Authors Workshop v Bileru Pty Ltd

[1989] FCA 656

,--

OUDGMENT No. 65.6. %..$?a 'I :

NOT FOR DISTRIBUTION	..	I.	~
.	.

IN THE FEDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	i i

NG470 of 1989 -.

GENERAL DIVISION 1

BETWEEN:  AUTHORS WORKSHOP and ANOR

Applicants

AND: BILERU PTY LIMITED and

ANOR

Respondents

14 AUGUST 1989

REASONS FOR JUDGMENT

LOCKHART J.:

7 July this year certain ex parte orders were made in this proceeding including an order numbered 3 which was directly based upon the form of order in Norwich Pharmacal CO v Customs and Excise Commissioners, 1974 AC 133. On 14 July this year I gave judgment in relation to a notice of motion brought by the respondent to the proceedings and heard by the Court on 11 and 12 July last. I there dealt with an argument of counsel for the respondents that they should be immune from complying with order 3 on the basis of the risk of criminal proceedings being taken against the respondents if compliance

On

were to be ordered. After reviewing certain of the	authorities I said that I was not satisfied on the material
risk of criminal proceedings of the kind mentioned being taken against the respondents but did not propose to shut them out from raising the claim by swearing and filing affidavits if they wished to do so.
The criminal proceedings were related to possible offences of conspiracy under S. 86 of the Crimes Act 1914 (Cth) or S. 132 when read in conjunction with S. 133 of the
Co~vriaht Act 1968 (Cth).
The order made on 7 July was varied on 14 July in certain respects order 3 which required the filing of an affidavit setting out specified matters was amended by the insertion of a paragraph (d) which reads:

"alternatively, in respect of any such information which the respondents object to providing on the ground of privilege:

respondents so object to providing;	(i) which information the
privilege is claimed." and ( ii) the grounds upon which

The direction of the Court was that any affidavit in
compliance with order 3 of 7 July as varied be filed on or
before 21 July 1989. An affidavit was sworn and filed on 11

' August 1989 by Dennis Lewy, the second respondent in the proceedings who says he is also a director of the first respondent. It has been said that the affidavit was out of time however that is strictly not so because the affidavit that was to be filed in the time mentioned was the affidavit complying with the Norwich Pharmacal order and this affidavit does not do that but sets out the sworn grounds as to why the affidavit ought not be filed. What it does is annex a copy of the minutes of a meeting of directors of the first respondent held on 9 August last which, in short, resolved that the company should object to providing the requisite information on the ground that it would tend to expose the company to criminal liability of the kind to which I have referred.

In my view that is not sufficient to operate to excuse the respondents from compliance with order 3 of 7 July as varied by the later order. I emphasise that the Court must be satisfied on the material presently before it as to whether there is a real and appreciable risk of criminal proceedings being taken against the respondents and I am not at this stage

satisfied that there is such a risk. The course that I think

is best followed to protect the interests of all concerned is to direct that the order that is still in force be complied with by a named date but that the affidavits when filed should be placed in a sealed envelope to be opened only on the order of a Judge of this Court and that the copy served on the solicitors of the applicants shall be subject to a direction which I propose to give in a moment.

Accordingly the orders of the Court are:

1. That the time be extended to the respondents to comply with order 3 made on 7 July last as varied on 14 July last, the time for compliance being extended to Friday, 18 August next. Upon filing the affidavit should be placed in a sealed enveloped and marked confidential and to be opened only upon the order of a Judge of this Court. The copy of the affidavit served upon the solicitors for the applicant shall, until further order, be made available only to counsel and solicitors for the applicants, shall be used by them only for the purpose of these proceedings and shall not be disclosed in whole or in part to any other person or persons, including the applicants themselves.

2. That the time be extended to the respondents to file and serve their affidavits to 28 August 1989.

3. That the time be extended to the applicants to serve affidavits in reply to 4 September 1989.

4 .     Order 11 as made on 14 July 1989 will stand.

5. I direct the parties to give mutual verified discovery, the affidavits to be filed and served on before 4 September 1989 and inspection to take place within seven days thereafter. The ambit of discovery at this stage, though general, is not to extend to discovery that may result from the filing of the Norwich Pharmacal order.

6. The matter is adjourned to Thursday, 14 September, at 9.30 am for further directions.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Dated: 14 August 1989

Counsel for Applicants:	Mr. C.D. Curtis
Solicitors for Applicants:	Westgarth Middletons
Counsel for Respondents:	Mr. D.K. Catterns
Mr. J. Nicholas

Solicitors for Respondents:	-	Walter Dickson
Date of Hearing:	14 August 1989
Date of Judgment:	14 August 1989