Case: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Outcome: followed
The traditional test for discovery, it will be recalled, was expressed in part in terms of whether a document would lead to a " train of enquiry " which could advance a party's case or damage that of his opponent: Mulley &amp; Marney v Manifold [1959] HCA 23 ; (1959) 103 CLR 341. Menzies J there observed at 345: I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues--not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary. See also: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55. 47 The Federal Court Rules , however, were amended in 1999 with the intent of confining the ambit of documents to be discovered: Salim v Loh (No 2) [2005] FCA 1417. French J there summarised the position as follows: [3] The 1999 amendments to the Rules, which introduced the new O 15 r 2, manifested '... a quite new and restrictive policy in relation to the discovery to be allowed' in the Federal Court -- South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 per Finn J. The rule that the discovery obligation covered documents that did no more than relate in some way to a matter in issue or that might lead to a train of inquiry has been abolished. The categories required to be discovered under O 15 r 2(3) include documents that support or adversely affect another party's case or that adversely affect a party's own case. They do not extend to documents that might support or adversely affect a party's case. The search obligation is limited to 'reasonable search'. Similarly, in Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 Lindgren J observed: [10] The question arises: what are the principles which should guide the parties in identifying categories? They are the principles which guide the Court when ordering discovery. In ACCC v Advanced Medical Institute [[2005] FCA 366] , I attempted to explain (at [19] -- [21]) that rule amendments and Practice Note 14 (Discovery) of 1999 were intended to establish a r&eacute;gime under which discovery is more confined than it was under the former Peruvian Guano test (cf The Compagnie Financi&egrave;re et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55). Practice Note 14 para 3 states: 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 Order 15 rule 2(3). Consistent with the more confined extent of discovery which is required, the Federal Court Rules now confer an express power to limit discovery and to make orders " necessary to prevent unnecessary discovery ": O 15 r 3(2). 62 In consenting to an order requiring general discovery, it is not understood that the parties are merely consenting to an order requiring the discovery of only those documents as are contemplated by O 15 r 2(3): Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001 at [153] , [2006] FCA 1001 ; 155 FCR 1 at 22 3 per Collier J. It is understood that the parties are consenting to what was described by Beaumont J as an order in the " traditional form " requiring discovery of those documents which " may " -- not " must " -- either directly or indirectly enable a party to advance its own case or damage that of his adversary: Reading Entertainment Australia Pty Ltd v Birch Carroll &amp; Coyle Ltd [2002] FCAFC 109. Beaumont J there observed: [64] In their traditional form, rules of court required, under a general discovery order, that the party disclose any document in its possession, custody or control "relating to any matter in question" in the proceeding; that is to say, any document which may -- not which must -- either directly, or indirectly, enable the party requiring the discovery either to advance its own case, or to damage the case of its adversary, or which may fairly lead to a train of inquiry which may have either of those two consequences (see, eg Compagnie Financi&egrave;re et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 62 63). [65] The nature and extent of disclosure, in terms of the adjectival "relevance" of documents for the purposes of a general order for discovery in its traditional form is explained in Halsbury's Laws of England 4th ed, Vol 13 at [38] to the following effect: &#8226; So long as they are likely to throw light on the case, documents "relate to a matter in question", whether or not admissible in evidence. &#8226; A document may be "relevant" for discovery purposes by reason of its character (ie it is a document of a particular type); or by reason of its contents. &#8226; Discovery will not be ordered in respect of an allegation not made in the pleadings or particulars, nor will discovery be allowed to enable a party to "fish" for witnesses, or for a new case, ie to enable the party to frame a new case. &#8226; Each case must be considered according to the issues raised; but where there are numerous documents of slight relevance and it would be oppressive to produce them all, some limitations may be imposed. [66] The foregoing is also an accurate description of Australian practice and procedure (see, generally, Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 23 24). [67] Under a traditional general discovery order, the following methods are available to obtain further disclosure where a party seeks to show that "relevant" documents have been omitted from the list: (1) It may require verification of the list; (2) It may apply for a further and better list, whether verified or not, either in general terms, or limited to certain classes of documents. (The power to order a further and better list is parallel with, and may be combined with, the court's power, on application, to order the disclosure of particulars of specific documents.); (3) It may apply for an affidavit as to specific documents or classes of documents; (4) In certain special circumstances, it may apply for leave to interrogate as to particular documents (Halsbury, op. cit. at [48]). His Honour there further observed that: [70] ... where, extraordinarily, the Court judges that it is, in the particular circumstances, appropriate to order general discovery, in the absence of any special (ad hoc) restriction, the traditional (broad) obligation to discover any document relating to any matter in question in the proceeding will continue to apply. It is this " traditional (broad) obligation " which has been relied upon as a discretionary reason -- should it be a matter for discretion -- to confine the tasks to be pursued by the Applicants' solicitors in their review of the seized documents.