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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Authors Workshop v Bileru Pty Ltd

Details

AGLC: Authors Workshop v Bileru Pty Ltd [1989] FCA 656
Case: [1989] FCA 656
Decision Date: 14 Aug 1989

CaseChat Overview and Summary

The Federal Court of Australia considered a dispute between Authors Workshop and Bileru Pty Ltd. The applicants sought information from the respondents regarding the disclosure of certain documents, under a Norwich Pharmacal order, which would assist in their legal action against a third party. The respondents argued that compliance with the order might expose them to criminal proceedings under the Crimes Act 1914 and the Copyright Act 1968. The Court had to determine whether the respondents' concerns about potential criminal liability justified their refusal to comply with the order.

The legal issue before the Court was whether the respondents could be excused from complying with the Norwich Pharmacal order due to the risk of facing criminal proceedings if they disclosed the requested information. The Court considered the respondents' affidavit, which outlined their objections based on the risk of criminal liability. The applicants argued that the respondents' concerns were speculative and not sufficient to warrant non-compliance with the order. The Court needed to assess whether there was a real and appreciable risk of criminal proceedings to decide if the respondents could be excused from complying with the order.

The Court concluded that the respondents' concerns about criminal liability did not sufficiently justify non-compliance with the Norwich Pharmacal order. Justice Lockhart held that the Court must be satisfied on the material before it that there was a real and appreciable risk of criminal proceedings. The Court was not satisfied that such a risk existed and thus directed that the order be complied with under specific conditions to protect the respondents' interests. The Court extended the time for compliance and required that the affidavits be filed in sealed envelopes, accessible only to the Court and the applicants' legal representatives for the purpose of these proceedings. The matter was adjourned for further directions.

The Court made several orders, including extending the time for compliance with the Norwich Pharmacal order, requiring the affidavits to be filed in sealed envelopes, and limiting the use and disclosure of the affidavits. The Court also directed that mutual verified discovery be given and set a date for further directions.

Orders