Finnegan v Washington

1. The applicant's interlocutory application dated 1 September 2020 is adjourned for mention on a date to be fixed after the termination of the mediation of the matter, whether due to settlement of the dispute or otherwise.
2. Costs reserved.
3. Liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 This is an application brought by the applicant, Mr Finnegan, for orders for non-standard discovery and leave to administer interrogatories. It is made in an interlocutory application that was filed on 1 September 2020, which also sought, at the same time, an order that the respondents give standard discovery pursuant to r 20.13 and r 20.14 of the Federal Court Rules 2011 (Cth). 2 At the first return of the interlocutory application, all three respondents indicated that they accepted that they should give standard discovery. Directions were made for conferral about a minute of consent orders in that regard. No minute was provided within the time contemplated by the directions. However, yesterday the court received a minute of consent orders providing for standard discovery and, in accordance with that minute, orders for standard discovery under r 20.13 and r 20.14 were made yesterday. 3 As a result, the issues that remain as raised by the interlocutory application are whether non-standard discovery should be given pursuant to r 20.15 and whether an order giving leave to administer interrogatories should be made pursuant to r 21.01. Mr Finnegan has supported his interlocutory application with an affidavit that he swore on 14 September 2020. This attaches a list of proposed categories of documents which would be the subject of the order for non-standard discovery, and a list of the proposed interrogatories. Both lists are quite extensive. The list of categories of documents is broken up into 18 categories, many of which effectively contain subcategories. The proposed interrogatories are 40 in number, many of those, once again, contain what effectively are sub-questions. 4 The respondents oppose the application in respect of non-standard discovery and interrogatories on various bases, including that the categories and/or questions are wide and, in the submission of at least some of the respondents, oppressive, and go beyond what is relevant or necessary for the disposition of the issues in dispute in the proceeding. 5 However, the respondents also oppose the orders sought on the basis that they are premature. In my view, the respondents are correct to say so, especially since standard discovery has now been ordered. It was a fundamental premise of Mr Finnegan's application for non-standard discovery that the non-standard discovery which he sought was no more extensive, indeed less extensive, than standard discovery. In particular, Mr Finnegan expressly disavowed any application to the court for the requirements of the criteria mentioned in r 20.14(1) and (2), not to apply. Those are the criteria that apply in cases of standard discovery, which require a party to 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. Direct relevance is defined more particularly in r 20.14(2). 6 In other words, the application for non-standard discovery under r 20.15 is not an application for more extensive discovery, at least according to Mr Finnegan, but is an application for discovery to be given by categories that he says are within and subject to the boundaries of relevance and other criteria that are to be observed in complying with the order that has already been made for standard discovery. 7 If that is so (I note, in passing, that the third respondent did not accept that the order sought under r 20.15 was less extensive than standard discovery) then, subject to a point Mr Finnegan raised which I will return to shortly, it must be the case that if the respondents comply with the order that has already been made for standard discovery, then the documents they will discover in compliance with that order will be at least as extensive as documents falling within the categories sought in relation to the order for non-standard discovery. In other words, if the categories in question go no further than to describe classes of documents that are directly relevant to the issues raised by the pleadings, then it follows that proper compliance with the order for standard discovery that has already been made will include discovery of those documents. 8 The point Mr Finnegan raised to which I said I would return is that he has relied upon authorities that explain that it can be beneficial to provide discovery by way of category so as to minimise the scope for dispute about what the issues are, as defined by the pleadings, and what sorts of documents may be relevant to those issues. I accept that that is a view that is widely held and reflects what has become an increasingly common practice to order discovery by categories. However, whether discovery ordered by categories will indeed lead to greater efficiency and less disputation depends, in my view, on the particular nature of the proceedings in question and the particular circumstances which the parties to the proceeding face. As Mr Finnegan acknowledged in his submissions, the orders for discovery by category are frequently made in matters where the scope of the issues is wide and, therefore, the scope of disputation is increased. 9 I do not consider that this case is a case of that kind. It is true that it seems from the nature of some of the proposed categories and interrogatories that there may be issues that have caused disputes between the parties that are wider ranging than questions as to whether the alleged defamatory statements were made and their immediate consequences. But on the pleadings as they currently stand, it does not appear to me that the scope of the issues is so wide as to require documents to be discovered by category. 10 Also, and with respect to those who have a different view, in my experience, defining documents by prescriptive categories can sometimes be more productive of dispute between the parties than the straightforward approach of simply giving discovery of all documents that are relevant to the issues in the proceeding as defined by the pleadings. Sometimes the dispute can become a dispute about the proper construction of and scope of the categories, and inefficiency and expense can result. 11 I have formed no view on whether that would be the consequence of ordering discovery of the particular categories that Mr Finnegan has sought here, because I return to the fundamental point that if the documents in those categories are indeed relevant, then they should be produced pursuant to the order for standard discovery. It may be, as well, that the potential inefficiency and scope for dispute to which Mr Finnegan referred in his submissions has been minimised, at least to some extent, by the manner in which Mr Finnegan has signalled what is relevant in his view, by making his application for non-standard discovery. The respondents have had an opportunity to consider and put their views on that, at least in a preliminary way, in their response to his application. 12 Mr Finnegan submitted that the court has power to order standard discovery and non-standard or more extensive discovery at the same time. I accept that is so as a matter of power, but as a matter of discretion I would not make any order for non-standard discovery at present. In my view, the appropriate way to proceed is for the respondents to give standard discovery and if it appears to Mr Finnegan after that has been given that some documents or class of documents has not been discovered, being documents which a specific respondent or respondents may be expected to have and which are relevant, he may raise that issue then and in a way that is likely to be more specific and more targeted than his current application for non-standard discovery. 13 There is another important reason why as a matter of discretion I would not order non-standard discovery now. That is that this matter has been referred to a registrar of this court for the conduct of a mediation. The mediation can be expected to take place within the next few months, and while the parties have been in agreement that the respondents should proceed to give standard discovery in the meantime, in my view it would be inefficient, and potentially undermine some of the benefits of the mediation process, for the respondents to be required also to give non-standard discovery before it is apparent whether the mediation will be successful in either resolving or limiting the issues in dispute. 14 The reasons I have given in relation to why I am not going to order non-standard discovery now apply with at least equal force to the question of whether interrogatories should be administered now. Mr Finnegan disputed the idea, which appeared in the submission that was made on behalf of some of the respondents, that leave to administer interrogatories is rarely given in contemporary Australian litigation, and he relied on four cases that he said were examples of cases where leave to administer interrogatories was given. 15 However, on the experience of the court in contemporary case management, leave to administer interrogatories is not often sought and is less often granted. That also appears from the wording of r 21.02, which requires that: [a] party must not make an application [for leave to administer interrogatories] under rule 21.01 until 14 days after the pleadings have closed and, if an order [for discovery] has been made … the parties have served any lists of documents, and from paragraph 6.2 of the court's practice note on defamation. 16 That, of course, says nothing about the merits of any particular case and does not preclude a party, who establishes that interrogatories in the form that party seeks are necessary for the efficient disposition of the issues in dispute, from making that application and from being granted leave to administer interrogatories. But it would be exceptional for a court to give leave to administer interrogatories, particularly interrogatories which are as extensive as I have indicated, before discovery has been given. For that reason, and also for the reasons that I gave in relation to non-standard discovery, I do not intend to grant leave to Mr Finnegan to administer interrogatories now. 17 In light of the views I have just expressed, the issues that remain are whether or not the interlocutory application should be dismissed in its entirety now or whether it should be adjourned until at least after the conclusion of the mediation conference, and what should be done about the costs of the application. I heard submissions from the parties about those subjects. 18 The first respondent and the third respondent move for dismissal of the interlocutory application now and for the costs order which would ordinarily follow from that dismissal. One matter on which both of those respondents relied was what they said was an absence of conferral from Mr Finnegan before he made his application. Mr Finnegan accepted that there had been no conferral, at least in relation to the orders for non-standard discovery and administering interrogatories, but said that he, as a self-represented litigant, is entitled to proceed on the basis that conferral is a 'two-way process' and the prospect of conferral had not been raised by the respondents either. 19 But the reality is that this is Mr Finnegan's application. He is the one who had in mind proposing categories of discovery and categories of interrogatories before the application was made. He should have raised those categories informally with the respondents so that conferral could be had on them and, if possible, agreement reached or at least the scope of dispute about those categories could be narrowed. 20 It is imperative to efficient conduct of civil litigation that the parties confer about such things at every reasonable opportunity. And self-represented or not, every party has an obligation to comply with the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth) s 37M. The parties have an obligation under s 37M of the Federal Court Act to act consistently with that overarching purpose. And, in my view, in order to comply with that obligation it would be necessary for a party proposing categories of discovery and interrogatories of the sort that Mr Finnegan has proposed, to raise those with the other parties, and seek to confer before any application is made. 21 All of that said, none of the reasons I have given for not making the orders sought today touch on the merits of the categories and interrogatories sought. The basis of my decision is that it is not efficient for any resolution in relation to those merits to take place before the respondents have an opportunity to give standard discovery and before the mediation. There will be no gain in efficiency in dismissing the application now and requiring Mr Finnegan to file another application with an associated filing fee if the respondents do not comply with their obligations to give standard discovery. 22 In my view, the efficient course is to adjourn the application until after the mediation conference. By that time, standard discovery will have been given. And if the mediation conference does not resolve the dispute as a whole, there will no doubt be scope to narrow or potentially eliminate what Mr Finnegan sees as the need for discovery of specific categories or the administering of interrogatories. Consistently with that, I consider that the appropriate order to make as to costs today is that the costs be reserved. 23 To be clear, those orders do not indicate approval of Mr Finnegan's lack of conferral before he made his application. Reserving the costs does not indicate that the court will not ultimately make an order that, at least to some extent, includes an order for costs against Mr Finnegan. However, in my view, the appropriate order for costs should be considered in light of all the circumstances as they are known when the dispute, if any, that remains about discovery categories and/or interrogatories is resolved, after the respondents give standard discovery and after mediation. The court has a wide discretion as to costs, and appropriate costs orders can be fashioned in light of the resolution of any ensuing dispute about discovery or interrogatories as a whole. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.