Global Intertrade Pty Ltd v Adelaide Festival Centre Trust

Federal Court of Australia|1999-02-26|Before: Mansfield J

1 On 17 December 1998, I made orders under O 15A r 6 of the Federal Court Rules ("the Rules") for pre action discovery of particular categories of documents.

2 Order 15A r 6 does not itself specify the manner in which discovery so ordered is to be given. Given its juxtaposition to O 15 dealing generally with discovery, I see no reason why the obligations as to the means of seeking out discoverable documents in accordance with that order, and as to the means by which discovery is to be given, should not be those prescribed generally by O 15. Order 15 r 2(2) provides that discovery should be given by filing and serving a list of documents in accordance with r 6, and an affidavit verifying the list. Order 15 r 6 requires the list of documents to be in a certain form (Form 22) and to distinguish between those documents which are in the possession, custody or power of the party making the list from those that have been but are no longer in its possession, custody or power. In the case of documents no longer in its possession, custody or power, the party making the list is then required to state when it parted with the document and what has become of it. Order 15 r 9 provides that the affidavit verifying a list of documents, when the party giving discovery is a corporation, shall be made by a member or officer of the corporation, and obliges the corporation to choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts. 3 On 21 January 1999, the proposed respondent ("AFCT"), in what it regarded as compliance with the order of 17 December 1998, filed and served an affidavit of Geoffrey William Bishop ("Mr Bishop"). It was not in the form prescribed by the Rules. He deposed to the fact that the AFCT "has no documents to discover" pursuant to the order, and went on to describe the searches which he had caused to be made for such documents, and of his conversations with former employees of the AFCT and of other persons associated with the Madame Tussaud's exhibition who may have received documents from the AFCT touching on the matters to which the order relates. 4 The proposed applicant ("Global") complains that the AFCT has not complied with the order of 17 December 1998, and seeks orders directing that it do so. The AFCT asserts that, in substance, it has complied with that order. Global does not make its complaint as a matter of form, but as a matter of substance. In other words, its concern is not that Form 22 was not used, but that Mr Bishop's affidavit does not clearly identify the AFCT's position on the matters which O 15 r 6 requires it to address, and alternatively that if it did so then Mr Bishop's affidavit does not indicate that appropriate enquiries were pursued. 5 In particular, Global's complaints are:- 1. Mr Bishop's affidavit does not describe the documents the subject of the order which were but are no longer in the possession, custody or power of the AFCT, or what has become of them; 2. Mr Bishop's affidavit does not disclose that adequate or sufficient enquiries to locate such documents or to be able to describe such documents have been carried out; and 3. Mr Bishop does not have any relevant knowledge of such material documents or what has become of them, and is not the proper person to make the affidavit on behalf of the AFCT. 6 Global is understandably concerned that, at some later point, the AFCT may confront it with documents which it did have for the purposes of publishing the Information Memorandum referred to in the order of 17 December 1998 on the particular topics referred to in the order of 17 December 1998. It may then effectively be in a position to respond to the operation of s 51A of the Trade Practices Act 1974 (Cth) and s 54 of the Fair Trading Act 1987 (SA). 7 By reason of the order of 17 December 1998, Global is entitled to be told by the AFCT which documents it has had, but no longer has, in respect of the matters to which the order relates, and if there are any such documents, what has become of them. To provide that information, the AFCT was obliged to make enquiries. As von Doussa J said in Re McGorm; ex parte Co-operative Building Society of South Australia (1989) 20 FCR 387 at 389:

"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

Trade Practices Act 1974(Cth)s 51A

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