FEDERAL COURT OF AUSTRALIA

Dunstan v Orr [2007] FCA 652

COLIN GEORGE DUNSTAN v ROBYN ORR, JOHN HIGHAM AND JOHN GROWDER

ACD 77 OF 1997

MANSFIELD J

4 MAY 2007

CANBERRA (BY VIDEO)

THE COURT ORDERS THAT:

1.                  Application for leave to amend application refused.

2.                  Application for leave to issue subpoenas to Richard Highfield and Geoffrey Seymour refused.

3.                  Application to inspect privileged documents of the respondents refused.

4.                  Leave to applicant to issue subpoenas to Barbara Benson and Erin Holland returnable at 10:15 am on 2 July 2007 for the purpose of giving oral evidence at the hearing.

5.                  Any proposed further evidence which applicant may seek leave to adduce at trial be filed and served by 31 May 2007.

6.                  Costs of today reserved.

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

REASONS FOR RULINGS

1                     In this matter, which is now listed for hearing on 2 July 2007, there are a number of interlocutory applications before me today.

2                     The first concerns the proposed amendment of the application by the addition of causes of action and by the addition of respondents.  I do not propose to grant leave to amend the application or to add causes of action or to add respondents.  In my view, insufficient ground has been shown to warrant the proposed amendment in any event.  An illustration is provided by the application to join Erin Holland in respect of some putative decision that she made.  But I was told this morning by Mr Dunstan that she never made a decision.  That is simply an illustration of the uncertainty with which I think the proposed amendment must struggle.  The form of the proposed amendment is quite unsatisfactory.  In any event, to allow the proposed amendment would involve an adjournment of the hearing.  Given the lengthy history of this matter, which I will not go into, it would be inappropriate to allow an amendment which would put the hearing at risk.  The joinder of new parties would necessarily do so.

3                     In addition, the application to join the Commonwealth so that a breach of contract claim could be pursued is quite a different claim from the Administrative Decisions (Judicial Review) Act 1976 (Cth) (the AD(JR) Act) claim now before the Court.  Mr Dunstan, if he is so advised, and as the respondents have indicated in their written submission, may bring such a claim independently of this action subject to the usual risks of doing so, and bearing in mind the lapse of time since that cause of action apparently accrued (if it exists).

4                     The second issue concerns the request of Mr Dunstan to have access to privileged documents.  The privileged documents are described in Schedules 2 and 3 of the list of documents filed by the respondents on 27 March 2007.  There is nothing in the material before me to indicate that the description of those documents is inaccurate.  On their face, they are clearly privileged.  The decision of O'Reilly v Commissioner of State Bank of Victoria, (1982) 44 ALR 27, does not provide any foundation to direct the discovery of privileged documents.  The discussion in that case to which my attention was drawn by Mr Dunstan concerned a discussion as to the extent to which legal professional privilege may have been abrogated by the operation of s 264 of the Income Tax Assessment Act 1936 (Cth), and a discussion as to the extent to which legal professional privilege applied in respect of non-curial proceedings.  Neither of those things is applicable here.

5                     Mr Dunstan also seeks leave to adduce further evidence.  He says that there is material which has become available as a result of further documents produced to him by the respondents.  I am not proposing to rule on that application at the minute, and will do so at the trial.  I direct that any proposed further evidence which Mr Dunstan may seek leave to adduce at the trial be filed and served by him by 31 May 2007.

6                     There is an issue about a particular privileged document (or a document said to be privileged), namely a memorandum from Mr Seymour of 30 July 1997, which the respondents say was accidentally given to Mr Dunstan.  I do not propose to determine whether, via the production of that document to Mr Dunstan at this point, there has been a waiver of the privilege.  There are principles to be applied in that assessment.  If Mr Dunstan seeks to adduce that document in evidence I will address the issue of waiver, and hence of its admissibility at the hearing.

7                     Finally, there is an issue as to Mr Dunstan's request for leave to issue subpoenas to four persons:  Erin Holland, Barbara Benson, Richard Highfield and Geoffrey Seymour.

8                     In the case of Highfield and Seymour, in my view insufficient reason has been shown for them to be the subject of a subpoena to give evidence in this proceeding, bearing in mind its nature, in particular in relation to Mr Seymour.  What has been suggested is that a document apparently in his possession or received by him was not discovered by him in a previous proceeding.  Whether that be the case or not, it is in any event an insufficient reason to permit the issue of a subpoena to him.  There was also no sufficient reason shown on the material why Highfield should be subpoenaed.

9                     That leaves two persons, Erin Holland and Barbara Benson who, on the material before me at present, were involved in the communications about the time of the making of the decisions, which are the subject of these proceedings under the AD(JR) Act.  I have very considerable doubt as to whether anything they could say as a matter of fact will inform usefully the outcome of these proceedings.  However, out of an abundance of precaution I am prepared to give Mr Dunstan leave to issue a subpoena directed to each of them to attend to give evidence at the hearing.  Counsel for the respondents has rightly pointed out something about which Dunstan has previously acknowledged sensitivity, that is the potential fear that certain witnesses might have about attending in Court.  It is not, in those circumstances, necessary for those witnesses, if they attend, to give other than a business address.  And of course there is the problem confronting Mr Dunstan of being able to serve those subpoenas upon those persons, and of providing them with appropriate conduct money.  I do not know whether he will be able to do that.  That is a matter for him.  If the respondents wish to make available those persons through solicitors to accept service of the proposed subpoena, they may do so, but it is not a matter about which I give directions.

10                  I give Mr Dunstan leave to issue subpoenas to Erin Holland and Barbara Benson, returnable at 10:15 am on 2 July 2007, for the purpose of giving oral evidence at the hearing.  I refuse the application to amend the application, including by adding new respondents and by adding a new cause of action.  I refuse the application to inspect privileged documents of

the respondents.  I refuse the application for leave to issue subpoenas to Highfield and Seymour.   The costs of today will be reserved. 

Associate:

Dated:         8 May 2007