FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia (No 4) [2012] FCA 1142

THE COURT ORDERS THAT:

1.    The motion of 6 May 2011 filed by the applicant be otherwise dismissed.

2.    The applicant be granted leave to file any amended interlocutory application relating to the application of 22 August 2012 no later than 30 November 2012.

3.    The amended interlocutory application be listed for directions on 14 December 2012.

4.    The applicant pay the respondents’ costs of today.

5.    The parties’ costs of the motion of 6 May otherwise be their respective costs in the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    On 6 May 2011, the applicant filed a notice of motion seeking orders that the respondents give discovery of documents in categories referred to in the motion, by reference to a document dated 17 March 2011. By agreement, the hearing of the motion was adjourned, and discussions were entered into by the parties that resulted in the making of orders on 31 May 2011. The applicant expressly reserved his position in relation to the claim for discovery in the notice of motion, in so far as that discovery went beyond the terms of the orders that were made on 31 May 2011.

2    Following those orders, lists of documents were filed by both respondents. The preparation and serving of those lists has taken some considerable time. The documents discovered by reason of those lists are extensive. The applicant has engaged in the task of inspecting the documents. There has been no complaint about dilatoriness in that regard. However, the task of inspection is not yet complete.

3    Counsel for the applicant has informed the Court that it is expected that the task of inspecting the documents discovered pursuant to the orders made on 31 May 2011 should be completed by the end of October. In the meantime, the respondents have sought the disposition of the motion of 6 May 2011, in so far as it was not disposed of by the orders of 31 May 2011. I directed that the motion be listed for hearing today, together with any other application for further discovery sought by the applicant.

4    When the motion of 6 May 2011 was called on for hearing this morning, counsel for the applicant sought an adjournment. The basis for the adjournment was not entirely clear, although it was apparent that the applicant was not in a position to have the motion dealt with, notwithstanding that I indicated in early August that I would list it for hearing today. Counsel advanced the proposition that there was some understanding – he did not put it as high as an agreement – that the reason for the standing over of the motion was to enable inspection of the documents to be discovered pursuant to the orders of 31 May 2011, and that when that discovery was complete the applicant would be in a position to indicate whether he wished to press for the balance of the categories to be the subject of discovery.

5    That process, of course, could not have been undertaken had the motion been heard in 2011. The applicant would either have persuaded me that discovery should be given by reference to the categories, or he would not have persuaded me. The orders that were made on 31 May 2011 were made by reference to issues in the proceeding as thrown up by the statement of claim in its current iteration.

6    I indicated, after hearing considerable argument, that I was not disposed to adjourn the hearing of the motion of 6 May 2011. Counsel for the applicant then indicated, in general terms, that he pressed for discovery of documents in the categories of the document of 17 March 2011. I am not persuaded that justice or any other consideration requires that there be an order for discovery of documents by reference to the categories in question at this stage in the proceeding.

7    It is by no means clear that there would be any documents that would be discoverable beyond the material discoverable under the orders of 6 May 2011. Whether there has in fact been compliance with the orders of 31 May 2011 is, of course, a different matter and is not a question that is before me today. The only question, assuming I refuse an adjournment of the hearing of the notice of motion of 6 May 2011, is whether I am persuaded that discovery should be ordered in terms of the categories specified in the document of 17 March 2011.

8    I am not persuaded that it is in the interests of justice or otherwise that discovery by reference to categories be given at this stage. I therefore propose to order that the notice of motion of 6 May 2011 be otherwise dismissed. In the meantime, the applicant has filed a further interlocutory application in relation to outstanding questions of discovery and further discovery. I understand from what has been said by counsel for the applicant that that is not necessarily an exhaustive statement of the position of the applicant.

9    The appropriate course is to permit the applicant to complete his inspection of the discovery that has been given. Directions can then be given for any further application to the Court to be made, either for further discovery in the light of what has been thrown up by the inspection, or for appropriate orders dealing with complaints about failure to comply with the orders of 31 May 2011.

10    Whether that should be done by amendment to the present interlocutory application or by means of fresh application remains for the parties to debate. The appropriate course is to stand over the interlocutory application filed on 22 August 2012 for further directions on a day later in the year.

11    In the meantime, the applicant has sought leave to appeal from orders that I made some time ago upholding claims for public-interest immunity on the part of the Commonwealth. The application for leave is listed for hearing before a Full Court during November; Of course, one cannot necessarily predict the outcome of the application for leave, or of any appeal if leave were granted. At this stage, it would not be possible for me to deal with a lengthy argument about discovery during November. In the circumstances, an appropriate course would be to list the present interlocutory application for directions on a date in early December 2012.

12    I have raised with the parties the possibility of remitting the present dispute as to discovery to a referee for consideration. That may be a means of reaching a faster resolution than finding time for the Court to deal with the matter. The alternative would be to refer the discovery questions, when they are formulated, to mediation. Again, however, that is a matter that should await the outcome of the completion of inspection by the applicant, so that one can make an informed judgment as to the likely scope of the dispute concerning discovery, if there is one after inspection has been completed. I propose to invite the parties to make submissions as to the directions that I should give concerning the preparation of material for any further interlocutory hearing concerning discovery.

Associate:

Dated:    22 October 2012