Case: Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341
Outcome: cited
essence, the submissions of the applicants are as follows: 1. Order 15 r 2(3) sets out the criteria by which the obligation to disclose might be tested. 2. Those criteria do not include documents leading to a train of inquiry. That was the test before the rules were amended in 1999. 3. Order 15 r 2 should be interpreted according to its terms; and the 'train of inquiry' test (as articulated in the leading case of The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 per Brett LJ at 63, note also Menzies J in Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341 at 345) has no place in that context. 4. General discovery is that which occurs under O 15 r 2. 5. Order 15 r 8 entitles a court to make an order wider than that apprehended under O 15 r 2, however only where an application is made under O 15 r 8. 6. In terms of the Federal Court Rules and Practice Note 14, the order made by the Court on 15 February 2006 was an order apprehended under O 15 r 2(3). The submissions of the respondents may be summarised as: 1. The order of 15 February 2006 was 'The applicants and the respondents make discovery by verified List of Documents and file and serve such List of documents on or before 4.00 pm on 29 March 2006'. 2. The order did not limit discovery to the categories of documents in O 15 r 2, O 15 r 2(3) or otherwise. 3. Order 15 r 2 continues to authorise orders for general discovery, and although the court would not ordinarily make an order for general discovery it may consider it appropriate to do so, in which case the traditional obligations to discovery any document relating to a matter in question in the proceeding continues to apply. 4. Pursuant to O 15 r 8 the court may make orders requiring discovery of a document or class of documents 'relating to a matter in question in the proceeding' that may be or may have been in the possession, custody or power of a party. 5. An order of the court that the parties give discovery, without any further limitation , is a general order or direction for discovery. To limit the ambit of discovery the order, by its terms, should limit the extent of the discovery to be made by a party. 6. As there was no limitation appearing in the orders/directions the direction was for general discovery and the train of inquiry test applies. 7. Alternatively, the court may order a document or class of documents be discovered by affidavit in terms of O 15 r 8. The current version of O 15 r 2 was introduced into the Rules by SR 295 of 1999 Schedule 1, and became effective 3 December 1999. On the same day Practice Note 14 was issued by the Chief Justice. This Practice Note states, inter alia , that: &#8226; the general position is that the Court will not order general discovery as a matter of course &#8226; the Court will mould any order for discovery to suit the facts of a particular case &#8226; in determining whether to order discovery the Court will have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely cost of the discovery and its likely benefit &#8226; to prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the documents required to be disclosed by O 15 r 2(3).