65 The rationale for Chancery's approach to contests over discovery was expressed by Bowen LJ in Lyell v Kennedy No 3 (1884) 27 Ch D 1 at 30 as follows:
"The true canon to be always borne in mind, is this: that you are appealing to the oath or conscience of the other side, and that you cease to appeal to his oath the moment you begin to contest his accuracy."
66 It is on this basis that the Courts have been averse to cross examination on affidavits verifying discovery. See Fruehauf Finance v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 at 360 et seq. in which Giles J, as his Honour then was, extensively reviewed the authorities.
67 The case has been conducted on the basis that proper discovery required the plaintiff to ascertain the existence of and obtain, if able to do so, relevant documents in the possession of its related corporations. Accordingly, I have not been required to examine the relationship between the plaintiff and other corporations in the Proctor & Gamble group, which I have loosely referred to as related corporations (but cf Lonrho Ltd v Shell Petroluem Company Ltd (No 2) [1980] 1 WLR 627; Linfa Pty Ltd v Citibank Ltd [1995] 1 VR 643 and Taylor v Santos Ltd (1998) 71 SASR 434.
68 I have treated the question in this case as one requiring examination of the documents discovered by the plaintiff, the verifying affidavits and certificates and the evidence of the discovery process adduced on behalf of the plaintiff.
69 As to category 1 : this category is repeated for ease of reference:
"1. Frank Anastasia, Doug Bierer, Doug Anderson, Jackie Williams, Pauline Bay and John Waldmann's copies of an email from John Waldmann to Frank Anastasia dated 8 September 1999 [reference: page 4 of exhibit EJP1 to the Affidavit of Emma Jane Press sworn 14 December 2000 ("EJP1") and paragraph 4.2 of the fax from BDW dated 28 September 2000 (pages 1 to 3 of EJP1)]"
70 Clearly, copies of the Waldmann email were forwarded to the persons named in this category and had not been discovered. The response of CBP of 2 November 2000 was that "everything in the Plaintiff's Possession" had been discovered. One of the problems with that response is that it appears from Williams' January affidavit that, at the time of that response, enquiries had not been made of related corporations of the plaintiff for discoverable documents.
71 Moreover, Lucas' January affidavit is inaccurate in stating that "multiple copies of [the subject email had] already been discovered and [were] listed on page 1.112 of the Plaintiff's List of Documents."
72 For the reasons earlier stated, I am satisfied that no serious enquiry had been made of the plaintiff's related corporations for relevant documents prior to the verification of the plaintiff's list of documents on 7 August 2000.
73 Moreover, I think it is clear from the affidavit of Williams sworn 6 February 2001 that she had not understood that, in addition to hard copies, it was necessary "formally to discover the electronic copies of relevant documents."
74 However, having regard to the evidence of enquiries of related corporations made by the plaintiff in and since November 2000, the responses to those enquiries, the affidavits of verification of the plaintiff's supplementary lists and the evidence of Williams as to the automatic deletion of emails by the "Lotus Notes" software, an order for further discovery in relation to this category is not warranted.
75 As to category 9 : this category is repeated for ease of reference
"9. All correspondence between the plaintiff and the TGA in relation to Sinex's failure to meet any stability tests including the notification given to the TGA/BoH of the shelf life reduction referred to in Exhibit JEW89 to the statement of Jacqueline Williams [reference: page 10 of EJP1 and fax from BDW dated 10 October 2000 (page 9 of EJP1)]."
76 The material there referred to evidenced an investigation that demonstrated that "the stability data [supported] only 12 months shelf life" and contemplated that manufacturing of Sinex with a shelf life of that duration "would require a notification to the TGA BoH of shelf life reduction".
77 Lucas, in his January affidavit, testified that "the Plaintiff [had] been unable to locate [documents within this category] despite an extensive and thorough search by the Plaintiff of the documents in its possession" and that documents of that description had not ever been in the possession, custody or power of the plaintiff.
78 Lucas also testified in relation to category 7 that "the plaintiff [had] in addition to its internal investigations, made enquiries of the Therapeutic Goods Administration…and [had] been informed that the TGA [had] no record of receiving such notification." It is not clear to me that the notification there referred to is the same notification as is the subject of category 9.
79 In her February affidavit, Williams testified that she had "searched for any document containing the notification to the TGA to reduce shelf life, but [could] find no document answering this description".
80 It was submitted on behalf of the defendant that there was a "substantial reason for … scepticism" in relation to the sufficiency of the discovery, having regard to the "contents of documents 1349 and 1450 produced in the Supplementary Discovery which indicated] that a Mr J Gray (Gray) was to do a 'notification' to the "TGA".
81 The documents referred to by senior counsel for the defendant were incorporated in the plaintiff's submissions in reply to which no objection has been taken. I think it is clear from those emails that Williams requested Gray to "commence application (notification ?) to TGA Aust and BOH (NZ) to reduce the shelf life of Sinex from the current 2 years to 1 year". In that same email he was requested to let Williams know if he required any data to support the application. He was requested to inform her of the type of application that would be necessary and the estimated time of approval.
82 The response of Gray was as follows:
'Just to confirm what we have been discussing. I have notified both Australia and New Zealand that we have reduced the shelf life to one year. In Australia it is a notification and took effect from the date it was sent . New Zealand on the other hand may ask some questions, but, I hope my letter which was faxed to them heads that off. We shall see." (Emphasis added)
83 It was submitted on behalf of the plaintiff that the subject emails do not disclose that Gray had made such an application and that there was no evidence that there was any correspondence with the TGA.
84 However, I think contrary to those submissions, that a notification had been "sent" to "TGA" as well as a letter having been sent to the New Zealand authority.
85 It is not clear to me who "J Gray" is and, in particular, whether he is part of the Proctor & Gamble organisation.
86 Notwithstanding, I think the evidence of Williams, in her affidavit sworn 6 February 2001, of specific search for this document should be taken as conclusive when read in conjunction with the affidavits of Lucas and those of the company secretary verifying the supplementary lists.
87 The affidavit verifying the Further Supplementary List identified the following amongst documents no longer in the possession, custody or power of the plaintiff:
"Any notification to the Therapeutic Goods Administration to reduce the shelf life of the SINEX product."
88 As to category 24 : this category is repeated for ease of reference:
"24. All documents relating to or recording the "results on active by running some parallel testing at a qualified testing lab in India" referred to in the email from John Waldmann dated 20 August 1999 [reference: pages 62 to 63 of EJP1 and paragraph 4.12(a) of the fax from BDW dated 6 November 2000 (pages 83 to 87 of EJP1)]. "