FEDERAL COURT OF AUSTRALIA

Bucyrus (Australia) Pty Ltd v ANI Mining Services Ltd [1999] FCA 1193

ANTON PILLER ORDERS - application for leave to appeal - applicant’s rights of access to material seized under Anton Piller order governed by the terms of the order - no ground for implying in order a right in applicant to access to material by way of pre-pleading discovery

Federal Court of Australia Act 1976 (Cth), s 23

BUCYRUS (AUSTRALIA) PTY LTD (ACN 000 819 232) & BUCYRUS INTERNATIONAL INC v ANI MINING SERVICES LIMITED (ACN 008 445 725) & AUSTRALIAN NATIONAL INDUSTRIES LTD (ACN 000 066 071)

Q 33 OF 1999

SPENDER, DRUMMOND AND MANSFIELD JJ

25 AUGUST 1999

BRISBANE

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be refused.

2.                  Costs, including reserved costs, be paid by the applicants, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     SPENDER J:    I will ask Drummond J to give the first judgment.

2                     DRUMMOND J:         The applicants apply for leave to appeal from a decision of Dowsett J made on 16 February 1999 by which his Honour refused leave to the applicants to inspect documents obtained upon the execution of an Anton Piller order, for the purpose of use in the proceedings. 

3                     His Honour, on 9 December 1998, made the ex parte order described as an Anton Piller order authorising the taking of seven classes of document.  It is apparent from its terms that his Honour did not give the applicants the right to make any use of any material seized under the order for the purpose of the further prosecution of their action.  The only paragraph of the order which might be thought to touch on this question is par 8, and it reads:

“All material of which possession is taken pursuant to this order or brought into existence pursuant to this order is to be retained in the possession of the solicitors for the Applicants and not to be disclosed to any person until further order.”

4                     As I read par 8, it quite clearly embargoes the material seized.  It prevents anyone from making any use of that material until further order.  The earlier provisions of the order provide for the documents seized to be held in the possession of the solicitors for the applicant until further order and that, in my view, explains the reference in par 8 of the order to the documents being retained in the solicitors’ possession:  on the proper construction of the order, his Honour did not intend that those solicitors would be free to make any use of the documents, save to do such things as may be necessary to preserve them safely, until further order.  They cannot, for example, be disclosed even to counsel for the applicants or to any representative of the applicants on whom the solicitors may need to rely for instructions with respect to the documents seized.

5                     When the matter came back before the Court after execution of the Anton Piller order, a request was made on behalf of the applicants for access to the seized material for the purpose of further prosecuting their claim.  That request was refused.  But as a result of a suggestion from the learned primary judge, the applicants brought a motion before the Court, heard on 16 February 1999, by which the applicants repeated a contention earlier made that the order, being an Anton Piller order, necessarily entitled them not only to seize the material in question for the purpose of preserving it for use in the action, but also to pre-pleading discovery of that material.  The motion also, as an alternative, sought an order for pre-pleading discovery.

6                     His Honour took the view that the order of 9 December 1998 did not entitle the applicants to the extended access to the seized material which they claimed to have as of right.  As to the second part of the motion, his Honour rejected the claims to pre-pleading discovery of all the seized documents then made by the applicants.  What his Honour did was order that the applicants have pre-pleading access to two categories of documents which the respondents did not object to being made available to the applicants at that stage.  In addition, his Honour considered it appropriate that the applicants should have access to a third of the seven categories of documents sought by the applicants.

7                     It is said that his Honour erred as a matter of principle, both in his approach to the Anton Piller order and his approach to pre-trial discovery.  So far as the former is concerned, it is said that his Honour erroneously took the view that an Anton Piller order was limited to achieving preservation of material and did not also extend to entitling the applicant obtaining such an order to access to the seized material for the purpose of the prosecution of its case, for example, by way of pre-pleading discovery.  It was submitted that, in order to give proper effect to the objects of an Anton Piller order, the applicant must have, by necessary implication in such an order, the right of access to the documents seized for the purpose of pre-pleading discovery, if that right is not expressly given by the order.

8                     The power of this Court to make orders described as Anton Piller orders comes from s 23 the Federal Court of Australia Act 1976 (Cth).  The right of the applicant to access to seized material therefore must always be governed by the terms of the order made.  The order made on 9 December 1998 did not extend to the applicants the access they claim.  There is no need to imply such a right in this ex parte order to make it effective:  in terms it provided for seizure and preservation of the documents in question and stood over for later consideration, on notice, the question of access to those documents.

9                     So far as the contention that the learned primary judge erred in his approach to the application for pre-pleading discovery is concerned, it is said that the error is contained in his Honour’s acceptance of an indication from the respondents that they, in effect, did not require full particularisation of the applicants’ statement of claim.  But that seems to me to misunderstand or at least mis-present the approach taken by the learned primary judge.

10                  It is clear that in the view he took in giving limited relief by way of pre-pleading discovery, his Honour did not confine himself to evaluating what could be pleaded by the applicants, having regard to the indication by the respondents as to their attitude of acceptance of what might be thought otherwise to be deficiencies in the pleading.  It is apparent, having regard to the fact that his Honour made an order for early disclosure of the third category of documents to which I have referred, that his Honour approached the matter by evaluating what in his view he considered to be necessary to enable the applicants fairly to plead at that stage.  The case here seems to me to come down to one in which Dowsett J, as the docket judge with responsibility for the control of this litigation to trial, took a particular view of what was necessary by way of pre-pleading discovery to ensure that the action would proceed properly and expeditiously.  He made no error of principle in reaching this view.

11                  This is an application for leave to appeal procedural interlocutory orders.  One of those orders has now ensured the preservation of the documents sought by the applicants; the other, moreover, in relation to pre-pleading discovery does not finally dispose of the motion made in that respect by the applicants, but has been expressly stood over by his Honour so that it can be brought back on for further consideration, if difficulties arise.  This case is thus very clearly one in which the well known strictures against encouraging interlocutory appeals are fully applicable.  For these reasons, I would refuse the application for leave to appeal. 

12                  SPENDER J:   I agree that leave to appeal should be refused for the reasons given by Drummond J.  The decision, after all, is an interlocutory decision on a point of practice, and one which, in my opinion, does not affect substantive rights.  The decision by his Honour in the control of the proceedings was well within the power of a docket judge whose concern is the fair and efficient disposition of the cases on his docket.  In my opinion, no error of any kind has been shown in the approach which his Honour adopted.

13                  MANSFIELD J:   I also agree and would refuse to grant leave to appeal from the decisions referred to.  I agree with the reasons expressed by other members of the Court.  In addition, it seems to me that the applicants for leave have failed to demonstrate that the orders made by his Honour would work substantial injustice or that, if leave is refused, there would be substantial injustice to the applicants in any event.

14                  SPENDER J:   The application for leave is refused, with costs to be taxed if not agreed.  Lest there be any doubt about it, the costs include reserved costs.

Associate:

Dated:              25 August 1999