Category 11
72 It will be recalled that the documents sought here are those which record or refer to the territorial division of cinemas in Australia by Hoyts and/or BCC, Exhibition and/or GU. It will further be remembered that his Honour rejected Reading's claim for their discovery, essentially for the reasons (at [45], [48]) that the relevant s 46 issue on the pleadings, was confined to the South Brisbane market and any abuse by the Cinema respondents of market power held elsewhere was, subject to a qualification stated at [46] (see below), "not an element in Reading's s 46 cause of action as presently framed"; and that, accordingly, this category (11) amounted to an impermissible attempt to "fish". The qualification stated by his Honour at [46] was that a document referrable to Reading's intention to develop and operate cinema complexes "generally, and unspecifically in the Commonwealth", could tend to relate to South Brisbane, as part of Australia as a whole, a matter upon which questions of relevance may need to be ruled upon (presumably pursuant to the liberty to apply reserved).
73 In my opinion, his Honour was clearly correct in holding that discovery must focus upon the issues raised by the pleadings; and in further holding that the relevant issue here concerned the South Brisbane market. But the question then arose as to how, in principle, discovery on the issues pleaded should be managed. In my view, in electing to press for documents of the category 11 class, Reading was not pressing a claim for general discovery in this field, nor for discovery in terms of r 2(3); rather, as a matter of substance if not of form, Reading was invoking either O 15 r 8 or the Court's inherent jurisdiction to supervise discovery in the course of managing the case with a view to achieving a fair process.
74 Order 15 r 8 relevantly provides:
"Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case … that there are grounds for a belief that some … class of document relating to any matter in question in the proceeding may be or may have been in the possession … of a party, the Court may order that party … [to discover … that class of document]."
75 On behalf of Reading, it is said that, for this purpose, there was evidence to ground the requisite belief; that is to say, the affidavit evidence (significantly, I think, unchallenged in these interlocutory proceedings) of Messrs Rochester, Pentecost, Ward, Cotter and Small, cited above; and, Reading says, that evidence includes evidence, albeit not in final form, from which an inference might be drawn of an understanding between Hoyts on the one hand and GU/Village on the other, that Hoyts would not develop a cinema in Brisbane outside the CBD (Mr Rochester, Mr Ward, Mr Small); and that Hoyts would not bid against the BCC/Village/Pacific consortium for the Mt Gravatt site (Mr Pentecost, Mr Cotter). It is then submitted for Reading that one way it could make out its case in establishing the relevant "purpose" in the context of Part IV (that is to say, the purposes or intentions of the respondents' officers in opposing Reading's entry into the Australian market) would be by proving that the respondents concerned had a continuing purpose of opposing Reading, from the time of announcing its entry into the Australian industry (in 1994), up to the time of the events at Mt Gravatt. Yet, the argument runs, his Honour disallowed access to documents which do not, on their face, contain an admission of a purpose of sufficient generality so as to include South Brisbane, notwithstanding that documents relating to six separate occasions upon which the respondents (variously) opposed Reading's entry into different markets in Australia provided a fair basis to demonstrate, inferentially, the existence of a general purpose to prevent Reading's entry into the Commonwealth. Accordingly, the submission runs, these documents must go to demonstrate the anti-competitive purpose of the respondents' conduct in the South Brisbane market.
76 On the other hand, on behalf of the Cinema respondents, it is submitted that his Honour correctly characterised Reading's claim to access category 11 documents as "fishing". These respondents say that the documents are sought on the basis that they are "relevant" to the existence of power in the South Brisbane market; and that what is alleged is a territorial separation between Hoyts on the one hand and GU/Village on the other. But, they argue, the fact, or otherwise, of territorial separation can be determined readily (without any need for discovery) by reference to the sites where cinemas are actually located; and there is no allegation in the S/C of any agreement etc. between Hoyts and GU/Village.
77 I have difficulty accepting the respondents' analysis.
78 For one thing, as has been noted, in Reading's pleading, the particulars given of its allegation that BCC and/or Village and/or Pacific have held a substantial degree of power in the South Brisbane market include the following (par 9(i)):
"(i) Outside of CBD markets, the Hoyts group and the Village and Greater Union groups maintained a territorial separation of their operations nationally including in Queensland and this meant that the Hoyts Group did not compete and could be relied upon by other exhibitors not to compete in the South Brisbane market." (Emphasis added)
79 Significantly, for present purposes, the respondents have not moved to strike out this part of the pleading as an immaterial, or otherwise, embarrassing allegation. Nor have they sought to demur to the allegation as bad in law, or to otherwise raise a preliminary point of law in this connection. That being so, as things now stand, we must proceed upon the basis that the claim in par 9(i) is a material allegation which raises an issue arising on the pleading. It would follow, I think, that under a general order for discovery, documents would (subject to one qualification) be discoverable if they "related to [this] question" in the traditional sense; and the description of the class being category 11 would be an apt description for discovery purposes. It would also follow, in my opinion, that in principle this does not appear to be a case of "fishing" with a view to framing an amended case, or a fresh one; rather it seems that Reading is seeking, by documentary material, to reinforce the affidavit evidence previously mentioned. This is a quite legitimate exercise in the discovery exercise, subject to the qualification to be mentioned.
80 The qualification is that previously mentioned, namely, that an order for specific discovery under O 15 r 8 (or in the exercise of the managerial jurisdiction) may be refused on the ground that it is unduly oppressive, having regard to the value of the discovery to the person seeking it, and to the burden imposed on the party giving it (see, Halsbury, op. cit.; and Butterworths, Practice at 40.800.1 and the cases there cited).
81 It follows, in my view, that category 11 documents should be discovered, unless this qualification is applicable in the particular circumstances. On the approach taken by his Honour, the potential operation of the qualification did not arise for consideration here. With respect, the primary Judge should have embarked upon this second stage in the process of considering the claims for specific discovery. At the same time, it is not, I think, appropriate that, as an appellate body, we attempt ourselves to weigh in the balance the competing considerations, beyond noting that the applicants appear to have, in their affidavit evidence already referred to, a good deal of evidence in this area, to which (at this early stage at least) no challenge has been made; thus raising the question whether documentary corroboration of such matters is necessary in the fair disposition of the proceedings, because, for instance, the category 11 documents will go only to credit issues. Put differently, as has been noted, each case must be considered according to the issues raised; but where there are numerous documents of slight relevance and it would be oppressive to produce them all, some limitations may be imposed. Discretionary, or judgmental, exercises of this kind ordinarily lie within the particular province of a docket Judge, who will have the advantage of full argument on this aspect, and the benefit of knowing how contentious in the final analysis, the affidavit evidence will be. The respondents did submit that his Honour implicitly exercised his discretion in their favour in this area. However, in my view, a reading of his Honour's reasons as a whole indicate that the Judge, on the approach he took on the issues as he saw them, did not need to, and did not in fact, address any question of a discretionary kind.
82 To this extent, in my view, the appeal should be allowed, the order dismissing the motion for discovery set aside; in lieu thereof, the motion should be remitted to the primary (docket) Judge for further hearing, and determination, in accordance with these reasons.