FEDERAL COURT OF AUSTRALIA

Financial Management Professionals Group Pty Ltd v Gray

[2005] FCA 1077

Federal Court Rules O 15 r 7A, O 15 r 14

Director of Public Prosecutions Act 1983 (Cth) s 9

FINANCIAL MANAGEMENT PROFESSIONALS GROUP PTY LTD  v ANDREW GRAY

NO VID 47 OF 2005

HEEREY J

29 JULY 2005

MELBOURNE

THE COURT ORDERS THAT:

1.                  The applicant’s motion filed on 15 July of 2005 is dismissed.

2.                  The applicant’s costs of the motion filed on 15 July 2005 to be the applicant’s costs in the cause.

3.                  There be an order in terms of the respondent’s motion filed 7 June 2005, amended to include:

“(6) Any document evidencing payment of the amounts referred to in par 13 of the statement of claim.”

4.                  The applicant pay the respondent’s costs of the respondent’s motion filed on 7 June 2005 on an indemnity basis.

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

REASONS FOR JUDGMENT

1                     The Court has before it the applicant's notice of motion under O 15 r 14, filed on 15 July 2005, seeking an order that the Court exercise its discretion to inspect a document referred to in the respondent’s supplementary list of documents.  That document is a statement dated 6 June 2000 made by the respondent in the matter of the Police v Petroulias.   It was agreed that although the motion only sought that I inspect the document, as a matter of practicality I should proceed to deal with the objections to inspection.  These are primarily made on behalf of the Australian Federal Police (AFP), which has been given leave to intervene on this issue. 

2                     The grounds on which counsel for the AFP rely are public interest immunity and legal professional privilege.  Affidavits filed on behalf of the AFP include the statement that police needed to obtain advice from the office of the Director of Public Prosecutions (DPP) as to whether it would wish to lead evidence from the respondent in the prosecution of Mr Petroulias and whether it would be prepared to give an undertaking to the respondent under s 9 of the Director of Public Prosecutions Act 1983 (Cth).  Further, it is deposed that the police took the statement from the respondent for the purpose of submitting it to the DPP in order to obtain that advice, that this was either the sole purpose of the police obtaining the statement, or at least the dominant purpose, and the respondent provided the statement on that basis. 

3                     Counsel for the applicant, quite properly in my view, accepts that he cannot go behind the statement which seems to clearly raise legal professional privilege.  Accordingly, it is unnecessary for me to embark on the issue of public interest immunity.  I think the only order I need make therefore is that the applicant’s motion filed on 15 July of 2005 be dismissed.  Since the affidavits relied on by the AFP were only produced this morning I shall not make an order of costs in their favour.  The applicant’s costs of the motion will be the applicant's costs in the cause

4                     As to the respondent’s motion for supplementary discovery under O 15 r 7A filed 7 June 2005 there does not seem to be any rational basis to oppose it and no opposition was ordered today.  There will be an order in terms of the motion, amended to include:

“(6) Any document evidencing payment of the amounts referred to in par 13 of the statement of claim.”

5                     I will order that the applicant pay the respondent’s costs of the respondent’s motion on an indemnity basis.

Associate:

Dated:              29 July 2005