(n) Paragraph 55.6 (c) and (d).
25 To my mind the absence of an express pleading to the effect that the AUSMAQ System is an E-commerce system is far from fatal to the plaintiffs' present application for the extended discovery. The primary question is and remains whether the subject discovery seeks production of documents relevant to facts in issue.
26 To my mind, the plaintiffs' submissions outlined in paragraphs 16, 17, 18 and 19 are of substance. I am satisfied from the argument and the pleadings that the documents sought 'could or contain material which could, rationally affect the assessment of the probability of facts [in issue]'. It is reasonable to suppose that documents relating to E-commerce sought to be the subject of the more extended discovery, contain information which may, not which must, either directly or indirectly enable the plaintiffs to advance their cases or to damage the case of the defendants. It is reasonable to suppose that the documents sought relate to the substance of the dispute thrown up by material allegations pleaded.
27 I do not accept the submission that the plaintiffs are shown to be attempting to here embark on a fishing expedition. A clear attempt has been made in paragraph 4.1.3 of Schedule B to the further amended motion to limit the meaning of high level documents to documents prepared for the purposes of proposal, summary, submissions or report to the identified categories of persons. I accept that this represents an attempt to cut down dramatically the width of the wording which appeared in Schedule A being the only schedule to the motion in its form as originally filed.
28 The question requires to be approached using common sense, applying a sense of perspective and by finding a workable and practicable solution.
29 Plainly enough the defendants are obliged to discover documents only if it is reasonable to suppose that the documents contain information which may, not which must, either directly or indirectly enable the plaintiffs to advance their own case or to damage the defendants' case. Only high level documents going to the defendants' strategic examination of the importance of E-commerce to the defendants and to the defendants' strategic plans which could or may, on an expansive approach to the definition of 'AUSMAQ Service' and to the words 'service with the equivalent or similar functionality' [to the AUSMAQ Service] advance the plaintiffs' case or damage the defendants' case, require to be discovered.
30 I do not see it as appropriate to have a definition of 'E-commerce' in the order for discovery. That the term may be capable of referring to any electronic means of providing transactional and financial banking services or indeed of conducting commerce is not to the point. What is to the point is that the proceedings throw up for determination, assertions by the plaintiffs and a denial by the defendants:
(a) As to the ambit of the subject definition of 'equivalent or similar functionality' [to the AUSMAQ Service];
(b) As to whether the defendants, and in particular the Bank, has developed services falling within that definition;
(c) As to the recognition by the defendants and in particular by the Bank of the significance of E-commerce banking generally in terms of the direction of future banking.
31 I do not regard the presently agreed categories of documents [see in particular paragraphs B.C.1, E.1 and E.3 on pages 78, 81 and 82 of Exhibit A2] as sufficient to satisfy the plaintiffs' entitlement.
32 A careful examination of those closely defined categories reveals that they do not cover the expanded description of documents now pursued.
33 Category B.C.1 treats with documents relating to the functionality of 'the NAB Services' or to the functionality of the AUSMAQ Service, including:
- the functional specifications of the NAB Services and the AUSMAQ Service;
- any comparison of the functionality of the NAB Services and the AUSMAQ Service;
- documents recording, referring to or relating to the benefits and advantages including future benefits and advantages of acquiring the AUSMAQ Service and the AUSMAQ IP rights.
34 Category E.1 is squarely aimed at documents recording, referring to or relating to the AUSMAQ or EUROMAQ Services on the three defined parameters (see sub-paragraphs (a), (b) and (c).
35 Category E3 is again squarely aimed at documents recording, referring to or relating to :
- analyses and evaluations of benefits and the like of the AUSMAQ or EUROMAQ Services;
- proposals, offers and the like by persons interested in purchasing the AUSMAQ or EUROMAQ Services, and internal considerations by corporate defendants of such proposals and offers;
- profits (potential, possible or future) or applications of the four NAB Services;
- analyses or evaluations or consideration why the defendants should or should not make the AUSMAQ Service or the EUROMAQ Service available to any person, whether in Australia or overseas.
36 As Rolfe JA said, albeit in a slightly different context:
'In determining the question of relevance the Court must bear in mind that the parties are entitled to build up an evidentiary mosaic. Generally that cannot be done in complicated commercial litigation by the tender of one piece of evidence or the assertion that only limited material is relevant to the issues involved. . . . the Court should not be astute to find irrelevance at an early stage of the proceedings . . .
[ Lakatoi Universal Pty Ltd & Ors v Walker & Ors, Unreported, Supreme Court of New South Wales, 31 July 1998 at 18]
37 I am further satisfied that the proposed expanded discovery categories are such as are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case'. [Cf, (again dealing in a slightly different field of discourse,) the judgment of Waddell J in Spencer Motors Pty Ltd v LMC Industries Ltd [1982] 2 NSWLR 921 at 297, seeking to summarize views expressed by Moffitt P in National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 383, 384]. I particularly have in mind the wording extracted in paragraph 23(l) of the Judgment which makes it clear that the plaintiffs seek to make a case to the effect that the defendants are seeking to fundamentally shift the Bank's operating model from a traditional branch based regional retail bank to 'the paradigm of a highly customer focussed information driven globally integrated financial services operation [using technology including the internet, personal digital assistants and modern communication devices . . . and E-commerce generally]. These are broad concepts indeed and involve, as the case sought to be made, an examination of an alleged radical move from one type of operation to another.
38 To my mind there is however substance in Mr Insall's submission that it may be oppressive to include the words 'for the purposes of proposal, summary, submission or report in the definition of 'high level documents'. Those words require a degree of interrogation of those who prepared the documents which may be oppressive in terms of what may be reasonably required by the plaintiffs.
39 In the course of the argument which took place on 25 October 1999, the defendants by leave read an affidavit of Mr Gregory D. J. Richards made on 22 October 1999 which provides details of the individual defendants, of the boards of directors of the corporate defendants and of the persons, committees and sub-committees reporting to individual defendants or to the boards of the corporate defendants. The affidavit descends into considerable detail in terms of the documents believed to have been generated in connection with NAB board meetings, NMG and AUSMAQ board meetings and meetings of the board of directors of National Australia Financial Management Limited. In like fashion the affidavit descends to considerable detail in relation to the reporting by individuals and entities within the defendants over particular periods of time. The affidavit also provides evidence that there is no one part of the National Australia Bank that deals exclusively with E-commerce issues and that a substantial volume of documentation has been sent to the Board of the Bank or persons supporting the Board of the Bank on the subject of E-commerce for the provision of financial services. The affidavit deals with the volume of documents said to be relevant to the subject 'E-commerce for the provision of financial services'. Mr Richards deposes that he is of the opinion, on the basis of his instructions, that:
· There is no one source within the Bank from which documents falling within the terms of paragraphs 4.1.1 and 4.1.2 of Schedule B to the motion would originate.
· There is no one place within the Bank where copies of such documents would be filed.
· It would take a very substantial amount of time to carry out the enquiries necessary to identify such documents.
40 Mr Richards also deposes that it is impossible at this stage to estimate the work required to be performed to provide discovery in the terms required by paragraphs 4.1.1 and 4.1.2 of Schedule B. He deposes that further substantial enquiries would need to be made in this regard. He deposes that it would be necessary to interview not less than 50 persons. He estimates on current information that it would take a number of months to complete this aspect of the discovery.
41 During argument, I indicated to Mr Sackar that it would be of assistance for the Court to be given some indication by the defendants as to the time presently believed to be necessary if the categories of extended discovery were to be ordered. On taking instructions, Mr Sackar, whilst making plain that it was not possible to be at all precise about the matter, referred to the possibility for example that the time required would be four months before the documents could be identified. He pointed out, of course, that this may be an underestimate or an overestimate.
42 There is then, so Mr Sackar put, a question as to whether the hearing dates now in place could be retained if, for example, after four months, the documents were able to be produced to the plaintiffs, and if the plaintiffs then required to digest the content of the documents so as for example to include that material in their opening address.
43 Outside this question of the difficulties of fixing an exact timetable if the categories of extended discovery are to be ordered, Mr Sackar on instructions approached the matter on what he put was a 'fall back' position. This included the tender of a confidential document which became Exhibit '250.1' and was the subject of a confidentiality order. That exhibit is but one of the documents which are in fact presently in train to be discovered under the present discovery regime. It is inappropriate to open up that confidentiality by now referring to particular sections of the subject exhibit. The broad proposition which Mr Sackar advanced, was that this document was an example of documents which would presently be produced under the existing discovery regime by the defendants. Mr Sackar's proposition was that what the plaintiffs were seeking are documents which refer to or comment upon or consider the importance of E-commerce and/or the benefit of E-commerce to one or more of the defendants in relation to the provision of financial services. It was then submitted that, as I understood the submission, documents already in train to be discovered under the existing discovery regime, would identify the importance and benefit of electronic commerce to the Bank.
44 I am not persuaded that Exhibit 250.1 or documents similar to this exhibit presently to be discovered removes the burden of the plaintiffs' claim to the expanded categories of discovery.
45 On the question of the suggested oppression in terms of the expanded categories of discovery, it is necessary only to refer back to the interlocutory judgment which identifies the issues and the significance to both parties of those issues. Discovery being one of the interlocutory procedures will no doubt be included in the ambit of costs orders at the end of the proceedings. I do not accept the defendants' submission that the plaintiffs are not entitled on their case as pleaded to discovery in terms of the extended categories of documents.
46 To my mind, the appropriate way forward is to distinguish between discovery in terms of the categories referred to in sub-paragraphs (a) and (b) of Schedule B to the amended motion. Those documents will be the subject of an order for production in four months, namely by the end of February 2000. On the other hand, the documents the subject of sub-paragraphs (c) and (d) of the definition of 'high level documents' in Schedule B of the amended motion will be discoverable by the end of March 2000, giving the defendants five months within which to produce those documents. Additionally, the proceedings will be listed for directions in relation to these categories of discovery on the first day of the new term in early February 2000, prior to which date the defendants are to file and serve an affidavit, identifying precisely what steps have by then been taken to satisfy the extended discovery categories order. That form of affidavit should assist the Court in being able to further tailor appropriate ancillary directions if necessary.
47 In my view, the plaintiffs are entitled to the following order:
Order that the defendants give discovery of the following documents by the following dates:
(1) High level documents created in the period from 6 November 1996 internally with any one or more of the defendants referring to or commenting upon or considering the importance to any one or more of the defendants of E-commerce for the provision of financial services.
(2) High level documents created in the period from 7 November 1996 recording, referring to or relating to analyses or evaluations or consideration of the benefit to any one or more of the defendants of E-commerce for the provision of financial services.
(3) In paragraphs 1 and 2 of this order 'high level documents' means:
All documents which were sent to:
(a) Any one or more of the individual defendants; and/or
(b) The board of directors of one of more of the corporate defendants; and/or
(c) Any person or committee or subcommittee reporting to any of the individual defendants or the boards of any one of the corporate defendants, and/or
(d) Any one or more persons in the Group Leadership Team (as described on page 13 of the National Australia Bank Limited 1998 Annual Report [being exhibit A1 as marked on the interlocutory discovery application heard on 28 September 1999].
(4) Discovery of documents sent to the persons and entities referred to in sub-paragraphs (a) and (b) of paragraph 3 is to take place by 29 February 2000.
(5) Discovery of documents sent to the persons and entities referred to in sub-paragraphs (c) and (d) of paragraph 3 is to take place by 31 March 2000.
(6) The proceedings are stood over for further directions on the first day of term next year, prior to which date the defendants' solicitors are to file and serve an affidavit dealing with the defendants' progress in complying with these directions. The affidavit is to detail the precise steps taken in endeavouring to comply with these directions.