Administration of Norfolk Island v Robert Ryan trading as Norfolk Island Data Services

[2007] NFSC 1

IN THE SUPREME COURT OF NORFOLK ISLAND

Administration of Norfolk Island v Robert Ryan trading as Norfolk Island Data Services  [2007] NFSC 1

ADMINISTRATION OF NORFOLK ISLAND v ROBERT RYAN TRADING AS NORFOLK ISLAND DATA SERVICES
SC 4 OF 2006

KIEFEL J
16 FEBRUARY 2006
BRISBANE

IN THE SUPREME COURT OF NORFOLK ISLAND
NORFOLK ISLAND DISTRICT REGISTRY	SC 4 OF 2006

BETWEEN:	ADMINISTRATION OF NORFOLK ISLAND Plaintiff
AND:	ROBERT RYAN TRADING AS NORFOLK ISLAND DATA SERVICES Defendant

JUDGE:	KIEFEL J
DATE OF ORDER:	16 FEBRUARY 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The plaintiff provide, by way of further discovery, a copy of the following two parts of the document entitled “Norfolk Telecom-Ten Year Strategic Telecommunications Plan, 2005/06 to 2014/15”:

The heading to Clause 1.2 together with the two sentences following the second last dot point, which contain reference to the “Reach Agreement”.

IN THE SUPREME COURT OF NORFOLK ISLAND
NORFOLK ISLAND DISTRICT REGISTRY	SC 4 OF 2006

BETWEEN:	ADMINISTRATION OF NORFOLK ISLAND Plaintiff
AND:	ROBERT RYAN TRADING AS NORFOLK ISLAND DATA SERVICES Defendant

JUDGE:	KIEFEL J
DATE:	16 FEBRUARY 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 14 February 2007 I made certain orders for further, limited, discovery on the defendant’s application.  The process undertaken with respect to three disputed documents (the Reach Global Services (‘Reach’) Carrier Agreement;  the Force 10 Limited Agreement;  and the PricewaterhouseCoopers Strategic Telecommunications Plan document) was for the Court to determine, in the first instance, whether the documents should be disclosed to the defendants or their legal representatives for the purpose of their application for discovery and, if so, upon what terms.  The documents were all claimed to be commercially sensitive and confidential.  Moreover it was submitted for the plaintiff that, apart from some concessions relating to particular provisions of the Reach Agreement, the documents had absolutely no connexion with the defendant’s case.  In the course of discussion descriptions of the document, sufficient for the defendant’s counsel to comment upon them, were provided and appropriate concessions were made by both parties.  Orders were made accordingly.  There remained only the question of the status of the PricewaterhouseCoopers Report to be considered.  The remaining documents, the subject of the application for discovery, turn upon a discrete issue as to legal professional privilege and that part of the application was adjourned over for hearing on 6 March 2007, in the event that the parties do not themselves resolve it.

2. During the course of the discussion the apparent lack of any connexion between the defendant’s pleaded case and the Report was gone into.  The Report is correctly described as a ten year strategy plan for the provision of telecommunications services on Norfolk Island and is, in large part, technical.  The Report is pleaded as relevant to the quantum of damage on the defendant’s counter-claim.  How this could be so is not however apparent from the pleading nor from the Report, as the defendant was advised. The possibility that the Report might be thought by the defendant to have a connexion with its allegation of the plaintiff’s improper exercise of power in amending its telecommunications legislation, which is pleaded generally, was discussed.  The defendant’s counsel at this point identified the only aspect of the document which was thought might advance his case.  It would do so if it contained a direct reference to the defendant or his business and plans, deliberately,  to adversely affect it.  It was ultimately accepted by the parties that discovery to the defendant be limited to any part of the document which directly refers to his business and any direct reference to the present carrier, Reach Global Services Limited, in the context of the agreement under which it operates.  There is no mention of the defendant in the document.  The only reference to the carrier which satisfies the description agreed upon will be the subject of an order.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:       16 February 2007

Solicitor for the Plaintiff:	Norfolk Island Legal Services Unit
Solicitor for the Defendant:	Hehir & Co
Date of Hearing:	14 February 2007
Date of Judgment:	16 February 2007