The Notices to Produce
20 The Motion presently before the Court has evolved into one in which the relief sought is now as follows:
'1. Paragraphs 1 - 5 and 8 - 10 inclusive of the Notice to Produce dated 22 August 2007 (Exhibit AM2) issued by the respondent, be set aside.
2. The costs of the motion be costs in the Order 15A rule 6 Amended Application filed 9 August 2007.
3. Such further or other order as the Court deems fit.'
21 It is appropriate to shortly state the history of the Minister's several Notices to Produce and of Telstra's applications in relation thereto.
22 On 10 August 2007 the Minister served a Notice to Produce in accordance with Order 33 rule 12 of the Rules upon Telstra. Order 33 deals with 'EVIDENCE: GENERAL'. Rule 12 relevantly provides:
'12(1) Where a party to any proceedings serves on another party notice, in accordance with Form 45, requiring the party served to produce at any trial or hearing in the proceedings … any document … for the purpose of evidence and the document … is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders, produce the document … in accordance with the notice, without the need for any subpoena for production
…'
23 In Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 428 ('Tyco') Hill J said at [44] - [46]:
'44 While there is nothing in the procedural requirements of O 15A, r 9 that deal with the filing by a respondent to an application for pre-action discovery of affidavit evidence in opposition, it has never been suggested that such affidavits could not be filed. One example where affidavits were filed was Conrock Ltd v CSR Ltd (1990) 96 ALR 690. In that case, Pincus J finally made no order for costs against the respondent, notwithstanding that the applicant was successful. The affidavits went to the question of confidentiality of documents as well as a claim that compliance with the pre-action discovery would be oppressive and onerous. In Legent Corp v Fundi Software Services Pty Ltd (unreported, Federal Court, Lockhart J, No G134 of 1992, 13 July 1992), affidavit evidence was filed by both the applicant and respondent and cross-examination was foreshadowed. However, the matter settled. Justice Lockhart observed (at 7) that the parties could not necessarily assume that they would have a right to cross-examine. His Honour cites no authority for this proposition. Perhaps what his Honour meant was that the Court would control, in its discretion, the extent of cross-examination, having regard to the issue between the parties. One can only speculate.
45 It would seem, also, that notices to produce have been issued in other pre-action discovery proceedings. It seems that Gummow J in Aitken v Neville Jeffress Pidler Pty Ltd (1991) 33 FCR 418 allowed the issue of a notice to produce and that it was answered. Likewise, it would seem that a notice to produce was issued in Legent and in CGU [CGU Insurance Ltd v Malaysia International Shipping Corp Berhad [2001] FCA 681]. It is not clear from the report of Aitken or Legent that any argument was directed at the question whether a notice to produce could issue and in those circumstances it is difficult to treat these cases as authority for the view that there is power to issue a notice. On the other hand, it is perhaps not irrelevant that it is only since CCA Beverages[CCA Beverages (Adelaide) Ltd v Hansford (unreported Federal Court, S G58 of 1991, O'Loughlin J, 15 November 1991)] that there was thought to be a difficulty with that power.
46 However, for the reasons I have given, I am of the view that there is power to issue, in an appropriate case, a notice to produce in pre-action discovery proceedings. Whether the notice should be confined clearly depends upon the issues that are said to arise and in respect of which the production of documents is sought. An applicant who seeks to use a notice to produce, in effect, to gain production of the very documents which are the subject of the pre-action discovery will not have given the notice to produce in good faith, but rather, will have acted in a way that is an abuse of process. Otherwise, in principle at least, the notice to produce procedure may be exercised by both parties if otherwise relevant to issues in dispute. However, I would emphasise that it clearly is not contemplated that a pre-action discovery proceeding become a full-blown factual contest between the parties. The judge hearing the application will, no doubt, confine cross-examination and examine the subject matter of any notice to produce to ensure this does not become the case.'
24 Hely J recorded his general agreement with Hill J's reasons. At [54] his Honour said:
'Contestable issues of fact may arise in proceedings under O 15A for preliminary discovery: St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147. There is no reason why the ordinary interlocutory procedures should not be available to assist in the resolution of those contestable issues of fact, subject to the overriding consideration that the invocation of those procedures does not amount to an abuse of the process of the Court: Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210. Thus, at least prima facie, it would be an abuse of process for an applicant for preliminary discovery to seek to compel the production of documents by notice to produce, when the production of those documents is sought under O 15A, r 6. But it does not follow, for example, that a subpoena sought to be issued by an applicant for preliminary discovery against a third party would necessarily be an abuse, depending upon the scope and purpose of the subpoena.'
25 It may be seen from what has been said above that the Minister's Notice to Produce served on Telstra could hardly amount to an abuse of process in the sense indicated in the passages from Tyco quoted above. A potential abuse of process might have arisen were Telstra to have issued a Notice to Produce to the Minister requiring the production of the very documents which a discovery order may identify.
26 Telstra's objection to the Minister's Notice to Produce urged that 'none of the documents sought in the Notice are relevant to the issues in the present proceeding'.
27 The Minister's original Notice to Produce dated 10 August 2007 called for the production of documents covered by 16 separate paragraphs. By a Notice of Motion filed 14 August 2007 Telstra sought an order that the initial Notice to Produce dated 10 August 2007 be set aside.
28 On the return date for the Notice of Motion filed 14 August 2007 the Minister informed the Court of her intention to inform Telstra in writing by no later than 4:15 pm on 17 August 2007 whether she required Telstra to respond to the initial Notice to Produce dated 10 August 2007 or whether she would withdraw that Notice to Produce and serve a fresh Notice to Produce. The Minister through her counsel indicated that any fresh Notice to Produce would be served no later than 4:15 pm on 17 August 2007.
29 The Minister did not press for compliance with her initial Notice to Produce.
30 On 21 August 2007 an order was made by consent that Telstra's Notice of Motion filed 14 August 2007 seeking relief in respect of the Minister's initial Notice to Produce dated 10 August 2007 be dismissed with no order as to costs.
31 By that time the Minister had served upon Telstra a fresh Notice to Produce dated 17 August 2007 which called for the production by Telstra of documents covered by 12 separate paragraphs.
32 On 21 August 2007 leave was granted to Telstra to file in Court a fresh Notice of Motion dated 20 August 2007 returnable instanter seeking to set aside the Minister's second Notice to Produce issued on 17 August 2007. The hearing of that Notice of Motion commenced on 21 August 2007 and concluded on 22 August 2007. Telstra read two affidavits of Geoffrey Edward Healy, a partner at Freehills, the solicitors for Telstra, sworn 20 and 21 August 2007 respectively and also an affidavit of Paul Smith sworn 2 August 2007 upon which Telstra intended to rely at the hearing of its Amended Application filed 9 August 2007 for discovery in accordance with Order 15A rule 6 of the Rules, which is presently fixed for hearing on 13 September 2007.
33 On 22 August 2007 the Minister served a third form of Notice to Produce dated 22 August 2007 on Telstra seeking the production before the Court on 22 August 2007 or such other date as the Court may direct of documents covered by 12 separate paragraphs. The third Notice to Produce became Exhibit AM2 on the hearing of Telstra's Motion. Leave was granted to Telstra to amend its Notice of Motion dated 20 August 2007 to confine it to one seeking to set aside paragraphs 1 to 5 and 8 to 10 inclusive of the Minister's third Notice to Produce.
34 Along the way, Dr J E Griffiths SC, senior counsel for Telstra, produced two redacted forms of Notice to Produce with which Telstra was prepared to comply but agreement was not reached between the parties on the scope of an appropriate Notice to Produce.
35 A copy of the Minister's third Notice to Produce dated 22 August 2007 (Ex AM2) is attached to these reasons for judgment as Appendix 'A'.
36 In the light of the narrowing by the Minister of the requirement for the production of documents in accordance with paragraphs 6, 7, 11 and 12, Telstra has withdrawn its objection to the production of documents in response to those paragraphs as recorded in the Minister's third form of Notice to Produce (Ex AM2).
37 This leaves for consideration the documents covered by paragraphs 1 - 5 and 8 which Telstra contends lack relevance and the production of which Telstra submits would be oppressive.
In relation to paragraphs 9 and 10 of the Minister's third Notice to Produce (Ex AM2), they called for the production of:
'9. All documents recording or referring to any consideration (including any decisions made in relation thereto) by Telstra as to whether to:
(a) commence a legal challenge to the:
(i) BCIP process; or
(ii) the selection of OPEL Networks Pty Limited as the successful applicant for funding under the BCIP; or
(b) commence legal proceedings claiming (whether solely or with other claims) that it was denied procedural fairness under the BCIP process.
10. All documents recording or referring to any consideration (including any decisions made in relation thereto) by Telstra as to whether or not it had sufficient information to commence proceedings for relief (other than the present proceedings for preliminary discovery) against the Minister for Communications, Information Technology and The Arts or the Commonwealth in relation to the BCIP.'
38 Telstra repeatedly submitted that it may have been denied procedural fairness in circumstances where it never had an opportunity to submit a proposal to the Minister which might attract funding of $958 million rather than the $600 million for which the Broadband Connect Infrastructure Program Guidelines provided.
39 By the handing up in Court of a draft form of Notice to Produce at about 11:36 am on 22 August 2007 Telstra indicated, through its counsel, its willingness to comply with such a Notice to Produce. In lieu of the Minister's paragraphs 9 and 10 as quoted above Telstra's draft included the following, which I have numbered to accord with the Minister's numbering, to the extent to which that is possible:
'9. All documents recording or referring to any decision by Telstra to:
(a) commence a legal challenge to the:
(i) BCIP process; or
(ii) the selection of OPEL Networks Pty Limited as the successful applicant for funding under the BCIP; or
(b) commence legal proceedings claiming (whether solely or with other claims) that it was denied procedural fairness under the BCIP process.
9A. All documents recording or referring to Telstra being in a position to decide to commence a legal challenge or legal proceedings, as referred to in paragraph 9 above.
10. All documents recording or referring to any decision made by Telstra as to whether or not it had sufficient information to commence proceedings for relief (other than the present proceedings for preliminary discovery) against the Minister for Communications, Information Technology and The Arts or the Commonwealth in relation to the BCIP.'
40 In support of its proposed redefinition of paragraphs 9-10 in the Minister's third Notice to Produce dated 22 August 2007, Telstra relied upon the decision of Lindgren J in Alphapharm Pty Limited v Eli Lilly Australia Pty Limited [1996] FCA 391 ('Alphapharm').
41 Eli Lilly Australia Pty Limited apparently wrote a letter dated 16 April 1996 to pharmacists throughout Australia in relation to Alphapharm Pty Limited's anti-depressant drug 'Zactin' and Eli Lilly Australia Pty Limited's competing anti-depressant drug 'Prozac', which had been on the market for a much longer time than Zactin. Alphapharm Pty Limited complained to Eli Lilly Australia Pty Limited about the letter. Eli Lilly Australia Pty Limited's solicitors responded to the effect that their client had in its possession material which fully supported the allegations. This led Alphapharm Pty Limited to apply for an order pursuant to Order 15A rule 6 of the Rules for discovery by Eli Lilly Australia Pty Limited of such material so that Alphapharm Pty Limited would be able to decide whether to commence a proceeding in the Court against Eli Lilly Australia Pty Limited alleging that the letter was misleading or deceptive in contravention of s 52 of the Trade Practices Act 1974 (Cth).
42 In his reasons for judgment Lindgren J made certain observations concerning Order 15A rule 6 as follows:
'1. Paragraphs 6 (a) and 6 (c) pose an objective test, the opening words "there is" in each paragraph signifying "there exists"; but the "insufficiency test" of para 6 (b) has both subjective and objective aspects.
2. Although I need not explore the subjective aspect fully, it seems clear that if the evidence went so far as to show that a particular applicant was already able to decide to commence a proceeding by, for example, showing that the applicant had in fact decided to do so, para 6 (b) would not be satisfied even though the information available did not satisfy the objective aspect of the insufficiency test referred to below.
3. The fact that a particular applicant genuinely feels unable, because of a lack of information, to decide to commence a proceeding does not, without more, satisfy para 6 (b); the objective aspect of the paragraph requires it to be shown as an objective fact that the applicant lacks "sufficient information to enable a decision to be made whether to commence a proceeding".
4. In my view, the objective aspect of para 6 (b) invokes a notion of "reasonable sufficiency", the question raised being whether it is reasonable that the applicant for an order be required to take its decision without having the information to become available from inspection of the document or documents of which discovery is sought.
5. If the insufficiency test is satisfied, a second question will arise, namely, whether the Court's discretion should be exercised in favour of the making of an order.
6. The questions posed by rule 6 and referred to above are to be answered in the context of an adversary system of forensic contest in which a proposed respondent is ordinarily entitled to withhold its evidence, certainly prior to the commencement of proceedings.
7. The questions are also to be answered in the light of the nature of the "cause of action" contemplated and the range of information potentially available in respect of a cause of action of that kind.
8. Contrary to a submission of Eli Lilly, in my opinion rule 6 is not necessarily rendered unavailable by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief. This is made clear by the reference in para (a) to the existence of "reasonable cause to believe that the applicant has ... the right to obtain relief ..." (emphasis supplied). It would impose an artificial constraint on rule 6, not supported by its terms or purpose, to exclude, a priori, all cases in which the insufficiency of the information possessed by the applicant to enable a decision to be made whether to litigate is due to a matter of "defence" which would defeat the prima facie case.
9. Rule 6 does not provide a means by which an applicant will be enabled to have available to it every document which would assist it in deciding whether to litigate. If that were the intention, paras (a) and (c) would stand alone and the additional condition set out in para (b) would not be necessary.
10. Paragraph 6 (b) contemplates that after making all reasonable inquiries, the applicant has come up against a problem, namely, that it is lacking a piece of information or pieces of information reasonably necessary to enable it to decide whether to commence a proceeding.'
43 As I understood Telstra's submission, it contended that production of a document could be required if it showed that a decision had in fact been made by it to commence a proceeding against the Minister or the Commonwealth to obtain relief in the Court. It asserted that production could not be required of documents recording or referring to consideration by Telstra as to whether it should commence a legal challenge or legal proceedings, but it acknowledged that documents recording or referring to its ability to decide whether to commence such a challenge or proceedings would properly be amenable to a Notice to Produce calling for their production.
44 It seems to me that an assertion that a subpoena and/or a notice to produce should be set aside if it calls for the production of documents which do not answer the description of being 'relevant', involves a misconception as to what the proper function of a subpoena and/or notice to produce is.
45 Relevance may well be a yardstick by which the admissibility into evidence of documents, that may have been produced under a subpoena or in response to a notice to produce, is to be decided (see ss 55-58 of the Evidence Act 1995 (Cth)). Furthermore, it may bear upon whether access to documents that have been produced to the Court in response to a subpoena or under a notice to produce should be afforded to a party seeking such access. However, such considerations are not determinative of whether a subpoena or notice to produce or part thereof should be set aside.
46 As Moffitt P, with whose judgment Hutley and Glass JJA agreed, said in Waind v Hill and National Employers' Mutual General Association Ltd. (1978) 1 NSWLR 376 ('Waind's case') at 381 there are three steps involved in dealing with subpoenas and documents that may be produced thereunder. At p381 Moffitt P said:
'As Jordan C.J. pointed out in Small's case [The Commissioner for Railways v Small (1938) 38 SR (NSW) 564] and, as appears in Burchard's case [Burchard v Macfarlane [1891] 2 QB 241] there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.'
47 Once documents have been produced to the court, any objections to their production having been rejected, the documents are in the control of the court. At this stage the person producing the documents may state that he objects to them being handed to a party seeking access to them for inspection. Documents should not go beyond the judge against the objection of the owner, unless there is valid reason to do so. Subject to matters such as confidentiality, it is for the judge, as part of the second step, to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event the judge will permit inspection by one or both parties at an appropriate time. The question of their admissibility without more, in accordance with the rules of evidence, does not then arise (per Moffitt P in Waind's case at 382 - 385 cf per Sackville J in Seven Network Limited v News Limited (No 11) [2006] FCA 174 at [6]).
48 The ultimate question of whether any documents are ruled to be relevant and/or admissible is left to the third stage of receiving evidence. As part of the second step inspection may be allowed, notwithstanding that a given document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it or use it in cross-examination (per Moffitt P in Waind's case at 385).
49 If a person wishes to resist production to the court of documents under a subpoena or in response to a notice to produce, objection should be taken as part of what Moffitt P describes as 'the first step'. Available grounds for objection to production include:
(a) that the documents called for are the documents of title of the party burdened with production;
(b) that the documents are privileged from production on the ground of self-incrimination;
(c) that the documents are privileged from production on the ground of legal professional privilege;
(d) that the documents are required for some spurious purpose unconnected with the litigation;
(e) that the subpoena or notice to produce is oppressive in the sense that it is so wide as to impose an onerous task on the party burdened with production to collect and produce documents, many of which could have no apparent relevance to the litigation.
50 What may be oppressive in respect of a subpoena directed to a third party will not necessarily be oppressive if the subject of a notice to produce inter-partes.
51 If a subpoena is used for the purpose of discovery and calls upon the subpoenaed party to make a judgment as to which of his or her documents relate to issues between the parties it will be oppressive. A subpoena or a notice to produce addressed to a party will also be oppressive if it is so worded as to require the addressee to engage in such a discovery process (per Moffitt P in Waind's case at 381-2 and per Jordan CJ in Small's case at 574).
52 A subpoena or notice to produce will not necessarily be objectionable because it is labelled as a 'fishing exercise'. Because a party who issues a subpoena or notice to produce is unaware of the precise description of a particular document or whether a particular document or documents are in the possession of the party subpoenaed or subjected to the notice to produce, or even whether such a document or documents exist or is unaware of the contents of such a document or documents, does not mean that a subpoena or notice to produce will be taken to have been improperly issued and amenable to being set aside as part of the first step described by Moffitt P (see per Moffitt P in Waind's case at 378 and 382).
53 Where a subpoena or notice to produce is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced (per Jordan CJ in Small's case at 574).
54 In his illustration of a subpoena, the issue of which would be oppressive and render it amenable to being set aside, Moffitt P contemplated a requirement that the branch of a bank produce all cheques received by it in a particular year in order to find, if it existed, a cheque of the opponent in a false name (see Waind's case at 382).
55 In my opinion the documents, the production of which is sought under paragraphs 9 and 10 of the Minister's third Notice to Produce (Ex AM2), are defined with reasonable particularity such that the Notice to Produce is not oppressive. They have sufficient apparent relevance to the issues arising under Order 15A rule 6 of the Rules to allow the Notice to Produce to stand. In my opinion it would be an improper exercise of the Court's power to restrict the reach of paragraphs 9 and 10 in the Minister's third Notice to Produce to those documents which Telstra would be willing to produce were the Notice to Produce confined to the documents identified in paragraphs 9, 9A and 10 of Telstra's draft form of Notice to Produce. Neither paragraph 9 nor paragraph 10 of the Minister's third Notice to Produce (Ex AM2) should be set aside.
56 In relation to the documents sought under paragraphs 1 - 5 inclusive and 8 of the Minister's third Notice to Produce (Ex AM2) I am satisfied that the documents sought have been identified with reasonable particularity.
57 Given the terms of Mr Smith's affidavit sworn 2 August 2007, upon which Telstra intends to rely on the hearing of its Amended Application under Order 15A rule 6, I consider the documents identified in the said paragraphs to have sufficient apparent relevance to be amenable to a notice to produce at this stage. Senior counsel for Telstra was at pains to explain that much of what was contained in Mr Smith's affidavit was there simply to provide background and had only tangential relevance. This cri de coeur does not mean that the Minister may not challenge the factual background which is relevant to those issues which need to be addressed objectively and/or subjectively on the hearing of the Order 15A rule 6 application and to which Lindgren J made reference in Alphapharm.
58 As to the scope of the requirement imposed by the said paragraphs, it is appropriate to observe that the Minister's third Notice to Produce dated 22 August 2007 is significantly scaled down from the requirement sought to be imposed by the Minister's second Notice to Produce dated 17 August 2007. Plainly, the Minister has had regard to much of the material to which Mr Healy deposed in his affidavit sworn 20 August 2007 in narrowing down her requirement. In his affidavit sworn 20 August 2007 Mr Healy said, inter alia:
'2 I am informed by Paul Smith, Business Development Manager employed by Telstra, and believe that:
…
(b) having regard to the 12 categories of documents of which production is sought, in order to comply with the Notice, Telstra would be required to review a very large number of documents in Telstra's possession that refer or relate to the Broadband Connect Infrastructure Program (Program) to determine which of those documents fall within the terms of the Notice. The following facts are relevant:
(i) Mr Smith has in his email mailbox approximately 2,200 emails, 1 to 2 boxes of hard copy documents and 200 electronic documents all of which relate to the Program;
(ii) there were approximately 10 other Telstra employees who formed the core team responsible for developing Telstra's proposal in relation to the Program;
(iii) there were approximately 60 other Telstra employees who had input into Telstra's proposal (not including members of the Telstra Executive Team who are considered below);
(iv) The Telstra employees who had input into Telstra's proposal were located in offices in at least Sydney (4 buildings), Brisbane (2 buildings), Melbourne (3 buildings), Adelaide (1 building), Perth (1 building), Canberra (1 building) and Darwin (1 building); and
(v) a number of the Telstra employees who had input into Telstra's proposal no longer work for Telstra;
(c) in order to comply with category 1 of the Notice, Telstra would be required to review at least all documents in Telstra's possession held by:
(i) the 4 Telstra employees who attended the Industry Briefing;
(ii) the at least 13 additional Telstra employees who Mr Smith informed of the Industry Briefing;
(iii) any other Telstra employees who were informed of the Industry Briefing, including by any of the persons referred to in (i) and (ii) above,
that refer or relate to the Program from 27 September 2006 onwards to determine which documents record communications within Telstra "relating to" the Industry Briefing between Telstra and DCITA on 27 September 2006, or record "any decisions made by Telstra resulting from" that Briefing. This is necessary because:
● of the breadth of the phrase "relating to" in sub-paragraph (a) of category 1;
● category 1 is not limited to documents in the possession of certain persons within Telstra; and
● category 1 is not limited to any date range other than being "after" 27 September 2006;
(d) in order to comply with category 2 of the Notice, Telstra would be required to review all documents referring or relating to the Program which are in the possession of at least:
(i) Mr Smith;
(ii) the other Telstra employees who formed the core team responsible for developing Telstra's proposal in relation to the Program,
from at least 21 September 2006 (when the Guidelines in relation to the Program were released) until at least 18 June 2007 when Telstra received the letter dated 18 June 2007 from the Respondent advising Telstra that its bid had been unsuccessful for reasons including coverage; and
(e) in order to comply with category 8 of the Notice, Telstra would be required to review at least all documents in Telstra's possession held by:
(i) Mr Smith;
(ii) the at least 11 persons whom Mr Smith either immediately forwarded a copy of DCITA's letter of 18 June 2007 to, or discussed the letter with;
(iii) the 3 Telstra employees Mr Smith is aware received a copy (other than directly from him) of DCITA's letter of 18 June 2007;
(iv) any other Telstra employees who received a copy of, or were informed of the contents of, DCITA's letter of 18 June 2007, including by any of the persons referred to in (ii) and (iii) above,
for the period from 18 June 2007 onwards to determine whether a document records "a consideration" by Telstra of DCITA's letter of 18 June 2007.'
59 It may be observed that the Minister's third Notice to Produce (Ex AM2) has introduced time frames limiting the documents, the production of which has been sought, and also confining the documents sought to ones recording communications and consideration at the level of what Mr Healy described as 'core team' members and/or members of Telstra's 'Executive Team' and above.
60 Having regard to the narrowing both in terms of date and in terms of management level, I do not consider the requirements imposed upon Telstra by the Minister's third Notice to Produce dated 22 August 2007 (Ex AM2) to be oppressive.
61 In the circumstances, I would not be disposed to set aside any of paragraphs 1 - 5 or 8 - 10 of the Minister's third Notice to Produce. Accordingly, Telstra's Notice of Motion dated 20 August 2007 which was filed in Court on 21 August 2007 and subsequently amended on 22 August 2007 should be dismissed. Costs should be dealt with in the manner agreed between the parties, namely that the costs of the motion should be costs in the applicant's Order 15A rule 6 Amended Application filed 9 August 2007
62 I propose to direct that the documents required to be produced before the Court by the Minister's third Notice to Produce dated 22 August 2007 (Ex AM2) be produced before a Registrar of the Court at 9.30 am on 12 September 2007.