Case: Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415
Outcome: referred to
I had occasion to discuss the relationship between discovery by "categories of documents" and O 15 of the Rules in Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 and Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 ( Aveling ). In Aveling , I observed (at [10]) that the principles that should guide parties in arriving at descriptions of categories of documents for discovery are the very principles that guide the Court when ordering discovery. Those principles are found in O 15 r 2(3), (4), (5) and (6) of the Rules which provide: (3) ..., the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given: (a) documents on which the party relies; and (b) documents that adversely affect the party's own case; and (c) documents that adversely affect another party's case; and (d) documents that support another party's case. (4) However, a document is not required to be disclosed if the party giving discovery reasonably believes that the document is already in the possession, custody or control of the party to whom discovery is given. (5) For subrule (3), in making a reasonable search, a party may take into account: (a) the nature and complexity of the proceedings; and (b) the number of documents involved; and (c) the ease and cost of retrieving a document; and (d) the significance of any document likely to be found; and (e) any other relevant matter. (6) If the party does not search for a category or class of document, the party must include in the list of documents a statement of the category or class of document not searched for and the reason why. In Aveling , I said at [11]: It may be appropriate for parties to describe categories in terms which do not expressly incorporate the language of O 15 r 2(3), but that subrule should nonetheless govern the formulation of the categories. Alternatively, of course, the categories may be defined so as to incorporate expressly the terms of the subrule. Whatever approach is taken, it is important to understand that when, as happened in the present case, the Court orders discovery by categories to be notified by one party to another, the Court does not intend that the notifying party be at liberty to widen the discovery obligation beyond the four classes of documents referred to in O 15 r 2(3). 41 Any description of categories of documents to be discovered should be arrived at, whether by the Court or by the parties, in the light of the standard laid down in the rules set out above. It is not clear to me that the parties have approached the question in this way. The question for me on the present motion is whether the disputed categories satisfy the rules. It is often difficult for the Court to be certain that documents falling within a particular category description fall within the rules. 42 It would be permissible for a category to be identified as documents that satisfy both of two conditions: (1) a description of a class of document; and (2) subrules (3), (4) and (5) of rule 2 (the effect of which subrules could be set out in appropriate form). This approach would at least ensure that the documents sought did not exceed either the range of documents referred to in the rules, or the bounds of the category descriptions.