Case: Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428
Outcome: applied
In Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (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.