General principles
91 In resolving the discovery dispute, a few general principles were obviously common ground.
92 First, a party to litigation in this Court has "no presumptive right to discovery": DSM Nutritional Products, LLC v Suntory Holdings Ltd [2013] FCA 675 at [8] per Tracey J. It is the party seeking discovery who bears the onus of satisfying the Court that the documents sought are necessary: Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 at 436 per Lindgren J.
93 Second, r 20.11 of the Federal Court Rules 2011 provides that a party must not apply for an order for discovery unless the criteria there set forth are met. That rule provides as follows:
Discovery must be for the just resolution of the proceeding
A party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.
This rule "reflects the overarching purpose referred to in s 37M(1) of the Federal Court of Australia Act 1976 (Cth)": Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396 at [21], (2011) 212 IR 313 at 319 per Collier J. Although discovery facilitates proof of facts and can avoid ambush or surprise, it can also be "extremely expensive" and the discretion to order discovery is thus to be exercised in a way that best promotes the overarching purpose of the civil practice provisions set forth in s 37M: Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 4) [2012] FCA 143 at [14] per Katzmann J. The Court controls the discovery process in part to ensure that the parties "are not crippled with the cost and delay of that process": Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 at [7] per McKerracher J.
94 Third, discovery is "not automatic or even ordered as a matter of course and even if the court is persuaded to make an order, the Court will fashion the order to suit the particular circumstances of the case": Taylor v Saloniklis [2013] FCA 679 at [7] per Besanko J. The Court will not "order discovery as a matter of course, even where the parties consent, unless it is necessary for the determination of issues in the proceedings": Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] per Mansfield J.
95 Fourth, what is now referred to as "standard discovery" is addressed in r 20.14 of the Federal Court Rules 2011. Rule 20.14(1) provides as follows:
Standard discovery
(1) If the Court orders a party to give standard discovery, the party must give discovery of documents:
(a) that are directly relevant to the issues raised by the pleadings or in the affidavits; and
(b) of which, after a reasonable search, the party is aware; and
(c) that are, or have been, in the party's control.
(2) For paragraph (1)(a), the documents must meet at least one of the following criteria:
(a) the documents are those on which the party intends to rely;
(b) the documents adversely affect the party's own case;
(c) the documents support another party's case;
(d) the documents adversely affect another party's case.
(3) For paragraph (1)(b), in making a reasonable search, a party may take into account the following:
(a) the nature and complexity of the proceeding;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document;
(d) the significance of any document likely to be found;
(e) any other relevant matter.
(4) In this rule, a reference to an affidavit is a reference to:
(a) an affidavit accompanying an originating application; and
(b) an affidavit in response to the affidavit accompanying the originating application.
The phrase used in r 20.14(1)(a), "directly relevant", assumes importance. It emphasises the considerable shift in attitude and the confined nature of the discovery which is now "standard" from that which was previously ordered, namely the discovery of documents that would lead to a train on inquiry. "Non-standard and more extensive" discovery is addressed in r 20.15. A party seeking such discovery must identify "any criteria mentioned in rules 20.14(1) and (2) that should not apply" (r 20.15(1)(a)) and "any other criteria that should apply" (r 20.15(1)(b)).
96 Fifth, r 20.21 provides for the making of an order for "particular discovery". That rule provides as follows:
Order for particular discovery
(1) If a party (the first party) claims that a document or category of documents may be or may have been in another party's control (the second party), the first party may apply to the Court for an order that the second party file an affidavit stating:
(a) whether the document or any document of that category is or has been in the second party's control; and
(b) if the document or category of documents has been but is no longer in the second party's control - when it was last in the second party's control and what became of it.
(2) The first party seeking an order under subrule (1) must identify the document or category of documents as precisely as possible.
Rule 20.21 is the counter-part provision to Order 15 r 8 as formerly found in the now-repealed Federal Court Rules 1979 (Cth). Order 15 r 8 provided as follows:
8. Order for particular discovery
Where, at any stage of the proceedings, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party:
(a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and
(b) to serve the affidavit or nay other party.
97 There are obvious differences in language between the current r 20.21 and the former O 15 r 8. But such differences of language, it has not been suggested, lead to any presently relevant difference in the principles to be applied. The former O 15 r 8, for example, was "introduced to obviate the hardship of the rule that the affidavit of discovery was conclusive": Metcash Trading Ltd v Bunn [2010] FCA 8 at [17], (2010) 263 ALR 132 at 136 per Lander J. So, too, should the present r 20.21 be applied in a manner to "obviate the hardship" of the conclusiveness formerly given to affidavits of discovery. Similarly, there is no relevant difference between the circumstances that must be satisfied before an order for "particular discovery" is now made. Formerly, O 15 r 8 required that such an order may be made where "it appear[ed] to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party…". The current r 20.21 simply provides that a party may apply to the Court for an order for "particular discovery" where the party "claims that a document or category of documents may be or may have been in another party's control…". Notwithstanding the difference in language, it may well be queried whether the Court would now make an order for "particular discovery" where the "claim" for "particular discovery" was not founded upon any "appearance" that any such further document or category of documents in fact existed. The basis for the making of the order, as was previously found within O 15 r 8, is now required to be addressed in the affidavit required to be filed pursuant to the current r 20.21(1).
98 Whatever significance may be attached to differences of language between the former O 15 r 8 and the current r 20.21 that which has remained constant is the manner in which a deficiency in discovery may be established. A deficiency may emerge (inter alia) from an analysis of the pleadings, from the documents produced on discovery, from the evidence or from the nature or circumstances of an individual case. Thus, for example, in Mulley v Manifold (1959) 103 CLR 341 at 343 Menzies J observed at 343 in the context of the comparable High Court Rules 1952 (Cth):
So far as O. 32, r. 13 is concerned, it cannot be shown by a contentious affidavit that the discovery made is insufficient. Before 1912, it was thought that the insufficiency had to appear from the pleadings, the affidavit of documents itself or the documents therein referred to. However, in British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] 1 KB 369, it was established that the insufficiency might appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable document. Furthermore, it is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive. It was in order to relax this rule to some extent that O. 32, r. 18 was introduced; this rule does permit an application for further discovery based upon the filing of an affidavit that there have been particular undiscovered documents in the possession of the other party which relate to a matter in question in the proceeding. Pursuant to this rule, the Court, however, can do no more than order an affidavit in respect of particular documents and there is no doubt that the mere existence of such documents does not provide the basis for ordering a further affidavit in general terms although, if a document discovered pursuant to such a particular order were to indicate the existence of other material documents, that would warrant an order under O. 32, r. 13...
Similarly, Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, (2005) 221 ALR 785 at 799 observed in respect to the former Federal Court Rules:
[25] Order 15, r 8 seems to embody the following process. A party dissatisfied with the completeness of discovery by another party might seek to identify either a document or a class of document as the focus for an application. That document or class of document must relate to a matter in question in the proceeding. The grounds for a belief that some document or class of documents relating to a matter in question exists can be demonstrated to the Court either from evidence adduced by the applicant for an order or from the nature or circumstances of the case (reflected in the pleadings) or from any document filed in the proceedings. The applicant must then demonstrate that such a document or class of document either may be or may have been in the possession, custody or power of a party. Once those matters are demonstrated, the Court may order such a party to file an affidavit stating whether that document or any document of that class is or has been in the possession, custody or power of the party.
See also: Bryer Merchandisers Pty Limited v Nike Australia Pty Limited [2002] FCA 880; Betts Group Pty Ltd v Paul's Retail Pty Ltd [2007] FCA 1983.
99 Neither the current r 20.21, nor the former O 15 r 8, is a substitute for general discovery but rather a rule for the discovery of a particular document or category of documents to be produced and is an application that may be made following either an order for standard or non-standard discovery: Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63, (2012) 201 FCR 321. Barker J there explained the manner of operation of this rule as follows:
[37] …It enables a party who claims that a document or category of documents may be or have been in another party's control, to apply to the Court for an order that the other party file an affidavit stating whether the document or any document of that category is or has been in the other party's control and if it has been but is no longer, when it was last in their control and what became of it. While r 20.14 and r 20.15 may generally be described as rules that provide for the giving of general discovery (whether under the directly relevant test or a court ordered broader relevance test), r 20.21 is of a different nature in that it permits a party to seek discovery of a particular document or category. This is emphasised by r 20.21(2) which requires the party seeking the order to identify the document or category of documents "as precisely as possible". The purpose of r 20.21, on its face, is not that it be a substitute for general discovery, but rather to enable a party to ask for discovery of a particular document or category of documents. Seemingly, this request may be made before or after general discovery or, in any event, without general discovery having been given…
[39] I see no reason why a party may not apply under r 20.21 following either standard or non-standard discovery, or even (exceptionally) before general discovery, to seek particular discovery of a document or category of documents that is or are said to be relevant. In such a case it will be incumbent on the party seeking particular discovery to satisfy the Court that the document should be discovered in the circumstances of the case. The document or category of documents must be relevant, directly or indirectly. Additionally, the Court would, I think, need to be satisfied that discovery of the document will facilitate the efficient conduct of the proceedings. If, for example, one can see that the documents are likely to be relied on at trial, and if not provided during the pre-trial period would likely later result in an adjournment of the trial, then it may make good sense for the Court to require particular discovery at the pre-trial stage. That said, each application will depend on its own facts and circumstances and will be affected by the underlying policy of the new Rules to limit the scope of discovery and to advance the overarching purpose of civil procedure in the Court as stated by s 37M of the FCA Act: (2012) 201 FCR 321, 328 - 329.
In Haile-Michael v Konstantinidis (No 3) [2013] FCA 53 at [12] Jessup J declined to order discovery of particular documents which only had a "rather indirect point of anchorage … in the issues relevant in the case…". His Honour nevertheless there observed that the Court was "at a disadvantage" in forming a discretionary judgment as to the potential for the documents sought to be discovered to assist the applicant's case or to damage that of the respondents: [2013] FCA 53 at [9].