The Documents
16 It is only the balance of the documents set out in the motion which are now sought. These are contained in paras 1(a) and 1(b) as follows:
1. That the Applicant give discovery of any document in its possession, custody or control (including any communication, note or memorandum of a conversation, note or memorandum of a meeting, memorandum, note, report, working paper, or any draft thereof) recording or relating to:
(a) the Respondent since 1995;
(b) the Applicant's investigations into the Infomercial Projects between 1995 and 2003.
17 It is said that the documents are required in order to prepare the respondent for addressing this Court on the merit of the underlying debt in accordance with Wren v Mahony (1972) 126 CLR 212 at 224. In other words the respondent seeks to go behind the Supreme Court summary judgment.
18 The respondent filed an affidavit sworn on 15 March 2007 in support of his opposition to the petition. He has filed further affidavits sworn by him on 6 December 2007, 21 January 2008 and 13 February 2008.
19 The applicant submits that it would be oppressive to be required to discover these documents. Ms Yen-Lin Chong, a litigator employed in the Legal Services Branch of the Australian Taxation Office deposes as follows:
63. Some of the documents in the applicant's possession, custody or control pertaining to the respondent since 1995 and the applicant's investigations into the Infomercial Project between 1995 and 2003 are contained in two six-foot high double-doored cabinets and approximately fifty lever arch files.
64. The volume of documents which fall into the categories identified by the respondent are so voluminous that:
64.1. the time required to locate, identify and inspect the documents would take weeks, if not months, as would the process of preparing a list of discovered documents; and
64.2. the process of discovery would be a very costly and time consuming exercise to the extent of being oppressive.
65. I verily believe that the time and cost of discovery in the terms sought by the respondent would grossly outweigh the benefit, if any, obtained and would only serve to further delay the determination of the applicant's petition for bankruptcy.
20 The respondent submits that the list of documents filed in these proceedings on 6 February 2008 has created areas of interest which should be the subject of further discovery. In particular he submits that:
(a) the Applicant appears to have kept running balance accounts in relation to him, this being in issue in the Full Federal Court Appeal (WAD 361 of 2006).
(b) the garnishee payment for June 2005 seems to have been paid to the Applicant but not credited in Applicant's account history for him in accordance with the method employed in relation to the other garnishee payments.
(c) there should be a record of when the Applicant became aware of PAYG withholding payments which are absent from the running balance accounts furnished to him to date.
21 Orders were made by Registrar Jan on 29 January 2008 in terms of paragraph 1(c) of the motion. This responds to the respondent's submissions set out at para 20(a) above. The matter of garnishee payments had been the subject of a prior affidavit of Nola Kathleen Rice, an officer employed within the Australian Taxation Office, sworn 28 August 2006 in response to an application by the respondent to set aside the bankruptcy notice in which at [19] she sets out the garnishee payments on behalf of the respondent received by the applicant. In his affidavit sworn 5 September 2006 in that same action the respondent [3] responds by annexing the notices of assessment but otherwise taking no issue with Ms Rice's summary of payments, including in particular that any payments made by the respondent have been omitted. The garnishee payments are further explained in the affidavit of Yen-Lin Faith Chong sworn 19 February 2008. The matter raised in written submissions set out at para 20(c) above was not explained and it is difficult to discern its relevance to any matter at issue in the Bankruptcy proceeding.
22 No submissions were made as to why all of the applicant's documents in respect to its investigations into the Infomercial Schemes between 1995 and 2003 should be discovered other than to the effect that they must be relevant to the respondent. I do not regard that as satisfactory. No attempt was made by counsel for the respondent to articulate an issue, or answer, or a possible answer to the Bankruptcy petition to which any of these documents would be relevant. I do not regard what the respondent deposed to at paras [29]-[30] in his affidavit of 23 August 2006, in relation to his Notice of Appeal in the Supreme Court, as support for the orders sought. These statements of the respondent's belief are conjectural and argumentative. They were not the subject of specific submissions by counsel.
23 Likewise, no attempt was made to justify the need for discovery of all documents in the applicant's possession, custody or control relating to the respondent since 1995.
24 At a further hearing on 10 March 2008,it was submitted by the respondent that the summary judgment figure had been overstated by $243,360.31. This is the Amended Tax Assessment figure issued on 23 November 2000 for the year ended 30 June 1995 and set out at para [17.1] of Ms Chong's affidavit sworn 29 January 2008.
25 It is common ground that this amount has already been paid.
26 The evidence of Ms Chong in her affidavit of 29 January 2008 which was before the Court at the first hearing is to the effect that the amount of $243,360.31 was not included in the summary judgment amount: [68]. That figure is not amongst those which comprise the debt of $38,032,100.01 claimed in the creditor's petition.
27 The document which the respondent relies upon in his attempt to controvert this fact is the Notice of Amended Assessment for the year ended 30 June 2005 which is at p 82 of the affidavit of Ms Chong of 29 January 2008. It contains the figure of $243,360.31. It was however paid after the Assessment was issued and before Summary Judgment was entered. I do not accept that there was any such overstatement in the Summary Judgment amount.
28 On 21 February 2008 the respondent's solicitors wrote to the applicant's solicitor enclosing a copy of a letter sent by the ATO to the respondent dated 15 November 2000 together with a number of attached schedules.
29 The respondent submits that Ms Chong's statement in her supplementary affidavit [3] that she had not previously seen the letter from the ATO to the respondent dated 15 November 2000 together with enclosed schedules justified the respondent's concerns about the adequacy of the applicant's discovery.
30 The letter concerned set out how income tax returns for the respondent and the Cumins Family Trust for the financial years 1995 and 1998 would be amended in accordance with the position papers previously sent and the attached schedules. One of the attached schedules, which was for the year ended 30 June 1998, disclosed an adjustment figure of $9,375 for "Interest re monies borrowed re: Infomercials".
31 It was not said why the fact that Ms Chong had not seen the letter and its attachments before gave cause for concern as the adequacy of the applicant's discovery. In the circumstances, it does not provide any cogent reason for ordering the further discovery sought by the respondent.
32 I am not persuaded that it is necessary to discover these documents: Federal Court Rules O 15 r 15. Further it would, in my opinion, be oppressive in the circumstances identified in the affidavit of Ms Chong sworn on 29 January 2008 to order discovery as sought in paragraphs 1(a) and (b) of the motion.
33 The motion will be dismissed with costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.