Authors Workshop v Bileru Pty Ltd

The Federal Court of Australia heard a case between Authors Workshop and Bileru Pty Ltd, where the applicants sought an order for the respondents to disclose certain information, in line with the Norwich Pharmacal order. The respondents, however, argued that they should be exempt from complying with the order due to the risk of facing criminal charges if they did so. The court was required to determine whether there was a real and appreciable risk of criminal proceedings being taken against the respondents and if so, whether they should be exempt from complying with the order. The court also needed to consider the appropriate steps to take to protect the interests of all concerned.

The court examined the arguments presented by the respondents and the authorities cited. While the court acknowledged the risk of criminal proceedings, it found that there was not sufficient evidence to satisfy it that there was a material risk of such proceedings being taken against the respondents. The court emphasised that it must be satisfied on the material before it as to whether there is a real and appreciable risk of criminal proceedings being taken against the respondents. The court concluded that the affidavit provided by the respondents was not sufficient to excuse them from complying with the Norwich Pharmacal order. Instead, the court decided that the respondents should comply with the order, but the affidavits they file in compliance should be placed in a sealed envelope and opened only upon the order of a Judge of the Court. The court also imposed restrictions on the use and disclosure of the affidavits served on the applicants' solicitors.

The final orders of the court were as follows: the time for the respondents to comply with the Norwich Pharmacal order was extended to 18 August 1989, with the affidavits to be placed in a sealed envelope and opened only upon the order of a Judge of the Court. The time for the applicants to serve affidavits in reply was extended to 4 September 1989. The matter was adjourned to 14 September 1989 for further directions. The court also directed the parties to give mutual verified discovery, with 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 was not to extend to discovery that may result from the filing of the Norwich Pharmacal order.