REASONS FOR JUDGMENT
1 A dispute has arisen about a major building project in the Sydney central business district. The builder, Leighton Contractors Pty Ltd ("Leighton"), has commenced proceedings ("the Leighton application") in this Court seeking pre-action discovery against a number of parties (collectively "the respondents"). It is unnecessary to descend into detail about who the respondents are and the nature of the discovery sought. It is sufficient to note that Leighton seeks discovery under both O 15A r 3 of the Federal Court Rules ("the Rules") to identify respondents as well as under O 15A r 6 to ascertain whether it might be able to obtain relief in the Court.
2 In the Leighton application, the respondents served on Leighton notices to produce under O 33 r 12. For present purposes, the notices to produce need not be considered separately. The issue for determination is whether O 33 r 12 has application in proceedings under O 15A, or put slightly differently, whether the right conferred on a party to proceedings by O 33 r 12 can be exercised in proceedings under O 15A. That issue is crystallised in an application by Leighton to have the notices to produce set-aside. Leighton submits that the right to serve a notice to produce (creating a corresponding obligation on the party served to produce what is sought) does not arise in proceedings under O 15A. This argument is founded on a judgment of O'Loughlin J in CCA Beverages Ltd v Hansford [1991] FCA 925.
3 In CCA Beverages Ltd v Hansford the applicant sought discovery underO 15A r 6. The applicant was the manufacturer of a food product described as a "soft serve food product" for which, it appeared, there was patent protection in the United States of America. The respondents were a food manufacturing company and its managing director. In the application under O 15A, the applicant sought an order for inspection under O 17 and the production of documents under O 33 r 12. An issue arose about whether the applicant could invoke rights conferred by those rules. O'Loughlin J described the issue arising for consideration in the following way:
[The applicant] has also sought an order under O 17 r 1(1)(e) permitting nominated persons to observe the process of manufacturing "Hi-Fruit" and it has served upon [the managing director respondent] and the respondent company a "Notice to Produce" certain nominated documents: O 33 r 12. There is a threshold question whether such procedures are available in the "pre-action" discovery process.
His Honour summarised the submissions of the applicant and set out some of his reasoning in the following passage:
On that subject, the applicant argued that this current application amounted to "proceedings" that were before the Court and that the existence of "proceedings" was sufficient to invoke so much of the Rules of Court as relate to orders under O 17 and O 33. It is true that the word "proceedings" is capable of a very wide meaning and it is true that the rules refer to an application for pre-action discovery as "proceedings" - see for example O 15A r 12(a)(i) and r 12(a)(ii). In Cheney v Spooner (1928-9) 41 CLR 532 Starke J was of the opinion that a civil proceeding included "any application by a suitor to a Court in its civil jurisdiction for its intervention or action" (p 538-p 539). In that case, the High Court unanimously held that a summons to attend for examination concerning the affairs of a collapsed company was a summons to appear and give evidence in a "civil proceeding" within the meaning of s 16 of the Service and Execution of Process Act 1901 (Cth).
But I do not believe that O 15A was ever intended to have effect beyond its own boundaries. It is a relatively new provision giving to potential litigants rights that were not previously available under the general law. For example, an applicant can now obtain the assistance of the Court in ascertaining the identity of a potential respondent (r 3); any person who is likely to have knowledge of facts or possession of documents tending to assist in identifying the relevant person may be the subject of an order to attend for examination or to make discovery of documents. Other examples are r 6 and r 8. R 6, the provisions of which are set out hereunder, deals with the subject of discovery against a prospective respondent whilst r 8 deals with discovery from a non-party after proceedings have been commenced.
4 His Honour then set out O 15A r 6 and continued:
The provisions of r 10 suggest, in my opinion, that O 15A is self-contained; it expressly incorporates Division 2 of O 15 (dealing with inspection of documents) stating that the Division shall, "with any necessary modifications, apply to the inspection" of the documents that are referred to in the list of documents made and served in accordance with O 15A.
O 15A also includes in r 12 a power to order inspection etc of property. This rule is similar to O 17 r 1(1), the provision pursuant to which the applicant has moved the Court for orders permitting its personnel to observe the production process of "Hi-Fruit". Although there are differences in the language of the two provisions, there is sufficient similarity of subject-matter to justifiably ask why there was a need to insert r 12 as part of O 15A if the general provisions of the Rules of Court and, in particular, the provisions of O 17 r 1 were available at the "pre-action" discovery stage. In my opinion these comments lead to the conclusion that the applicant is not entitled to an order under O 17 and to the further conclusion that it should not have issued the Notice to Produce. I dismiss that application and I direct that the respondents are excused from responding to that Notice.
In coming to the conclusion that the provisions of O 15A should be treated as if it were a self-contained code so that an applicant is limited to the remedies and orders that are contemplated by its rules, I do not believe that I am expressing views that are contrary to those to be found in the judgment of Burchett J in Richardson Pacific Ltd v Fielding (1990) 26 FCR 188. In that case, his Honour was of the opinion that O 15A expanded "the Court's armoury" (p 188) and that the exercise of the new-found jurisdiction should not "be fettered by any precise rules not suggested by the terms of O 15A itself".
A question immediately arises whether his Honour determined the legal issue on which Leighton's application to set aside the notices to produce is based. If so, then I am bound to follow his Honour's judgment unless I am satisfied it is plainly or clearly wrong: Bank of Western Australia Ltd v Commissioner of Taxation for the Commonwealth of Australia (1994) 55 FCR 233. The respondents submit that his Honour only determined that an applicant for pre-action discovery does not have a right under O 33 r 12 to serve a notice to produce creating a consequential obligation on the party served to produce what is sought. Observations of Tamberlin J in CGU Insurance Ltd v Malaysia International Shipping Corp Berhad [2001] FCA 681 might be thought to support that view of what was decided in CCA Beverages Ltd v Hansford. But what must be determined is what the ratio in CCA Beverages Ltd v Hansford was. It can sometimes be difficult to determine what is the ratio of a particular judgment but it includes an essential step in the reasoning process: Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 at [24] - [27].
5 It seems to me that O'Loughlin J approached the question of whether the applicant could exercise the right conferred by O 33 r 12 by asking whether the procedures in O 15A operated to the exclusion of other procedures in the Rules (at least concerning inspection and the production of documents) because, by implication, the rights (and obligations) of parties to proceedings under O 15A were exhaustively identified in that Order. I take his Honour's reference to the Order being "self-contained" as indicating that he concluded they were exhaustively identified. I do not think his Honour was saying they were exhaustively identified for an applicant but not or, at least not necessarily, for respondents to an application for pre-action discovery. Accordingly, part of the ratio of this case was that, by implication, the rights (and obligations) of parties to proceedings under O 15A were (at least concerning inspection and the production of documents) as a matter of construction of the Rules as a whole, exhaustively identified in that Order. Unless I am satisfied his Honour was plainly wrong I would be bound to set aside the notices to produce purportedly served under O 33 r 12.
6 The respondents submit his Honour was plainly wrong. They advance a number of arguments, at the forefront of which is the apparent unfairness in denying respondents to an application for pre-action discovery the opportunity of obtaining documents from an applicant in order to demonstrate that the preconditions for obtaining pre-action discovery do not exist. For example a respondent may wish to demonstrate the applicant does have sufficient information to enable the decision to be made whether to commence a proceeding or demonstrate the applicant has been able to ascertain the description of a person sufficiently for the purpose of commencing a proceeding. To do that, a respondent may well need access to documents in the possession of the applicant for pre-action discovery and O 15A does not, in terms, contain a mechanism which would enable a respondent to obtain access. There is force in this submission. Similarly there is force in the submission that it would be anomalous if, as counsel for Leighton conceded, a respondent could apply to have an application for pre-action discovery dismissed as an abuse of process and in such an application exercise rights conferred by the Rules more generally including the right to serve a notice to produce. The resolution of this question may turn on the meaning of "proceeding": see s 4 of the Federal Court of Australia Act 1976 (Cth).
7 However one can understand why the Rules might be intended to operate in the way determined by O'Loughlin J. If all the procedures, rights and obligations created by the Rules more generally operate in relation to an application for pre-action discovery, then such applications could potentially take on the dimensions of proceedings for final and substantive relief at the point in time before any proceeding for final and substantive relief had commenced. I am not satisfied the judgment in CCA Beverages Ltd v Hansford is plainly wrong. Accordingly I propose to order that the notices to produce of the respondents be set aside.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.