Global Intertrade Pty Ltd v Adelaide Festival Centre Trust

"The obligation resting on a party obliged to give discovery requires that he make proper enquiries and efforts to identify and disclose all relevant documents that are not in his possession. The obligation extends to making inquiries from the person in whose possession the documents now are. …"

8 The AFCT's enquiries should have been directed to identifying precisely what documents the subject of the discovery order had been, but are no longer, in its possession, custody or power.

9 I have carefully considered the terms of Mr Bishop's affidavit. After deposing to the fact that there are "no documents to discover" he refers to the enquiries that he has conducted and the searches he has caused to be made for documents the subject of the order. One source of his enquiries was a Mr Tony Reagan ("Mr Reagan") a former employee of the AFCT and apparently a person closely involved in the relevant transaction. He was transferred to Melbourne, and took a number of documents relating to the Madame Tussaud's exhibition to Melbourne at that time. It is unclear whether he then transferred to other employment, or remained for a time in the employment of the AFCT. The affidavit deposes that Mr Reagan:

"… claims that any correspondence with the proposed applicant or anything which may be relevant to the order was left in his office in Adelaide."

10 Searches have not disclosed any such material in his former office, either physical material or information stored on his computer. 11 In my judgment, the affidavit of Mr Bishop does not establish that all due enquiries have been made by him for the purposes of complying with the obligation to provide discovery in accordance with the order of 17 December 1998, and consequently it does not indicate in an appropriate way that the AFCT did or did not have at some point in time documents of the type identified in that order. He may have made those enquiries. It may be the case that, as counsel for the AFCT urges, that there are no documents now able to be identified by the AFCT which it had at the time it provided the Information Memorandum touching on the matters the subject of the order, but which it no longer has. It may be that Mr Bishop made all appropriate enquiries, including questioning Mr Reagan explicitly about what documents (if any) were referred to by him or others within the AFCT for the purposes of checking or testing the matters asserted in the Information Memorandum to which the order refers, and that Mr Reagan reassured him that there were no such documents. In that event he should depose to the fact that, so far as his enquiries have been able to identify, there were no documents available to the AFCT at material times. It may be, on the other hand, that Mr Reagan said there were some such documents but was unable to describe them in any detail. It may be that Mr Reagan said no more than the affidavit refers to, and was not asked, or was not pressed, to focus on the existence or description of the particular documents to which the order is directed, so his response was somewhat less than fully informative. The conversation with Mr Reagan referred to in the affidavit does not positively assert that Mr Reagan said there were no such documents, but leaves open the question of whether there were such documents. To that extent, I think there is some ambiguity in the affidavit. It should be clarified by a further affidavit of Mr Bishop. If, to comply with the obligation to give discovery properly in accordance with the order, that involves him undertaking further enquiries with Mr Reagan, he must do so. He may not need to do so. His affidavit may simply be incomplete as to what he learned from Mr Reagan. 12 At the relevant time, Mr Reagan was described as Executive Producer - AFC Productions. He was apparently the principal officer involved in the transaction. He would know whether there are or are not any documents of the description to which the order relates. If there are none, he should be able to indicate that unambiguously. If there are some, he should be able to describe them, at least to some extent, and to assist as to their whereabouts. Once he has described them, and given the best information he can as to their whereabouts, any leads should then be followed up by Mr Bishop. If he adheres to the assertion that the documents remained in the custody of the AFCT, and the places where they might have been are searched and such documents are not found, then that should be made plain. If they might be with some other person, then the circumstances in which they came to leave the possession, custody and control of the AFCT should be made explicit. It may also be that Mr Reagan will indicate that some other officer under his direction or elsewhere within the AFCT would know as to the existence of such documents. All those things may have been dealt with by Mr Bishop, conscientiously endeavouring to comply with the order. The difficulty is that I do not know. 13 In correspondence between solicitors for Global and the AFCT following receipt of Mr Bishop's affidavit, solicitors for the AFCT assert:

"Our client does not know, and therefore is unable to say, what documents falling within the category of documents set out in the order … it may have had in its possession, custody or power."

Although Global was prepared to accept that assurance, it does not indicate that Mr Bishop made the enquiries which, in my view, he ought to have made of Mr Reagan. If that is simply because of the ambiguity in his affidavit, so be it. However, if the concerns of Global could have been addressed without further inquiry by Mr Bishop, it would have been quite straightforward for Mr Bishop to have provided a supplementary affidavit, or for information by correspondence indicating the nature of the enquiries which he had made of Mr Reagan to have been provided. I do not consider that that correspondence therefore advances the AFCT position. 14 Global is also critical that the other enquiries made by Mr Bishop are inadequate. In particular, it is submitted that there is no description of the AFCT's management, procedure and practice regarding the creation, storage and recording of documents. It is said there is no attempt to describe who were the relevant managers and employees at the time of the transaction. There is no evidence that the trustees of the AFCT, some of whom were trustees at the time, have been asked as to whether there were any such documents. There is no evidence that other relevant agents have been required to search for discoverable documents. It is also complained that Mr Bishop has not himself sought to inspect the documents held by third parties now and which might touch on matters in issue the subject of the order. 15 I am not satisfied that on the other respects asserted the enquiries made by Mr Bishop lack diligence on his part or that there is more which he ought to have done. The problem is that his affidavit does not show that he pursued full inquiries through Mr Reagan. I have assumed that Mr Reagan was the immediate and obvious point of contact for the AFCT to pursue those matters. Mr Bishop has also spoken to Mr Ken Wilby, to Mr Wayne Gadd and possibly also Ms Allie McCann, all former employees of the AFCT. He appears to have carefully considered, and formed a responsible judgment on, the appropriate avenues of inquiry to fulfil the AFCT's obligations in complying with the order. He will no doubt reconsider that question in the light of these reasons. I am not prepared to conclude that he did not consider the other avenues of inquiry suggested by Global, but I assume he regarded such inquiries as pointless. Consequently, whilst it is apparent that he has not made enquiries of "other employees" or of certain of the trustees, I assume that that is because, as a result of his enquiries, he regarded such persons as being unable to provide information. That is consistent with his affidavit that he is unaware of anyone else who may be able to assist him with his enquiries or of any further place where searches could usefully be conducted. I accept that evidence. 16 I am also not persuaded that Mr Bishop was an inappropriate person on behalf of the AFCT to conduct the enquiries and to give discovery. His affidavit satisfies me that there is currently no employee of the AFCT with direct and immediate knowledge of the matters to which the order relates. In his capacity as Director of Corporate Services, he is not shown to be an inappropriate person to conduct the enquiries, and there is nothing to suggest that he lacked the authority to make enquiries necessary for the purposes of complying with the order. 17 I direct that a further affidavit of discovery be filed and served by AFCT in accordance with the form prescribed by O 15 r 6 of the Rules within twenty-eight days. 18 I made that order on 25 February 1999, and these reasons are published on 26 February 1999. I direct that the time within which any application for leave to appeal or any appeal from these reasons may be brought shall run from 26 February 1999. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate: Dated: 26 February 1999 Counsel for the Proposed Applicant: Mr R Ross-Smith

Solicitors for the Proposed Applicant: Scales & Partners

Counsel for the Proposed Respondent: Dr R Baxter

Solicitors for the Proposed Respondent: Johnson Winter & Slattery

Date of Hearing: 22 February 1999

Date of Decision: 25 February 1999

Date of Reasons: 26 February 1999