Case: Reading Entertainment Australia Pty Ltd v Birch Carroll &amp; Coyle Ltd [2002] FCAFC 109
Outcome: followed
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.