order for discovery to suit the facts of a particular case (Practice Note No 14, para 1(b)); and
· 'To prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the documents required to be disclosed by Order 15 rule 2(3).' (Practice Note No 14, para 3)
22 Discovery may be given in response to a notice for discovery served with the leave of Court, or in direct obedience to an order of the Court without the necessity of a notice being given. The orders of 1 September 2004 reflected the latter course, and contemplated that there would be no dispute over the categories. Where there is no dispute, it is the Court's order of the kind made here, coupled with the undisputed descriptions of the categories, that define the discovery régime and obligations in the particular proceeding, rather than O 15 r 2(3). It is open to the parties, when describing categories, to incorporate reference to the criteria listed in that subrule, which provides:
'(3) Without limiting rule 3 ..., the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given:
(a) documents on which the party relies; and
(b) documents that adversely affect the party's own case; and
(c) documents that adversely affect another party's case; and
(d) documents that support another party's case.'
23 In the rare case in which the Court grants leave to a party to give a notice requiring general discovery, that subrule operates, rather than, as formerly, the Peruvian Guano test, to identify the discoverable documents. The Explanatory Memorandum which accompanied the Federal Court Amendment Rules 1999 (No 6) (SR 1999 No 295) stated of the new subrule 2(3) that '[t]he aim of the rule is to limit the documents that must be discovered to those which are directly relevant to the proceedings'.
24 The description, '[t]he ACCC's complete investigation file', did not incorporate any confining limitation. Rather than seek a category or categories, AMI has, in substance, sought general discovery without the confining effect of either the Peruvian Guano test or the criteria of discoverability now provided in O 15 r 2(3). The limitations expressed in O 15 r 2(3), in addition to operating of their own force where a party, with leave, gives a notice for discovery, are available to be invoked if the Court makes an order providing directly for the giving of discovery, whether or not the order is made by consent.
25 Where, as commonly happens (and happened here), orders are made which contemplate the parties' reaching agreement upon categories of documents, one might reasonably expect their starting point in formulating the categories to be some consideration of the issues to be determined in the proceeding, or, to adapt the language of the former O 15 r 2(2), the 'matters in question' in the proceeding. Under any criterion for discovery, there can be no justification for requiring discovery of documents that bear no relationship to those issues. Of course, the description '[t]he ACCC's complete investigation file' does not suggest that any attention was given to the issues, and may encompass documents having no connection with them.
26 It may be that the due outworking of the discovery process will in fact result in discovery of almost the entire investigation file of the ACCC, but speculation that this may happen is not to be substituted for an insistence on principle in the discovery process.
27 On the hearing of the motion, there was some discussion of formulas other than '[t]he ACCC's complete investigation file', according to which AMI would be entitled to discovery, but this matter is appropriately left to another occasion.