FEDERAL COURT OF AUSTRALIA

Standen v Feehan [2007] FCA 1761

DISCOVERY – proceeding for a civil penalty – respondent’s application to be accorded prosecutorial fairness – prosecutorial fairness does not apply to civil proceedings – application dismissed.

MICHAEL STANDEN v JUSTIN FEEHAN

SAD 74 OF 2006

LANDER J

14 NOVEMBER 2007

SYDNEY (VIDEOCONFERENCE TO ADELAIDE)

THE COURT ORDERS THAT:

1.                  The respondent’s application for production of documents for which legal professional privilege was claimed by the applicant be dismissed.

2.                  The respondent pay the applicant’s costs of and incidental to the respondent’s application for production of documents for which the legal professional privilege was claimed by the applicant.

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

REASONS FOR JUDGMENT

1                     The applicant has brought a proceeding against the respondent seeking orders under the Workplace Relations Act 1996 (Cth) and, in particular, the imposition of a penalty against the respondent.  In the course of the proceeding the applicant filed a list of documents in which he claimed legal professional privilege in respect of a class of documents.

2                     The respondent advised the Court that he wanted to challenge the claim for legal professional privilege.  I directed the applicant to identify with some particularity each of the documents in the class of documents for which legal professional privilege was claimed.  The applicant provided the respondent and the Court with a list setting out with some particularity the documents for which legal professional privilege was claimed.

3                     On the last occasion that the Court sat, the respondent sought production of a number of those documents on the ground that the applicant had a duty, akin to a prosecutorial duty in the criminal law, to provide the respondent with the documents for which legal professional privilege was claimed.  The respondent at that time accepted that the documents would be privileged and free from production, except for, as the respondent put it, that the applicant owed a prosecutorial duty to the respondent.

4                     At that time I advised Mr Ats, who appeared for the respondent, that there was authority against the proposition which he advanced.  I drew his attention to a decision of this Court in Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission [2007] FCAFC 147 and, in particular, [112] of that decision.  That decision was a decision of the Full Court of this Court of which I was a member.  In my reasons in that decision, I considered a submission which had been put to the primary judge and to the Full Court that, in a claim for a civil penalty, the applicant owed a prosecutorial duty.

5                     I agreed with Heerey J that there was no obligation resting upon the Australian Competition and Consumer Commission (ACCC) of the kind that rests upon a prosecutor in a criminal trial.  The proceedings were civil proceedings.  The principles of prosecutorial fairness do not apply in civil penalty proceedings: Adler v Australian Securities and Investment Commission (2003) 179 FLR 1 at [678] per Giles J (Mason P and Beazley JA agreeing); Australian Securities and Investment Commission v Rich (2005) 53 ACSR 320 at [358].  Whether the ACCC had an obligation to discover and produce these documents fell to be considered under the ordinary rules relating to discovery.  The other members of the Court agreed.

6                     I advised the respondent’s solicitor in this matter then, as I previously had advised the respondent’s counsel, that that decision and the decisions of the Court of Appeal in New South Wales meant that as a judge at first instance, I could not accede to an argument that the applicant in this case owed the respondent any duty of the kind that a prosecutor owes in the criminal law.

7                     When the matter was called on today for argument, Mr Griffin QC, who appeared for the respondent, accepted that I was bound by the decisions to which I have referred and that there was no authority contrary to those decisions.  He has asked me to rule on his client’s application for production.  I do so and the application is dismissed.

Associate:

Dated:         15 November 2007