CGU Insurance Ltd v Malaysia International Shipping Corp Berhad

REASONS FOR JUDGMENT 1 The plaintiffs have served a Notice to Produce on the defendants in relation to a Notice of Motion filed by the defendant on 27 April 2001 to rescind one of two orders made for preliminary discovery made by a Judge of the Court on 24 November 2000. The application to set aside the discovery order is contested. 2 The matter came before the Judge as a matter of urgency on 24 November 2000 and his Honour reserved liberty to apply. It is pursuant to that liberty to apply that the present application is made. There was a contest as to whether the use of liberty to apply was available to bring the present matter before the Court. 3 I have read the transcript of the proceedings before his Honour on 24 November 2000 and note that his Honour granted preliminary discovery to the defendant noting that the defendant barely had time to consider the matter and accordingly his Honour considered it appropriate that a "generous" provision of liberty to apply should be reserved to the defendant. I am satisfied that the application to rescind can properly be made under the liberty to apply granted by his Honour. In addition, I am satisfied that the Court has a discretionary power pursuant to O 35 r 7(2)(c) of the Federal Court Rules to entertain an application to vary an order after it has been entered provided the order is interlocutory. In Malouf v Malouf (1999) 167 ALR 383 the Full Federal Court decided that an order for preliminary discovery is interlocutory in character. 4 The Notice to Produce in question was filed on 10 May 2001 and is in these terms: "To the Defendant: The Plaintiffs require you to produce prior to the hearing of the Defendant's Notice of Motion the following documents for the purpose of evidence: 1. Copies of any correspondence, facsimiles, internal memoranda, receipts, circulars, diary notes, or e-mails recording or implementing steps taken by the Defendant, its servants and agents to comply with the Orders made by His Honour Justice Madgwick on 24 November 2000. 2. A copy of any correspondence, facsimiles, internal memoranda, receipts, circulars, diary notes, or e-mails recording the receipt or movement of all records falling within paragraph 2 of the Orders made on 24 November 2000, removed by servants or agents of the Defendant from the "Bunga Teratai Satu" between 2 November 2000 and 24 November 2000, including movement thereof to or from London, Kuala Lumpur, Singapore or Sydney. 3. A copy of all correspondence, facsimiles, internal memoranda, circulars, diary notes, or e-mails recording the request referred to in paragraph 11 of the affidavit of Mr Timothy Edwards Elsworth, sworn 1 May 2001. 4. A copy of all records falling within Order 2 of the Orders made by the Federal Court on 24 November 2000 in the custody, possession or control of the Defendant, its servants or agents, which are presently within Australia. 5. A copy of the e-mail passing between the Defendant and its lawyers on 2 May 2001. DATE: 9 May 2001 (Signature)…………………………….. Solicitor for the Plaintiffs" 5 The authority to issue the Notice to Produce is conferred by O 33 r 12(1) of the Federal Court Rules which enables a party to any proceedings to serve on another party notice requiring the other party to produce documents, for the purpose of evidence, which are in the possession, custody or power of the party served. The party served must, unless the Court otherwise orders, produce the documents in accordance with the notice without the need for any subpoena for production. By r 12 a Notice to Produce has the same coercive effect as a subpoena for production so that compliance is mandatory unless the Court otherwise orders: see Potts v Dennis Jones & Co Pty Ltd (1995) 58 FCR 61 at 70. 6 Both sides have referred to the reasons for judgment of the Federal Court in CCA Beverages (Adelaide) Limited v Hansford (O'Loughlin J, FCA, unreported, 15 November 1991) where his Honour decided that the provisions of O 15A of the Federal Court Rules concerning preliminary discovery should be treated as if they comprised a self-contained code so that an applicant is limited to the remedies and orders contemplated by the rules under that order. Accordingly, his Honour held that the applicant was not entitled to issue a Notice to Produce specified documents. His Honour reached this conclusion when considering a threshold question of whether the Notice to Produce procedure was available in relation to a preliminary discovery application. 7 The plaintiffs seek to distinguish this case on the ground that it concerned an application for preliminary discovery and not an application to set aside an order which had already been made. Alternatively, it submits that the decision was wrong in so far as it concluded that the effect and operation of O 15A precluded the use of the Notice to Produce procedure. 8 In the present case I am concerned with an application to rescind an order for discovery which has been made. Therefore, the circumstances are distinguishable from those in the CCA Beverages case because, of course, arguments may be raised which go to the Court's discretion in rescinding a discovery order which are not identical to those applicable in considering whether an order for preliminary discovery should be made. 9 As to paragraphs 1, 2 and 3 of the Notice to Produce I am satisfied that they may bear on the question of the rescission of the preliminary discovery order in question and therefore I will not make an order under O 33 r 12(1). Consequently, these documents must be produced as if under subpoena. 10 In relation to paragraph 4, however, I am prepared to make an order that the documents need not be produced. This is because the paragraph requires production of a substantial number of documents that would only be produced if the preliminary discovery order were not set aside and to order their production under the Notice to Produce at this point would have the effect of pre-empting the decision of the Court on the rescission question and this is clearly not appropriate. It would render academic to a substantial effect any hearing of the defendant's rescission application. 11 I say "substantially render academic" because, unlike the Notice to Produce, the preliminary discovery order in question is not limited to documents presently within Australia. Effectively, however, the paragraph calls for documents which largely pre-empt the defendant's application in the sense of making documents available to the plaintiffs on or before the hearing. Accordingly, I order that the documents referred to in paragraph 4 of the Notice to Produce of 9 May 2001 need not be produced under that Notice. 12 It is unnecessary for me to make an order in relation to paragraph 5 because the parties have agreed that the relevant document can be produced. 13 Accordingly, I order that the documents referred to in paragraph 4 of the Notice to Produce need not be produced.