Village Building Co Limited v Airservices Australia

Consideration 10 Although the second respondent's notice of motion for discovery does not specifically invoke the provisions concerning preliminary discovery, it is apparent from the submissions made that the second respondent's motion has been made under the 'preliminary discovery' provisions of the Federal Court Rules. The relevant Order, O15A Rule 6, specifies the circumstances in which an applicant can obtain preliminary discovery of documents from a person against whom the applicant has, or may have, the right to obtain relief in the Court: Where: (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision; the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c). 11 One possible problem facing the second respondent is that the use of the phrase 'prospective respondent' in O15A Rule 6 contemplates that discovery under this rule can only be obtained prior to the institution of substantive proceedings. This point was made by Tamberlin J in Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 where (at 484) his Honour said "[a]fter proceedings have been commenced the rule ceases to apply. After commencement, of course, in the ordinary process of discovery, additional facts may come to light which would provide a basis for other relief and it would then be open to the plaintiffs to seek leave to amend the pleadings so as to claim such relief." (See also Hooper v Kirella Pty Ltd [1999] FCA 1584 at [37] per Wilcox, Sackville and Katz JJ). A similar sentiment was expressed by Burchett J in Survival and Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel "Alley Cat" (1992) 36 FCR 129, where, in considering the operation of O15A Rule 3 (which concerns circumstances where an applicant has made reasonable inquiries but is unable to ascertain the description of a person sufficiently in order to commence proceedings against that person) his Honour stated (at 136): Here the case is one in which the identity of the defendant was sufficiently known to enable a proceeding to be commenced. It is true that that is so only because the proceeding may be commenced against the owners of a vessel without identifying them. But the proceeding has been commenced and regularly commenced. In my opinion once that has occurred, the rule ceases to be applicable. (Emphasis added) 12 However contempt proceedings are atypical. Even though they should be brought in the proceedings out of which the contempt is said to have arisen: O 40 r 5, the application and charge alleging contempt is itself a separate proceeding. I noted some relevant cases in Grout v Gunnedah Shire Council (1995) 129 ALR 372 at 381: The applicant referred to a number of cases concerning proceedings alleging contempt of Court, the first of which was Viner v Australian Building Construction Employees and Builders' Labourers' Federation (1981) 38 ALR 550 at 553. Northrop J had to consider whether the legislative predecessor of s347, s197A of the Conciliation and Arbitration Act 1904 ("C & A Act"), limited the Federal Court's power to award costs. His Honour concluded that an application made by notice of motion alleging contempt of Court in relation to proceedings for the deregistration of an organisation brought under the C & A Act, was a separate proceeding taken under s31 of the Federal Court Act and thus s197A had no application. That conclusion has been affirmed by a Full Court in Cooke v Goodhew (1989) 91 ALR 447 at 458 per Sheppard J, 464 per Wilcox J and 474 per Gray J: see also Gregory v Phillip Morris Ltd (1987) 74 ALR 300. However Northrop J's conclusion in Viner, supra, turned on the special nature of contempt proceedings which are criminal in character and have historically been treated as proceedings separate from the proceedings which gave rise to the contempt. 13 In my view, the second respondent is not disentitled from seeking preliminary discovery simply because its notice of motion has been filed in the appeal proceedings. For reasons which will become apparent shortly, it is unnecessary to determine whether the expression "right to obtain relief" comprehends an application alleging contempt and seeking a penalty. 14 The principles to be applied in determining whether preliminary discovery should be ordered were recently considered by a Full Court in Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58, which quoted (at [43]), with approval, the following summary from the judgment of Hely J in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147, at [26]: '(a) the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the court, exercised in the particular circumstances of each case; (b) each of the elements prescribed in sub-paragraphs (a), (b) and (c) of the rule must be established. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves; (c) the test for determining whether the applicant has "reasonable cause to believe", as required by sub-paragraph (a), is an objective one. Further, the words "or may have" cannot be ignored. The applicant does not have to make out a prima facie case; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action; (e) whilst uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by sub-paragraph (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe; … (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a "fishing expedition". Indeed O 15A r 5 "expressly contemplates" what once might have been castigated as "fishing". As Burchett J commented in Paxus Services [Ltd v People Bank Pty Ltd (1990) 90 ALR 728, at 733], the rule is: "… designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent …"'. (Other citations omitted.) 15 It can be seen that whether a party has reasonable cause to believe that they have, or may have, a right to obtain relief is to be determined objectively. It does not require the applicant for discovery to establish a prima facie case. But this case is unusual. The litigation in contemplation does not involve the vindication of private rights. To the contrary. For reasons which follow, I believe I am able to assess whether the proceedings will succeed. I do so, not as an impermissible assessment of the strength of the applicant's case, but rather as an assessment of whether there is a case at all. It is necessary for me to do this in order to determine whether, objectively, the respondent has reasonable cause to believe it has or may have a right to obtain relief. I am satisfied that it does not because any contempt proceedings are doomed to fail. I have reached this conclusion after further consideration of the transcript of the appeal and notwithstanding the observations I made in my earlier judgment referred to at [5] above. 16 To explain this conclusion, it is necessary to set out some principles governing contempt proceedings and to analyse, in a little more detail, what was said by senior counsel for the appellant during the hearing on 29 October 2007. As noted earlier, contempt arising from an alleged breach of an undertaking will not be found unless the terms of the undertaking are clear and unambiguous. This issue was comparatively recently considered by a Full Court in Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110. 17 In Universal Music Australia the Court had to consider whether an order (said to have been breached in a way that involved a contempt) was so ambiguous that it was devoid of any legal meaning and incapable of giving rise to liability on a charge of contempt. The leading judgment was given by Branson J. Her Honour referred to the earlier Full Court judgment in Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117. Branson J noted that Microsoft v Marks involved an appeal from a dismissal of a contempt proceeding instituted by Microsoft alleging a breach by Mr Marks of an order of the Court. Her Honour said of that judgment (at [26] - [29]): … The leading judgment was that of Beaumont J, with whom Lehane J agreed, and Lindgren substantially agreed while making certain observations of his own. … The critical passage from his Honour's reasons for judgment for present purposes is the following passage: 'Yet it must follow, in my opinion, that to this extent order 1(a) should be treated as equivocal and its meaning as ambiguous. That being so, and since the question whether Microsoft had, in fact, consented was put in issue in the contempt proceedings, it must further follow that any attempt by Microsoft to move for contempt for alleged breach of such an order must have failed. In any event, this outcome probably follows from an application of the general observations made in Witham on the relevance of the criminal standard of proof; there is a doubt as to the meaning of order 1(a) in an important respect, and … that doubt is a reasonable one. … The above passage from the reasons for judgment of Beaumont J gives rise to questions. First, it is not clear precisely what his Honour intended to convey by describing order 1(a) as 'equivocal' and 'ambiguous'. Secondly, it is not clear whether his Honour was (a) intending to lay down a principle of law or (b) acknowledging a problem of proof. To describe a court order as 'equivocal' or 'ambiguous' is to assert (at least) one of two possible things; either that its intended meaning is unclear or that, although its intended meaning is clear, its application in particular circumstances is uncertain … Her Honour went on to say (at [36]): Having regard to the views expressed by the members of the High Court in [Australian Consolidated Press Ltd v Morgan(1965) 112 CLR 483], Beaumont J's description in Microsoft v Marks of order 1(a) as 'equivocal' and 'ambiguous' is, in my view, to be understood as a finding that on its proper construction, order 1(a) had an uncertain meaning such that proof that it had not been complied with would prove problematic. His Honour's reference to the question of whether Microsoft had consented having been put in issue by the alleged contemnor indicates that his Honour regarded order 1(a) as providing a possible foundation for a charge of contempt. If the order were not capable as a matter of law of founding a charge of contempt it would be immaterial whether the question of Microsoft's consent had been put in issue. I therefore conclude that relevantly the ratio decidendi of Microsoft v Marks is that an appeal from a dismissal of a charge of contempt will fail for want of proof if the order alleged to have been disobeyed is, on its proper construction, of uncertain application in the circumstances giving rise to the alleged disobedience. 18 What can be gleaned from this authority is that ambiguity or uncertainty in relation to either an order or undertaking can relate to the meaning, as a matter of construction, of the order or undertaking on the one hand, or the scope of its operation when properly construed, on the other. Her Honour appears to accept that an order or undertaking may be so uncertain, as a matter of construction, such that it is incapable of sustaining a finding of contempt, although that was not so of the order in that case. 19 In the present case, counsel for the appellant was asked, during the hearing of the appeal, a question about an undertaking his client had given Gyles J on 2 October 2007. The following is the undertaking given to Gyles J together with the orders his Honour made: Upon the appellant by its counsel giving the usual undertaking as to damages and undertaking that, pending the hearing of the appeal, the appellant will take no further steps to advance the rezoning of Tralee based on the current Australian Noise Exposure Forecast (ANEF):

1. Orders that the first respondent by itself, its servants and agents be restrained until 5.00 pm on Friday 2 November 2007 or further order from endorsing any new draft ANEF for Canberra International Airport.
2. Adjourns the motion for a stay to the commencement of the appeal.
3. Orders that costs are reserved.
4. Grants liberty to apply to all parties 20 It is necessary, at this stage, to set out a rather lengthy passage from the transcript of the appeal proceedings (when the hearing was concluding). The reference to "the order which is 863" is a reference to the order made by Gyles J which I have just set out. GRAHAM J: Mr Martin, you offer to continue your undertakings to the court that were set out in the order which is 863, you won't try and secure the rezoning of your land, or take any step in that direction? MR MARTIN: No, your Honour, that undertaking is continued. BRANSON J: But is that a matter under the control of your client? I thought you told me it wasn't. MR MARTIN: It's a matter taken up by Queanbeyan Council. BRANSON J: Your client's undertaking might be neither here nor there. MR MARTIN: Well, we're certainly prepared not to take any further steps as to what consultative process or what involvement is required for us in relation to that rezoning. I can't positively give your Honour an answer. BRANSON J: It seems to me that it might be an undertaking with no real substance. MR MARTIN: Well, the undertaking as to damages is certainly not, your Honour, and I suspect there are steps that we can take to advance the rezoning by way of agitating with the council that the rezoning should be progressed. It's not a matter which the council takes in a vacuum so to speak. We will consult with those that are going to be affected by the rezoning and keep them informed as to what the process is and no doubt some impetus can be given by those parties that will benefit from it, or are directly affected by it. The matter can be progressed or not progressed at the insistence of the land owners that are affected by that decision. MOORE J: Well, if that's all you want to say, Mr Martin, on this last point we might just ask Dr Griffiths what his instructions are and what submissions he wishes to make. DR GRIFFITHS: My instructions are, your Honour, that we don't wish to be heard on this matter. We see it primarily as a matter of concern, if it is of any concern, for the second respondents. So we don't wish to be heard. MOORE J: Ms McCallum. MS McCALLUM: Your Honours, I'm instructed to seek that the injunction be discharged. Your Honours probably won't want to make a decision about that this afternoon, but we would ask that if your Honours MOORE J: Well, I'm not sure that - I'm sorry to interrupt, but I'm not sure that that's right. I thought the order was that the injunction would operate until today, so it's not a question MS McCALLUM: I'm sorry, that's quite right, but I'm just saying your Honours might want to reserve for a BRANSON J: Until Friday of this week. MS McCALLUM: short period or at least withdraw to consider it. I have only just now been made aware of a letter which the council has sent to the second respondent which indicates that the process of considering the rezoning is continuing. May I tender that on the application to continue the injunction. Regrettably I only have two copies, but perhaps BRANSON J: While that is coming up, Ms McCallum, I wonder if I might ask Dr Griffiths something. Dr Griffiths, your client hasn't instructed you to be heard on this DR GRIFFITHS: Yes. BRANSON J: that it wishes to be heard on this, is that the same as saying that they don't propose to take the further steps until the appeal court brings down a judgment? Because if that is their position we might be wasting our time worrying about it? DR GRIFFITHS: That is my - I will seek confirmation - but that is my understanding of the position, your Honour. Yes, your Honour, my instructions are that my client doesn't propose to endorse - give its final endorsement to this, pending any decision - pending the decision by this Court. MOORE J: Is that sufficient - I'm sorry. MS McCALLUM: I do apologise, your Honour. MOORE J: Is that sufficient for your purposes, Mr Martin? MR MARTIN: Yes, that is sufficient, your Honour. MS McCALLUM: On that basis the injunction shouldn't be continued, it should be a matter between BRANSON J: Exactly, that's why we asked the question. MOORE J: Well, it will - unless someone wishes to have it varied - it will simply cease to have effect on Friday. MS McCALLUM: Thank you, your Honour. There's one further matter, I apologise for imposing further on the goodwill of the court, but very quickly. I didn't say anything about the proper approach to the notice of contention, but I don't submit that if the court were to be persuaded that there is no matter, that the court wouldn't then proceed to decide the substantive issues. There's some treatment of that issue in your Honour Justice Branson's decision in Merbank, but we don't put the proposition that the court should first consider the jurisdiction issue and determine that, and if just upholding it in our favour decide no other issue. An expedient course might be to consider all issues in the alternative. If the court pleases. BRANSON J: It has been my understanding of what you said, your client won't move to take any steps to endorse unless and until everyone is placed on notice. That is either there will be a judgment or if your client's do wish to move, they wouldn't move without giving notice to everybody. DR GRIFFITHS: Indeed, your Honour, that's an appropriate gloss perhaps on what I put, yes, your Honour. BRANSON J: All right, it's just that we've taken no formal undertaking but we need to know where you stand. Nothing will happen unless everybody gets plenty of notice first. DR GRIFFITHS: Is put on notice and then if our learned friends wish to move again for relief. MR MARTIN: Could I just inquire what sort of notice is contemplated in that? DR GRIFFITHS: Five working days, your Honour. More time than we had to digest the appeal books in this case, your Honour. MOORE J: Well, if there is nothing further we will reserve judgment and adjourn. (Emphasis added) 21 The response from senior counsel for the applicant, Mr Martin, at the beginning of this passage might, as a matter of first impression, be taken to be the proffering of an undertaking in the same terms as the undertaking recorded by Gyles J. There is, however, an immediate problem in proceeding on that basis. The undertaking given to Gyles J was to operate until the hearing of the appeal. It is, of course, inconceivable that at the hearing of the appeal an undertaking was being given which would have by then been spent. It may be accepted that immediately before the question from Graham J there had been a discussion about what should happen until judgment was given. However what was said by Mr Martin did not expressly advert to the period for which the undertaking was given. However, even assuming that what was said at that point in the transcript was intended to be a re-proffering of the undertaking for an extended period, the discussion which followed cast considerable doubt on whether the undertaking was accepted by the other parties. 22 Nor is it apparent that the putative undertaking was accepted by the Court. A superior court of record, such as the Federal Court, possesses the power to accept, or to decline to accept, an undertaking that is being proffered. The issue of a Court's acceptance of undertakings was considered by the High Court in Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission (1980-1981) 148 CLR 150. In that matter the trial judge accepted an undertaking given by one of the parties that went beyond the terms of an injunction that could be made under s 80 of the Trade Practices Act 1974 (Cth). The High Court ultimately determined that the parties could not confer power on the Federal Court to accept an undertaking where the effect of the undertaking was to restrain conduct which the Court has no power to restrain. In considering whether a court should accept an undertaken that is proffered to it, the High Court said (at 165 per Gibbs CJ, Stephen, Mason and Wilson JJ) that: In general the court must, in deciding whether it will accept from a defendant an undertaking to which the plaintiff takes no exception, be guided by the principles which apply to the making of a consent injunction, principles which we have already discussed. As in the case of a consent order, there is no reason for thinking that the court should as a matter of discretion refuse to accept an undertaking merely because it will cause damage to a third party who is a defendant, if it involves no infringement of that party's rights, and it is within power, capable of enforcement and in conformity with legal principle. 23 In my view, Branson J's comment "[b]ut is that a matter under the control of your client? I thought you told me it wasn't", which immediately followed Mr Martin's intimation that the undertaking might continue, demonstrates that it would have been apparent, at least in the mind of one member of the Full Court, that there existed real doubt as to whether the undertaking being discussed was capable of being accepted by the Court, given that, on one view at least, it operated on circumstances that were largely out of the appellant's control. This is reinforced by her Honour's further comments " [y]our client's undertaking might be neither here nor there" and "[i]t seems to me that it might be an undertaking with no real substance". 24 After Mr Martin referred to the undertaking, the focus of the discussion moved quickly from what the appellant might do pending judgment to what the first respondent in the appeal, Airservices Australia, might do pending judgment. It is to be recalled that the regime put in place by Gyles J was an injunction restraining Airservices Australia from endorsing a new ANEF (the injunction operating until 2 November 2007) together with the undertakings of the appellant. By the conclusion of the discussion in the passage quoted above, counsel for Airservices Australia had indicated that it would give notice to the parties if it proposed to take steps to endorse the ANEF. This intimation may, or may not, have been an undertaking. However, irrespective of how the statement might be characterised, it altered materially the structure of the regime determined by Gyles J on 2 October 2007. No longer was Airservices Australia restrained from endorsing a new ANEF, coupled with an undertaking from the appellant not to take further steps to advance the rezoning of Tralee based on the then existing ANEF. Airservices Australia could endorse a new ANEF as long as it gave notice. It is tolerably clear that this arrangement had in contemplation that there might be a further application for injunctive relief pending judgment by the Full Court if Airservices Australia gave the requisite notice. It was in contemplation that if such an application was made, it would raise for consideration what the parties could or could not do pending judgment of the Full Court. However it cannot be said, in my opinion, that a necessary element in that arrangement was that the appellant would take no steps to secure the rezoning of Tralee under the existing ANEF until judgment was given. Indeed, counsel for the second respondent, Canberra International, adverted to the fact that the process of considering the rezoning was continuing. 25 In my opinion, in any contempt proceedings the Court would have to reject the suggestion that, in these circumstances, the appellant gave an undertaking (of a character that, if breached, would found a finding of contempt) in the same terms as noted by Gyles J on 2 October 2007, or modified as to duration, which was accepted by the other parties and the Court. It is for this reason that I think that any contempt proceedings against the appellant are doomed to fail. In the result, a precondition to the making of an order for preliminary discovery has not been met and the application should be dismissed. 26 I conclude by referring to one further matter. There has been ongoing litigation between the parties to this appeal for some time and it can be reasonably assumed that it will continue unrelentingly. For my part, I cannot see what proceedings may be brought by either of them which would resolve, conclusively, the dispute (in the broadest sense) between them. It is more likely that there will be further litigation, which might be characterised as battles, while the war will continue unabated. I raised with the parties the question of whether there should be further mediation (there was unsuccessful mediation some years ago). Neither are opposed to an order for mediation, although in subsequent correspondence to my associate, the parties do not appear to be optimistic that mediation will resolve the underlying dispute between them. However, notwithstanding this lack of optimism, the subject of the broad dispute between the parties (concerning both their immediate commercial interests as well as the wider public interest in both the need for residential land in the area and the need for an airport capable of meeting future demands) is sufficiently important, in my opinion, to order mediation. I propose to do so. 27 The application for preliminary discovery is dismissed. I reserve the question of costs. I will address that matter when the mediation has been concluded. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 21August 2008 Counsel for the Appellant: B Salmon QC

Solicitor for the Appellant: JS O'Connor Harris & Co

Solicitor for the First Respondent: Minter Ellison

Solicitor for the Second Respondent: Mallesons Stephen Jaques

Date of Judgment: 21 August 2008