Idoport Pty Ltd v National Australia Bank Limited

[Defendants' written submissions dated 25 February 2000 at paragraph 4]. 14 The defendants submitted that the facts in relation to which discovery has been ordered were not the subject of a pleading in the plaintiffs' amended statement of claim and that accordingly the defendants were unable to plead to those facts by way of admission or denial. The submission is that in the light of the recent admission by the defendants set out above, the only facts in relation to which discovery had been ordered are no longer appropriately described, "facts in issue" and that there can be no discovery in relation to them so that the discovery orders, or the obligations of the defendants under the orders, should be discharged. 15 There is no issue as to the Court's power to discharge the discovery orders either under Part 23 Rule 4(a) or pursuant to the inherent jurisdiction of the Court. Under rule 4(a) the Court has an unfettered discretion to discharge the obligations of a party under order for discovery. I accept as correct, the defendants' submission that the rule extends to deal with situations where discovery may be shown to have been ordered in relation to facts which were at an earlier point in time in issue and which later cease to be in controversy. 16 I further accept that under the inherent jurisdiction, the Court has unfettered power to discharge procedural orders. Clearly enough the October orders are of an interlocutory procedural nature as opposed to being interlocutory orders of a substantive nature, as would be the case, for example, with an order for an interlocutory injunction or the appointment of a receiver or provisional liquidator. 17 Both parties accept as correct the following statements of principle by McLelland J, as his Honour then was, in Brimaud v Honeyset Instant Print Pty Limited (unreported 19 September 1988, Supreme Court New South Wales; Butterworths unreported judgments Bc 8801 491): "The over-riding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the Court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see e.g. Wilkshire v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see e.g. Warringah Shire Council v Industrial Acceptance Corporation - McLelland J 22 November 1997 unreported). In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application (see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-8; Chanel v Woolworth & Co [1981] 1 WLR 485 at 492-3; Adam P Brown Male Fashions v Philip Morris 148 CLR 170 at 177-8; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano v Burgess [1988] 1 WLR 890 at 894)." 18 Likewise both parties accept the following statement of principle from the judgment of Muirhead J in Wilkshire and Coffee v Commonwealth of Australia (1976) 9 ALR 325 at 330. "I take the view that there is inherent power in this court to regulate and govern its own practices and procedures, subject of course to questions of jurisdiction, and that this power includes the right to review and set aside orders including consent orders made in chambers upon a summons for directions provided the orders are procedural only and have not determined in whole or in part the rights or status of parties on the essential issues involved in the case." 19 Both parties accept that in relation to procedural orders there is no requirement that the party seeking to discharge such order should show a material change of circumstances since the original application was heard (Brimaud at page 3). 20 The defendants, it should be noted, submit that in any event, even if they were required to demonstrate a material change of circumstances, there are here such circumstances, being the suggested admission by the defendants of the only fact which, on the defendants submissions, founded the orders. 21 In the result the central focus of the argument on the motion involved a minute examination of the October orders (specifically orders (1) and (2) on page 15 of the judgment) and of relevant passages in the judgment of the Court of Appeal. 22 It is convenient to commence by reference to sections of the October judgment. Whilst the following serves to summarise these sections, plainly the original judgment requires to be referred to, to obtain every word which may have been set out in that judgment. 23 The judgment at paragraph 30 found that the proceedings threw 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 [I interpolate that in paragraph 17 of the joint judgment in the Court of Appeal, Mason P and Priestly JA in referring to the second branch of the defendants' submission that the width of the orders made them oppressive, this being the submission that compliance with the orders would require the production of documents not necessarily relevant in the defined sense. Mason P and Priestly JA said. "If the issues as set out by Einstein J in the passage cited above from his reasons (I interpolate to point out that this passage is that referred to above extracted from paragraph 30) are correctly stated then orders (1) and (2) describe classes of documents which could rationally affect the assessment of the probability of the existence of facts bearing on the issues"]. 24 The judgment outlined the plaintiffs' submissions in paragraph 16, 17, 18 and 19. The judgment in paragraph 26 stated that to my mind, the plaintiffs' submissions outlined in these paragraphs were of substance. 25 In paragraph 16 the Court set out the plaintiffs' submissions that the subject documents were relevant to the following issues: "(a) the identity of the Ausmaq service. (b) the issue of functionality, namely whether the subject bank services...are services with "equivalent or similar functionality" to the Ausmaq service. (c) damages -- the plaintiffs claim including loss of opportunity damages should the Ausmaq service be held to be a version of E-commerce. 26 In paragraph 17 the Court set out the plaintiffs' submission that if one of the bank documents sought to be made the subject of the further discovery orders, recognised that E-commerce is a crucial service in the modern banking environment, then the plaintiffs were entitled to rely on that document in support of their case that the Ausmaq service ought to have been, but was not, promoted, developed and exploited pursuant to the banks alleged contractual obligations to so promote, develop and exploit that service. Paragraph 17 concluded with the words "on the plaintiffs submissions these are all matters which go to the quantum of the plaintiffs' claim to damages". 27 Paragraph 18 in the judgment stated that the plaintiffs sought discovery of the subject documents in an attempt to prove as part of their case: · that the prospects of success in the marketing and exploitation of the Ausmaq system were clearly perceived to be such by the bank as to warrant it entering into the various agreements with the plaintiffs · that the defendants and in particular the bank in fact recognised and recognises that E-commerce was and is likely to be the major direction of future banking or to provide a substantial base for the revenue of the banks including the National Australia Bank · for the purpose of proving that material in the possession of the defendants relating to E-commerce [which it was submitted includes the Ausmaq system], will be shown to be relevant to the perceived value and importance of the Ausmaq system as part of E-commerce to the bank. 28 Paragraph 18 stated that the submission was that such documents may be admissible as admissions of the bank relating to the importance of E-commerce and hence the Ausmaq system. 29 Paragraph 18 further stated that the submission was that such documents would also be relevant to the question of loss of a chance. 30 Paragraph 18 also stated that the submission was: "that if the bank itself formed the view that E-commerce and the Ausmaq system were important, then the Court is able to logically draw an inference both from that fact and from the bank's position as the main, or one of the main financial institutions in Australia, that other financial institutions including leading international financial would similarly have regarded and presently regard the Ausmaq system as a valuable, attractive and a worthwhile system to be party to or worthy of consideration in respect of purchase or otherwise use". 31 Paragraph 19 set out the plaintiffs' submission: "that matters relating to E-commerce and the defendants comments and perceptions in relation to E-commerce are clearly relevant to issues of breach including motive and damages and by potentially revealing admissions in documents". 32 In paragraph 18 of the joint judgment in the Court of Appeal the following paragraph appears: "Counsel for the defendants disagreed that issues (a) and (b) of the 3 issues specified by his Honour [referring to the 3 issues set out in the October judgment at paragraph 30] were in fact issues in the case. He submitted that issue (c) was not, because it did not appear from the pleadings. Therefore, he said, the documents referred to in (c) could not be said to be relevant to any issues in the case. However, this argument had been put to the trial Judge whose expressed view was that the point was not fatal to the discovery the documents relevant to the issue, because on his understanding of the case from the argument and the pleadings, the documents were relevant to facts in issue, including facts relevant to assessment of damages. This seems to us to be a sound position for him to have taken, and on our understanding of the case as it was differently explained by counsel for the defendants and the plaintiffs before this Court, we agree with his Honour's conclusion". 33 The defendants submitted that a careful reading of the plaintiffs' submissions in reply put to the Court at the original hearing in mid 1999 and dated 11 June 1999, makes plain that what the plaintiffs had put was that it was the importance of E-commerce as the medium for conducting the banking business for the provision of financial services that was the basic fact in issue in respect of which discovery should be ordered, so that admissions or a recognition of that importance could be ascertained. 34 The October judgment clearly accepted the plaintiffs' submissions that the subject documents were relevant to facts in issue including facts relevant to assessment of damages. The majority in the Court of Appeal in paragraph 18 of the joint judgments extracted above recognised this expressly. 35 The judgment of 28 October 1999 in accepting as of substance the plaintiffs' submissions outlined in paragraphs 16, 17, 18 and 19 of the judgment, accepted: (i) that the matters referred to in paragraph 17 of the judgments "are all matters which go to quantum of the plaintiffs' claim to damages" [see paragraph 17] (ii) the relevance of the documents sought "to the question of loss of a chance" [see paragraph 18] (iii) (a) that matters relating to E-commerce; and (b) the defendant's comments and perceptions in relation to E-commerce, are relevant to issues of breach, including motive and damages as well as by potentially revealing admissions in documents. 36 Ultimately, the defendants in argument before the Court on the application for discharge of the October orders, were compelled to rely heavily on the terms of orders (1) and (2) of the orders set out on p 15 of that judgment, in support of the submission that paragraph 30(c) of the judgment encompasses the essential and only place from which one should extract what were the facts in issue grounding the discovery orders. The argument was that the words in para 30(c) "the recognition", made plain that the only facts in issue grounding the orders were the importance and benefit to the defendants of E-commerce for the provision of financial services. 37 Paragraph 16 of the October judgment had, of course, set out the plaintiffs' submissions that the subject documents were relevant inter alia to "damages - the plaintiffs' claim including loss of opportunity damages should the Ausmaq service be held to be a version of E-commerce". 38 The defendants' submission also focused upon references in the October judgment to recognition by the defendants of E-commerce as a crucial service in the modern banking environment [see para 17]; to the bank's recognition that E-commerce was and is likely to be the major direction of future banking [see para 18(b)]; to the reference to the "perceived value and importance of the Ausmaq system as part of E-commerce to the bank [see para 18(c)]; to the references to the documents as being admissible as admissions of the bank relating to the importance of E-commerce and hence the Ausmaq system [see para 18]; and to the references to the defendants' comments and perceptions in relation to E-commerce as relevant to particular issues. 39 The defendants submit that the terms of the so-called admissions have been framed to pay careful attention to use in the October judgment of the references to the defendants' recognition of the significance and importance of E-commerce to the bank. Hence emphasis is placed by the defendants upon the words "considered and recognised" and "considerable" appearing in sub-para (a) of the admission. 40 The defendants' submission is that, in essence, the facts in issue were "all about the bank's perceptions and admissions". The submission is that the court accepted that such documents as might be found within the documents ordered to be discovered, might bolster the plaintiffs' case as to damages and in particular the loss of opportunity case. 41 The defendants submit that having made the new admissions the plaintiffs are placed in a position in which they may now invite the court to draw at the trial whatever inferences can properly be drawn from the admissions or are capable properly of being so drawn, as to the issue of damages or as to the question of loss of royalty or royalty rights, or on any other issue. 42 The defendants submit that it is true that damages constitute an ultimate issue. The submission is that before the Court reaches that ultimate issue the plaintiffs have asserted, and the Court has accepted, that there are other sub-issues of fact which require to be determined. The defendants submit that one such sub-issue of fact has, on the plaintiff's approach, been the importance and benefits of E-commerce generally to the bank. On the defendants' submission, the plaintiffs' approach has been that if there are documents extolling the benefits generally of E-commerce to the bank, this would enable the plaintiffs to rely upon such documents in proof of this sub-issue of fact. The defendants submit that the plaintiffs' approach has been that, whether the bank considered E-commerce to be of benefit, would be a matter which goes to assess the plaintiffs' case for damages either because documents proving this fact would permit inferences to be drawn as to the bank's exercising what is described as "the buy-out option" or otherwise. 43 Hence the defendants' submission is that the real matter in issue which the Court accepted as grounding the discovery orders was not the wider issue of damages generally, but was the sub-issue constituted by the narrower question of the importance of E-commerce to the bank. On the defendants' submission the Court in ordering discovery had not been concerned with the issue of damages other than insofar as the importance and benefit to the defendants of E-commerce for the provision of financial services was concerned. 44 Finally the defendants sought to rely upon an exchange which had taken place between Mason P and Mr Karkar QC for the defendants during argument on the application for leave made to the Court of Appeal. The relevant passage appears in the transcript of 9 February 2000 at p 29 over to p 30. Mason P had said, following some debate, in relation to documents which Mr Karkar had indicated that the defendants were prepared to provide: "but that should virtually be the end of your present application, shouldn't it, because the likelihood is that when you do that and when you report progress in this affidavit, that you have got 14 days yet to file, the matters in real issue either never existed or go away or are so likely to go away that we should not grant leave to appeal to this Court ..." 45 The parties were at issue as to precisely which earlier section of what Mr Karkar had put to the court, Mason P was responding to. Earlier on transcript, page 29, Mr Karkar had stated an instruction to admit that at all times since 1996 E-commerce was considered as important and beneficial to the bank and that there was no controversy in the case having regard to that admission the made in open court. 46 The statement by Mason P in argument was initially relied upon by Mr Karkar as of persuasive force. Later during the argument before me, Mr Karkar accepted that what is said in the Court of Appeal during argument would have to be very carefully looked at indeed, by any first instance judge hearing a related or seemingly related application. My own view, and I understood Mr Karkar to accept this, is that the statement by Mason P was not part of the judgment and was not intended in any fashion to bind my own decision on an application such as the present. Naturally as a court of first instance, I would on all occasions be sensitive in the extreme to comments made even during argument by the Court of Appeal, where counsel appearing before me sought to gain assistance from those comments. At the end of the day, clearly matters stated in argument are not binding in a formal sense on a trial judge. Nor am I persuaded that Mason P was doing otherwise than simply responding to matters during argument rather than giving any considered view on a specific application. 47 The plaintiffs oppose the orders now sought and do so with vigour. They submit, as I accept, that the defendants' submissions do not do justice to the proper identification of the facts in issue. Mr Garnsey QC, appearing for the plaintiffs on the motion, submitted that the October judgment had followed a lengthy process and had followed full argument and that only now upon the occasion when the documents are about to be produced, did the defendants seek a discharge of the orders. 48 The plaintiffs submit that the so-called admissions are "no more than an admission that motherhood is good". On the plaintiffs' submissions, the so-called admissions are of general and self-evident interest but are far indeed from admissions, for example, to the following effect: "We admit that the bank is formally developing and marketing particular services with particular features which will give the bank particular benefits, whether of a competitive edge or of an estimated revenue or other worth." 49 On the plaintiffs' submissions, the plaintiffs would anticipate the documents to be discovered, following the October orders, to identify what services the bank has been developing and marketing, when this has taken place, when this has been approved and, importantly, what in dollar terms will the subject services be worth to the bank over a specified period. 50 The plaintiffs submit that they anticipate sighting in the documents to be discovered, admissions as to the function and purpose of the defendants' subject services as will assist the plaintiffs to prove their case of functional equivalence or similarity. Importantly, the plaintiffs submit that it is necessary for them to look at the precise documents. Estimates of future revenue from the bank's services which may appear in the high level documents to be discovered would, on the plaintiffs' submissions, assist them to prove their loss of chance case. 51 On the plaintiffs' submissions, the whole of the defendants' proposition self-destructs. This is because, on the plaintiffs' submissions, the defendants' approach takes the design of a class of documents ordered to be discovered on the basis that the particular contents of those documents may assist the plaintiffs' case, for example, on damages and equates the description of the class of documents with the contents of the discovered documents. Here the plaintiffs refer the Court to para 18 in the judgment of the Court of Appeal earlier extracted. 52 The plaintiffs then submit that the purpose of the discovery which has been ordered is to enable the proper use of the contents of those documents by the plaintiffs for the purposes of the proceedings. 53 The plaintiffs anticipate being able to utilise the documents being discovered to prove, for example, that the Ausmaq service was deliberately set aside for particular reasons which the documents are expected to elaborate. The plaintiffs anticipate being able to utilise the documents being discovered to prove, for example, admissions going to the functional or similar equivalence issue. The plaintiffs anticipate being able to utilise the documents to be discovered by way of proving the defendants' admissions of the worth of E-commerce services to the bank, in terms of estimates of what the bank anticipates to receive in revenue terms from promotion of those services. 54 The plaintiffs further submit that they have a fiduciary obligation case pursuant to which, on their submissions, the bank is not able to set itself up in a position of conflict of interest as between the bank's position on the one hand and that of NMG on the other hand. 55 The plaintiffs submit that the defendants are likely to contend at the hearing that the plaintiffs' claim to loss of opportunity damages are far too speculative. The plaintiffs submit that it is likely that the documents to be discovered will provide direct evidence as to the defendants' own estimates as to future earnings and will be invaluable to the Court in evaluating future estimates in relation to the alleged loss of chance. 56 The plaintiffs' submission is for the defendants' admissions to lead to the October discovery orders being discharged, it would be necessary that the admissions cover the contents of any documents falling within the three categories of documents identified in the October judgment at paragraph 30. 57 The plaintiffs' submission is then that the subject admissions are in very general terms and of no particularity such as would be expected to assist the Court, absent resort to other materials, to resolve issues of equivalent or similar functionality or to resolve issues going to the plaintiffs' complex damages cases. The submission is that it must be the case that the documents to be discovered may well contain material of value to the plaintiffs in seeking to make good their damages case as, for example, by placing a monetary value on the worth of particular E-commerce services to the bank. 58 In para 26 of the October judgment I stated that it was reasonable to suppose that the documents sought by way of extended discovery from the defendants "relate to the substance of the dispute thrown up by material allegations pleaded". The October judgment examined closely the relevant sections of the pleadings and set out in detail the opposing submissions of both parties. As noted by Fitzgerald JA in paragraph 21 of his reasons for judgment, the correctness or otherwise of the October orders ultimately depends on an analysis of the pleadings. In paragraph 18 of the judgment of the majority in the Court of Appeal, the Court in dealing with my view that on my understanding of the case from the arguments and the pleadings, the documents were relevant to facts in issue, including facts relevant to the assessment of damages, said: "This seems to us to be a sound position for [the trial judge] to have taken and on our own understanding of the case, as it was differently explained by counsel for the defendants and the plaintiffs before this court, we agree with his Honour's conclusion." 59 It seems to me that the plaintiffs' submissions extracted above as to the purposes for which the October discovery orders were made, as to the issues to which the October orders go and as to the reasons why the admissions fall far short of resulting in the removal of relevant facts in issue, are generally of substance. Following further argument on the motion now before the Court and having re-examined the question, I remain of the clear view expressed in paragraph 26 of the October judgment that notwithstanding the admissions, it is reasonable to suppose that the documents sought by way of extended discovery from the defendants relate to the substance of the dispute thrown up by material allegations pleaded. 60 The admissions now proffered are insufficient to require the discharge of any section of the October orders. The defendants' notice of motion for those reasons is dismissed. 61 I stand over the argument on costs until Friday 3 March 2000. I certify that paragraphs 1 - 61 are a true copy of the reasons for judgment herein of The Hon. Justice Einstein given ex tempore on 29 February 2000 and now revised on 10 March 2000

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Judgment (10 paragraphs)

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Cases Cited (3)

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