FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Australink Pty Ltd [2009] FCA 265

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUSTRALIALINK PTY LTD ACN 092 507 483, RACHEL LOUISE DARGIE and DESMOND JOHN O'KEEFE

QUD 406 of 2008

SPENDER J

11 MARCH 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  The Notice of Motion is dismissed.

2.                  The applicants on the Motion pay the respondent on the Motion’s costs of and incidental to the proceedings, to be taxed if not agreed.

REASONS FOR JUDGMENT

1                     I am presently concerned with a Notice of Motion filed on 12 February 2009.  The respondents move the Court for orders that:

1.         The applicant produce to the respondents the documents referred to in the Notice to Produce dated 5th January 2009.

            …

2                     The Notice to Produce required the applicant to produce, in accordance with O 15 r 10, “The consumer complaints received by the ACCC in relation to Australialink Pty Ltd mentioned and referred to in the affidavit sworn by Susan Margaret Carr on 10th December 2008.”

3                     On 10 December 2008, the applicant in the principal proceedings, in the context of an application for interlocutory orders, filed an affidavit by Susan Margaret Carr. 

4                     Paragraphs 4 and 6 of that affidavit are in these terms:

4.         Since 11 January 2006, the ACCC has received 60 complaints from consumers in relation to conduct of Australialink regarding its directory lising services.

…

6.         The consumer complaints received by the ACCC in relation to Australialink are, in summary:

6.1.      that they had received a document from Australialink titled Listing Advice Notice (LAN) and had understood from its appearance and contents that:

6.1.1.    it was a confirmation of an order they must have already placed, rather than an initial offer of directory listing services;

6.1.2.    they had previously had a listing in one of Australialink’s directories;

6.1.3.    it was related to another directory in which they already held a paid listing, for example the Yellow Pages; or

6.1.4.    they would not incur a fee for the listing;

            and had signed the document on that basis and returned it to Australialink; and

6.2.      that Australialink had pursued them for payment of a directory listing fee which they had not intended to incur;

or that the complainant had received a LAN, had not signed and returned it, but had contacted the ACCC in case the document was likely to mislead others.

5                     The submissions by the respondents in the principal proceedings, the applicants on the Motion, refer to the fact that in the Statement of Claim the ACCC alleges various breaches of the Trade Practices Act 1974 (Cth) (the TP Act) by the respondents in respect of the content of listing advice notices which are sent to potential customers. 

6                     The present Motion seeks production of certain documents pursuant to O 15 r 10 of the Federal Court Rules.  That rule provide:

10        Document referred to in pleading or affidavit

(1)        Where a pleading or affidavit filed by a party refers to a document, any other party may, by notice to produce served on him require him to produce the document for inspection.

(2)        Where a notice to produce a document is served on a party under subrule (1), he shall, within 4 days after that service, serve on the party requiring production a notice:

(a)        appointing a time within 7 days after service of the notice under this sub-rule when, and a place where, the document may be inspected;

(b)        claiming that the document is privileged from production and sufficiently stating the grounds of the privilege; or

(c)        stating that the document is not in his possession, custody or power and stating to the best of his knowledge information and belief where the document is and in whose possession, custody or power it is.

7                     At the commencement of these proceedings the ACCC applied for interlocutory relief and filed an affidavit of Ms Susan Carr to which I have referred.  The applicant also filed written submissions on 10 December 2008 in support of the application for interlocutory relief. 

8                     The submissions of the applicants on the Motion recite pars 4 and 6 of Ms Carr’s affidavit and refers to par 35 of the written submissions filed by the ACCC, which is in these terms:

Further, since 11 January 2006, the Applicant has received 60 complaints from members of the public regarding Australialink’s conduct, including that they had received a LAN, and understood from its appearance and contents that it was a confirmation of an order they had already placed (and not an initial offer to provide services) and on that basis they had signed the document and returned it to Australialink.

9                     There has been correspondence requesting copies of the “complaints”.  The net result of the correspondence is that the ACCC declines to provide the documentation sought. 

10                  There have been associated offers to supply redacted documents on terms as to costs. Those proposals, in my opinion, are irrelevant to the determination of the issues raised on the appeal. 

11                  The question in this case is whether the affidavit of Ms Carr refers to “documents”.  That is the short and central point of the claim for production. 

12                  In respect of the submission that Ms Carr’s affidavit refers to documents, entitling them to production of them, the applicants refer to observations by Heerey J in Australian Competition and Consumer Commission v Visy Industries [2006] FCA 136 at 33, where his Honour said:

In contrast to discovery under O 15 rr 1, 5 or 8, production under O 15 r 10 does not depend on any leave being given by the Court.  The reason is obvious enough.  When a document is directly relied on by an opposing party, basic procedural fairness would require that a party be able to inspect the document, if only to see whether it is what it is alleged to be.

13                  The applicants also refer to the observation of Moore J in King v GIO Australia Holdings Ltd [2001] FCA 1487 (King).  A very lengthy reference to his Honour’s judgment, referred to in the submissions on behalf of the applicants on the Motion, is worth repeating:

12        It can be seen from O 15 r 10(1) that a notice may be served under that rule creating an obligation to respond when, relevantly, "a pleading … refers to a document" .  In relation to categories 1, 2, 5, 6, 7 and 8 there is an issue concerning whether the pleading "refers" to a document. 

13        There appears to be limited authority on this question.  In Smith v Harris (1883) 48 LT 869 the pleadings spoke of "invoices, letters, bill heads, and brands on casks".  A notice was served seeking the production of those documents.  The application was resisted by the plaintiff on the basis that the rule operated only on documents which were identified in the pleadings or particularly described.  Chitty J rejected this submission (as it related to the invoices, letters and bill heads) and concluded:

“It is said, that that is only a general reference to documents, but, in my opinion, that is both a general reference and also a special reference to each and every bill head and each and every letter; because the plaintiff, instead of setting out each document separately, refers to them compendiously, but that is no reason why inspection should not be allowed.”

14        A little over a century later a similar issue arose in Dubai Bank Limited v Galadari & Ors (No 2) [1990] 2 All ER 738.  The proceedings involved an allegation of fraud and the diversion of funds into the assets of several defendants.  One of the assets was a property in London.  An affidavit was sworn in the proceedings dealing with the acquisition of the property for the benefit of a trust.  A notice was served seeking production of documents purportedly referred to in the affidavit.  One issue in the proceedings was whether the affidavit had referred to documents. 

15        The Court of Appeal first addressed the purpose of the rule permitting the service of a notice.  Their Lordships said:

“Rules of court substantially corresponding with Ord 24, r 10 and the rules ancillary to it have been in force for over 100 years.  Lindley LJ in Quilter v Heatly (1883) 23 Ch D 42 at 50 drew a distinction between these rules and the general rules as to the discovery of documents.  He said:

‘These rules were evidently intended to give the opposite party the same advantage as if the documents referred to had been fully set out in the pleadings.’

While this statement explains the general purposes of the rules, it does not explain what test is to be applied in determining whether or not an assertion in a pleading or affidavit involves a ‘reference to [a] document’ within the meaning of Ord 24, r 10.  Though the rule has existed for such a long time, there appears to be remarkably little authority on the point.”

The Court of Appeal referred to the judgment of Chitty J in Smith v Harris (supra) and then identified the problem they confronted in the following terms:

“The problem arises in applying [the approach of Lindley J] in a case where, though the assertion made in the affidavit or pleading does not specifically mention a document or class of documents, it gives the reader strong grounds, perhaps even sure grounds, for supposing that a document must exist.”

Their Lordships rejected a submission that the rule was satisfied by reference by inference and said:

“We revert to the example of the assertion ‘Blackacre was conveyed by A to B’.  We cannot accept the broad submission by counsel for the plaintiff summarised above.  It seems to us to involve reading the phrase ‘reference is made to any document’ as including reference by inference.  This we do not regard as the natural and ordinary meaning of the phrase.  To our minds, the phrase imports the making of a direct allusion’ to a document or documents.”

The Court rejected an approach that would involve inference and conjecture. 

16        Their Lordships referred to a judgment of Lawton LJ in Marubeni Corp v Alafouzos [1986] CA Transcript 996.  In that matter an affidavit had referred to the plaintiff “obtain(ing) outside Japanese legal advice” and counsel for the plaintiff had conceded that the advice was almost certainly contained in a document.  However Lawton LJ held that there had been no reference to a document in the affidavit.  Their Lordships said:

“In our judgment, a mere opinion that on the balance of probabilities, a transaction referred to in a pleading or affidavit must have been effected by a document, does not give the court jurisdiction to make an order under Ord 24, r 10, unless the pleading or affidavit makes direct allusion to the document or class of documents in question.”

17        It is necessary to return to the facts of this case.  Having regard to the preceding authorities, it does not appear that the rule is intended simply to enable a party to inspect a document which has, in terms, been incorporated by reference into a pleading or affidavit.  That is, it is not restricted to situations where the pleader or deponent refers to the contents of a document on the footing that the text of the document is to be treated as incorporated in the pleading or affidavit.  Nonetheless the reference cannot simply be implied. I see no reason to depart from what appears to be a comparatively settled approach adopted in the English courts concerning a rule comparable to O 15 r 10 of the Federal Court Rules.

14                  The short submission by the applicants on the Motion in reliance on those observations is that: 

Ms Carr has referred to “has  received 60 complaints from consumers” (emphasis added).

15                  The submission for the applicants on the motion is that the use of the word “complaints” in par 4 is clearly a descriptive word which refers to documents received by the applicant.  It is no different to letters of complaint.  Irrespective of whether the documents are admissible or will be relied upon at trial, having been referred to in an affidavit, they should be produced.

16                  The submissions further state, at [15]: 

… There is no attempt in the affidavit of Ms Carr to suggest the ‘complaints’ are oral and certainly if Ms Carr had intended to give evidence of what others in the ACCC had told her they had been informed by consumers, the paragraph would be inadmissible or drawn in an entirely different way.  Assuming there is an ACCC document which summarises the nature of the complaints received it should also be produced.

17                  The ACCC opposes the motion on two grounds.  The first is that the purported notice is not a valid Notice to Produce, as the affidavit of Susan Carr dated 10 December 2008 does not “refer” to any document as required by O 15 r 10 of the Federal Court Rules.  The second basis in the submissions of the ACCC on which the ACCC opposes the Motion seeking production of documents is that, in the alternative, if, contrary to the applicant’s submissions, the Carr affidavit does “refer” to documents, as a matter of discretion the Court should, pursuant to its implied power of s 23 of the Federal Court of Australia Act 1976 (Cth) decline to order the applicant to produce the documents on the basis that the respondents do not seek the documents for any purpose intended by the Rules. 

18                  In my view, the purported notice is not a valid Notice to Produce because it is a  precondition to the operation of O 15 rule 10 that the affidavit of Ms Carr refers to a document.  In my judgment, the affidavit does not so refer.

19                  I refer in particular to the observations of Moore J in King at [18]: 

Applying that approach in the present case, it has the following consequence. In relation to category 1, there is, in my opinion, no reference to a document other than perhaps an implied reference.  It is, in terms, a reference to information in the form of forecasts and budgets of future revenues, expenditures and profits.  One would suppose that it is, in the context of the pleadings, almost certainly the case that such information would have been contained in documents provided by GIO to the second respondent.  However the pleading does not, in my opinion, involve a reference to a document in the way the authorities contemplate.  The same can be said of category 2.  Categories 5, 6, 7 and 8 are slightly different.  In each instance there is a description of a process involving action by either PricewaterhouseCoopers Securities Pty Ltd, PricewaterhouseCoopers Actuarial Services Pty Ltd or the second respondent itself.  Again one can assume that the process involved the use of documents and, indeed, so much is seemingly conceded in correspondence between the solicitors for the applicant and second respondent.  However the pre-condition to the operation of O 15 r 10 is that the pleading itself referred to a document.  It does not in any of these instances. 

20                  The observations by Moore J in King from [12] to [17], set out above, make it plain that there has to be a direct allusion to a document or documents.  It is insufficient to refer to a transaction or information, even though it appears almost certain that the transaction must have been effected by, or the information contained in, a document.

21                  The word “complaints” can easily comprehend both oral or written complaints.  The word “complaints” thus cannot be said to be a reference to a document, even though there may be strong grounds for thinking that some or other of the complaints would have been in writing. 

22                  I reject the submission on behalf of the applicants on the Motion that the word “complaints” is no different to “letters of complaint”.  The difference is crucial, and, in my opinion, important.  The example of the legal advice referred to in King at [16] is similar to the use of the word “complaints” by Ms Carr in her affidavit.  That use is similar to the terms “forecasts or budgets of future revenues, expenditures and profits prepared by management”, and “the opinions and judgment of management of GIO”, each of which Moore J in King held not to refer to documents.

23                  For these reasons, the Carr affidavit does not refer to documents, and O 15 r 10 is not engaged.  If, contrary to that finding, the affidavit did refer to documents, I see no basis in the terms of the Rules, or on any discretionary basis as argued on behalf of the ACCC, why the Court should: 

… decline to order the Applicant to produce the documents on the basis that the Respondents do not seek the documents for any purpose intended by the Rules.

24                  The fact that the affidavit was filed, no doubt in the context of a pending application for interlocutory relief, in my opinion does not mean that if the documents come within the terms of O 15 r 10, a basis exists on which a party, the subject of a Notice to Produce, can decline to produce them.  As to any concerns about public interest immunity or privacy complaints, power exists pursuant to O 15 r 10(2) to take those objections to production.

25                  For these reasons, I decline to make any order on the Motion.

26                  I dismiss the Motion, and order that the respondent on the Motion have its costs of and incidental to it, to be taxed if not agreed.  The provisions of the Rules as to when that taxation can occur, apply.

Associate:

Dated:         26 March 2009