Briggs-Smith v Moree Plains Shire Council
[2012] FMCA 304
•2 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRIGGS-SMITH v MOREE PLAINS SHIRE COUNCIL | [2012] FMCA 304 |
| HUMAN RIGHTS – Procedures of Federal Magistrates Court – interim applications for capping of future party/party costs and for discovery – whether applicant seeking relief in public interest – merits of matter – absence of necessary respondents – interim applications refused. |
| Australian Human Rights Commission Act 1986 (Cth), ss.46PH(1)(i), 46PO Federal Magistrates Act 1999 (Cth), s.45 Federal Magistrates Court Rules 2001 (Cth), r.21.03 Racial Discrimination Act 1975, s.9 |
| Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 Flew v Mirvac Parking [2006] FMCA 1818 Grigor-Scott v Jones [2008] FCAFC 14 L v Commonwealth of Australia [2009] FCA 4 Lawrance v The Commonwealth Of Australia & Ors [2006] FMCA 1792 Victoria v Sutton (1998) 195 CLR 291 |
| Applicant: | NOELINE BRIGGS-SMITH |
| Respondent: | MOREE PLAINS SHIRE COUNCIL |
| File Number: | SYG 2767 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 2 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms B Tronson |
| Solicitors for the Applicant: | Environmental Defenders Office NSW Ltd |
| Counsel for the Respondent: | Mr E Young |
| Solicitors for the Respondent: | TressCox Lawyers |
ORDERS
The applicant’s applications in a case filed on 25 January 2012 and 9 March 2012 are refused.
Costs in relation to those applications are reserved.
The respondent must file and serve any application for summary dismissal and all affidavits in support no later than 23 April 2012. The application is to be made returnable for 31 May 2012 at 10.15am.
The applicant must file and serve any affidavits in reply on or before 14 May 2012.
The respondent must file and serve any outline of submissions and list of authorities no later than 21 May 2012.
The applicant must file and serve any outline of submissions and list of authorities no later than 25 May 2012.
The proceedings are listed for hearing of that application and for directions generally on 31 May 2012 at 10.15am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2767 of 2011
| NOELINE BRIGGS-SMITH |
Applicant
And
| MOREE PLAINS SHIRE COUNCIL |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This judgment explains my reasons for refusing interlocutory applications by the applicant, Ms Briggs-Smith, for an order which would cap at $5,000 the costs that might be made against the unsuccessful party at the end of the case, and for orders that Moree Plains Shire Council must follow formal Court procedures to give discovery of numerous documents.
The principal proceedings commenced with a complaint made by Ms Briggs-Smith to the Australian Human Rights Commission on 8 September 2010. The complaint concerned the management of an indigenous collection in the Northern Regional Library, which is jointly owned by a partnership of four local councils in north western New South Wales, and which was managed in the past by employees of the Moree Plains Shire Council in premises of that Council at Moree which were called the Dhiiyaan Indigenous Centre.
The complaint by Ms Briggs-Smith was made with the assistance of the Environmental Defender’s Office NSW Ltd, and appeared chiefly addressed at rectifying her concerns about her own employment by Moree Plains Shire Council as an Aboriginal Researcher in relation to the collection during 2010. She complained that “I have been discriminated against because I tried to save a most unique relevant Aboriginal vital service”, and referred to some personal grievances. She also complained, somewhat unclearly, about the general management, budgeting and future plans for the library collection.
The complaint named only the Moree Plains Shire Council as respondent, and was terminated by a decision of a delegate of the president made on 6 October 2011 under s.46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth). The notice of termination named only that Council as respondent, and treated the complaint as one which alleged racial discrimination in employment.
The present substantive application was then filed in this Court under s. 46PO(1) of the Australian Human Rights Commission Act on 5 December 2011, and also names Moree Plains Shire Council as its sole respondent.
Section 46PO(1) allows a person affected by a complaint which has been terminated to “make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.” There is a 60 day time limit under s.46PO(2). Under s.46PO(3), the unlawful discrimination must be the same in substance as the unlawful discrimination that was the subject of the terminated complaint, or must arise out of substantially the same acts, omissions or practices that were the subject of the terminated complaint. It is well established that all of these requirements are jurisdiction conditions to the powers of the two courts, and that, in particular, it is not open to an applicant to extend the complaint and seek relief in relation to respondents who were not respondents to the complaint which was terminated by the Commission (see Lawrance v The Commonwealth Of Australia & Ors [2006] FMCA 1792, L v Commonwealth of Australia [2009] FCA 4, and Grigor‑Scott v Jones [2008] FCAFC 14).
As amended, Ms Briggs-Smith’s principal application seeks relief of the following nature:
1.Declaration that the Respondent breached s.9(1) of the Racial Discrimination Act 1975 (Cth) by:
(a)separating the Dhiyaan Indigenous Centre (DIC) from the Moree branch library;
(b)removing items and resources from the DIC’s collection;
(c)Failing to recover books, items and resources belonging to the DIC collection;
(d)closing the DIC to the public during the period from about August 2010 to about 8 September 2010;
(e) (deleted);
(f)as a result of (a) to (d) above reducing the type and level of services that the DIC is able to provide the Aboriginal community in Moree and in Kamilaroi Country.
2.The Respondent return to the DIC the resources and items referred to in 1(b) and (c) above.
The statement of claim which has been filed, narrates a background of the Aboriginal collection which was managed by Moree Branch Library. The pleading at several points makes clear that, at least in recent times, the relevant collection is “controlled and administered” by an entity referred to as “The Northern Regional Library”. In particular, paragraph 7 pleads:
7.The respondent, together with other local government authorities, namely, Walgett Shire Council, Brewarrina Shire Council and Gwydir Shire Council (the Regional Partners), controls and administers the Northern Regional Library.
The pleading contends that in the past the collection was physically located in premises of the Moree Library, and was “managed by the Regional Library Manager”, being a person who is “employed by, managed and reported directly to the Director of Corporate Services” of the Moree Plains Shire Council. It is common ground that this was the situation in the period after October 2008.
The pleading identifies various actions affecting the collection in recent years, including the lending out of parts of the collection to branches of the Northern Regional Library other than the branch represented by the Moree Library, the auditing and re-cataloguing of the collection, and a meeting held in March 2010 of officials of Moree Plains Shire Council in relation to the future management and funding of the collection, that meeting being attended by the applicant. It is alleged that the collection was subsequently separated from Moree Branch Library, and insufficiently staffed and resourced. It is alleged that it was not properly staffed when the applicant went on stress leave and then resigned in December 2010.
At the end of the statement of claim, allegations of contravention of s.9 of the Racial Discrimination Act are pleaded in a rolled up fashion. Section 9(1) provides:
(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
The pleading alleges:
63. In the premises, the respondent:
a.permitted items from the DIC reference collection to be borrowed or removed by other branches of the Northern Regional Library on a permanent or semi-permanent basis;
b.failed to retrieve the items referred to in sub-paragraph (a) above;
c.failed to provide sufficient resources to the DIC such that it could continue to operate when separated from the Moree Branch Library; and
d.failed to ensure appropriate staffing for the DIC, resulting in its closure when the applicant was unable to attend work during the period from about 7 August 2010 to about 8 September2010.
64.In the premises, each of, any one of, or any combination of the acts referred to in paragraph 63 constituted an act or acts involving a distinction, exclusion, restriction or preference in relation to one or more of the following:
a.the DIC generally;
b.access to the DIC generally;
c.access to the DIC by persons wishing to research family or community history;
d.access to the DIC by members of the Aboriginal community in and around Moree; and
e.access to the DIC by people of Kamilaroi descent.
65.That act or those acts were based on the race of one or more of:
a.individuals most likely to access the DIC;
b.individuals who had accessed the DIC in the past;
c.individuals constituting the Aboriginal community in and around Moree; and
d.individuals of Kamilaroi descent.
66.That act or those acts had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of one or more of the following rights of individuals constituting the Aboriginal community in and around Moree and/or individuals of Kamilaroi descent:
a.the right to equal participation in cultural activities, including, but not limited to, through the accessibility of family, social and cultural historical research;
b.the right to equal participation in cultural activities, including, but not limited to, through the conservation of family, social and cultural historical artefacts;
c.the right to education, including, but not limited to, about family, social and cultural history; and
d.the right of those individuals to enjoy their own culture.
67.In the premises, each of, any one of, or any combination of the acts referred to in paragraph 63 constituted unlawful discrimination in breach of section 9(1) of the Racial Discrimination Act 1975 (Cth).
It is very hard at this stage to focus these allegations of racial discrimination, and how Ms Briggs-Smith might seek to establish them by evidence. Their merits appear to me to be entirely speculative at this stage.
The application for a cap on costs orders
In support of the application for party/party costs awarded against the losing party to be capped at $5000, affidavits by Ms Briggs-Smith and others have been filed. Ms Briggs-Smith’s affidavit discloses that she is being represented in the proceedings by the Environmental Defender’s Office NSW “on a pro bono basis”, with counsel’s fees contingent on success. She describes personal financial resources sufficient to meet any likely adverse costs order assessed on a party/party basis, assuming the proceedings did not get out of hand. However, her resources are modest, and I accept that she may have concluded that it would be foolhardy on her part to put at risk her own financial situation in the pursuit of the present litigation. I accept, as she states:
33.Due to my limited income and financial resources, and the fact that I do not stand to gain financially from these proceedings even if successful, I would only be able to proceed if an order is made by the Court limiting the total costs payable by me in the event of an adverse costs order in these proceedings in the amount of $5,000.
I did not understand counsel for Moree Plains Shire Council to invite me to make any other finding, than that Ms Briggs-Smith appears likely to discontinue the proceedings if I refuse to cap a future costs award.
Federal Magistrates Court Rules 2001 (Cth), r. 21.03 provides:
Determination of maximum costs
(1)The Court may specify the maximum costs that may be recovered on a party and party basis:
(a) by order at the first court date; and
(b)of its own motion or on the application of a party.
(2)However, an amount specified must not include an amount that a party is ordered to pay because the party:
(a)has failed to comply with, or has sought an extension of time for complying with, an order or with any of these Rules; or
(b)has sought leave to amend a document; or
(c)has otherwise caused another party to incur costs that were not necessary for the economic and efficient progress of the proceeding or hearing of the proceeding.
(3)The Court may vary the maximum costs specified if, in the Court's opinion, there are special reasons and it is in the interests of justice to do so.
Similar rules are now found in the Federal Court Rules and in the current rules of the State courts. Their application in the Federal Court was discussed in a helpful fashion by Bennett J in Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864:
6The parties agree on many of the factors to be taken into account in the exercise of the Court’s discretion to make an order under rule 1. As discussed in the authorities which consider O 62A r 1 and the equivalent provision in the Federal Magistrates Court Rules, the factors include:
· the timing of the application (Sacks v Permanent Trustee Australia Ltd [1993] FCA 502; (1993) 45 FCR 509 at 511 per Beazley J; Flew v Mirvac Parking Pty Ltd [2006] FMCA 1818 at [48] per Barnes FM; Minns v State of NSW (No. 2) [2002] FMCA 197 at [9] per Raphael FM]);
· the complexity of the factual or legal issues raised in the proceedings (Hanisch at 387 per Drummond J; Dibb v Avco Financial Services Limited [2000] FCA 1785 at [15] per Sackville J);
· the amount of damages that the applicant seeks to recover (Hanisch at 387) and the extent of any other remedies sought (Flew at [48]);
· whether the applicant’s claims are arguable and not frivolous or vexatious (Flew at [15]);
· the undesirability of forcing the applicant to abandon the proceedings (Woodlands v Permanent Trustee Company Limited (1995) 58 FCR 139 at 148 per Wilcox J; Flew at [9]); and
· whether there is a public interest element to the case (Woodlands at 146; Flew at [23], [47]).
7Virgin contends that, in addition, the Court should take into account:
· the costs likely to be incurred by the parties in the preparation for, and hearing of, the matter (Flew at [48]);
· whether the party opposing the making of the order has been uncooperative and/or has delayed the proceedings (Dibb at [17]; Hanisch at 390); and
· ‘...any other matters which may go towards establishing that there should be a departure in advance from the usual rules as to quantification of the amount of costs to be payable by the ultimately unsuccessful party’ (Flew at [48]).
8The general principle is that costs ordinarily follow the event and that a successful litigant receives costs in the absence of special circumstances justifying some other order (Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11] per Black CJ and French J). This reflects the principle that the award of costs to a successful party is principally by way of perceived restorative justice (Ruddock at [12]). In Ruddock at [13], Black CJ and French J discussed the fact that novel legal issues and public interest litigation are cases where the usual rationale for the award of costs, that the successful party has been wronged at the hands of the losing party, does not necessarily apply. A losing party may, as their Honours point out, have had very good legal grounds for its position and conducted itself in the litigation in an entirely reasonable way and an order that costs follow the event may work unfairness. It may also, as their Honours observed, pose a significant barrier against parties of modest means even if the contemplated claim has substantial merit.
9Chief Justice Black and French J said at [13] that criticisms concerning costs in public interest litigation did not justify a global modification of the usual rule that costs follow the event, but that the ability to exercise discretion is desirable. Further, as noted at [14], the compensatory principle ‘was long subject to a limited public interest qualification at common law’. The further factor, that a party is deprived of costs because of its conduct of the proceedings, does not presently apply to Virgin, although Virgin submits that the applicants’ conduct of the proceedings to date, in the amendment of pleadings and provision of particulars, is relevant.
10The fact that the proceedings are brought otherwise than for the personal or financial gain of the applicant does not detract from the general proposition that ordinarily costs follow the event (Ruddock at [18]). The fact that litigation can be characterised as being "in the public interest" does not, of itself, mean that the usual order is not made. However, the nature and purpose of the proceedings are still relevant in the exercise of the discretion to award costs and the exercise of the discretion takes account of all of the circumstances (Ruddock at [18]–[19]; [24]). There is no error in taking into account in a decision whether to award costs matters such as the absence of personal gain on the part of the applicants, the fact that a significant number of members of the public may be affected and that the basis of the challenge is arguable and raises "significant issues" as to the interpretation and application of statutory provisions (Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [20] per Gaudron and Gummow JJ, at [49] per McHugh J). The same circumstances are relevant to an order under Order 62A r 1 which, while making provision for the costs of a successful party, departs from the usual order that would otherwise be made.
11It is of some interest to note that maximum costs orders, also known as protective costs orders, are made in other jurisdictions within the discretion of the court. For example, in the United Kingdom the Court of Appeal has set out the discretionary considerations in Regina (Corner House Research) v Secretary for Trade and Industry [2005] 1 W.L.R. 2600 at [74] as whether:
· the case is a public law case raising issues of general public importance.
· the public interest requires that those issues be resolved.
· the applicant has no private interest in the outcome of the case.
· having regard to the financial resources of the applicant and the respondent and the amount of costs that are likely to be involved, it is fair and just to make the order.
· if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
12In Canada, the Supreme Court in British Columbia (Minister of Forests) v Okanagan Indian Band 2003 SCC 71, 313 N.R. 84 (at [40]–[41] per LeBel J) and Little Sisters Book & Art Emporium v Canada (Commissioner of Customs & Review Agency) 2007 SCC 2, J.E 2007-211 (at [36]–[41] per Barstarache and LeBel JJ) discussed factors such as:
· access to justice;
· the right of indemnity for costs incurred by a successful party;
· the need to establish special circumstances where an order is sought that the usual costs order not apply in public interest litigation;
· the ability of a party to continue the litigation if an order were not made;
· whether the litigant could show that he or she genuinely cannot afford to pay for the litigation and that no other realistic option exists for bringing the issues to trial;
· the existence of a prima facie case of sufficient merit; and
· special circumstances sufficient to satisfy the court to depart from the usual order for costs.
13If present, there are, therefore, a variety of factors that may be taken into account in exercising the Court’s discretion. These may all be relevant.
I was also referred to Flew v Mirvac Parking [2006] FMCA 1818, in which Barnes FM accepted the relevance to this Court of discussion on the similar rule in other courts. Her Honour also said:
42.I have borne in mind, however, that unlike the Federal Court, the Federal Magistrates Court was set up as a lower level court to handle less complex federal matters (see the Second Reading Speech for the Federal Magistrates Bill 1999). It was created under legislation which specifies objects of the Act as set out above. Moreover, consistent with those objects and unlike the Federal Court, this Court has in its Rules provision for costs to be calculated in accordance with Part 1 of Schedule 1 to the Rules unless the Court otherwise orders. While no special provisions were made in relation to costs in discrimination matters in the Rules, Schedule 1 to the Rules limits and prescribes costs so that, unless the Court otherwise orders, an unsuccessful party will not necessarily be exposed to liability for the full party/party costs of the other side. Absent any particular factors, both parties should know when initiating litigation in this jurisdiction that costs are likely to be calculated in accordance with Schedule 1. Hence this factor may be weighed by applicants in determining whether and where to commence a discrimination claim. These provisions assist a prospective litigant to calculate (subject to the litigant’s ability to estimate the time and number of events in potential litigation) the likely extent of any costs order that may be made against the litigant should he or she be unsuccessful.
The debate in the written and oral submissions of counsel before me in the present matter focused upon my ability or otherwise to identify a public interest pointing to the desirability of allowing the proceedings to continue in the face of Ms Briggs-Smith’s indication that they would be unlikely to do so without a capping of costs at $5000 in relation to her potential liability if the proceedings failed.
As Bennett J’s description indicates, it is relevant to consider in this respect, if possible, the degree of apparent merit in the case in achieving something by way of Court remedy that could be regarded as serving a public interest, in particular, serving the public policy objectives of the legislation conferring jurisdiction on the Court. In the present case, the Court’s jurisdiction serves private and public purposes to enforce the Racial Discrimination Act by the making of judicial orders.
Related to that assessment, are assessments of the likely costs which would be incurred by the parties if the matter proceeds, and those of the other parties to which they might be exposed if a capping order is not made. The private or public nature of the parties may be relevant in this respect.
Unlike some other cases, and perhaps the situation leading to the Federal Court first introducing a rule of this sort, the present respondent is not a commercial entity, who might be able to absorb significant litigation costs even if successful, without detriment to its normal operations. It is a local council, presumably with purely public purposes and a publicly-funded budget, including from local ratepayers. I therefore do not regard Moree Plains Shire Council as a respondent who obviously would be reasonably exposed to a capping of its recoverable costs at a significantly limited figure, where the litigation appears to me at present to have real potential to be expensive in terms of litigation expenses.
On the other hand, the applicant presents herself, and I have accepted, as a person who has no personal financial interest in the outcome. Her cultural and emotional interest in the proceedings, and its sufficiency to give her standing in the proceedings, has not been challenged. In this respect, I note that she is an Aboriginal elder “of the Moree region and Coombri People of the Kamilaroi Nation.” The evidence has yet to reveal the extent to which she is in that capacity speaking on behalf of all the indigenous people residing in the region covered by the four councils who own the relevant library collection. It may be that there are other Aboriginal persons with different interests and opinions about the management of these library resources. This is unknown at this stage.
I accept that the broad and underlying topic of the proceedings – being the management and budgeting and staffing and location of this particular library resource – is a matter of public interest, and that it is of particular public interest for Aboriginal residents in the areas of its four local council owners. However, at the end of the day, I have not been able to satisfy myself that the matters pleaded, and the relief sought in the application, have such obvious merit and public purpose in relation to that topic so as to justify an exercise of my discretion under r. 21.03.
In particular, it appears to me that counsel for Moree Plains Shire Council has identified a difficulty casting a substantial doubt about the prospects of any useful outcome in the proceedings. This is the absence of potential respondents which might appear to be necessary parties to the obtaining of relief, both in relation to the past management of the library resources, but also, and more importantly, in relation to its future management and ownership. The requirement that all necessary parties should be before the Court before it gives relief which might affect their legally recognised interests, was explained by McHugh J in Victoria v Sutton (1998) 195 CLR 291:
77.The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. That practice also assists in avoiding duplication of hearings on the same issues and in avoiding the spectre of inconsistent decisions by courts or the judges of the same court. In Pegang Mining Co Ltd v Choong Sam Lord Diplock, delivering the opinion of the Judicial Committee of the Privy Council, said:
"In their Lordships' view one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard ... a better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?"
78.The test for determining whether a person is a necessary party has usually arisen in the context of a person seeking to join proceedings rather than a failure to join a relevant person. But the same principle must apply in both situations. Thus, in News Ltd v ARL, the Full Federal Court held that an order "which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside." The Full Court pointed out that O 6 r 7 of the Federal Court Rules which states that proceedings will not be defeated by a misjoinder or non joinder was "intended to give effect to the abolition of the plea of abatement". The Court said that the rule was directed "to cases where there is a curable defect, for example the misnaming of a party".
In the present case, in my opinion, on the applicant’s own pleading, three of the local councils who are, with Moree Plains Shire Council, the joint owners of the library resources, and are the persons whose responsibility it is to maintain and manage them, are not all parties to this proceeding. In this situation, I find it difficult to see how the proceedings would usefully proceed to hearing and determination in their absence. Moreover, as I have noted, this is a difficulty that could not be rectified by way of amendment to join the other councils as parties, since they were not respondents to the complaint which was addressed by the notice of termination by the delegate of the President of the Human Rights Commission.
Without, at this stage, determining that the proceedings are hopelessly constituted so far as all the relief that they seek is concerned, I am at least sufficiently concerned by this aspect not to be persuaded that the present proceedings provide a suitable vehicle for pursuing the public interests concerning the future of the library collection which Ms Briggs-Smith now wishes to canvass before the Court by reference to the Racial Discrimination Act.
I am also concerned that I have been unable, even with the assistance of the submissions made today on behalf of Ms Briggs-Smith by her counsel, to readily understand what precisely are the actions of racial discrimination which would be at the forefront of her case in relation to the past and future management of this library collection by Moree Plains Shire Council and its agents.
Moreover, the proceedings are currently presented to the Court with a vagueness and generality as to their future procedural course and the nature of the real issues which would be the subject of a trial. The present motion for discovery, which I shall address below, seems to suggest that there is a very large element of investigation which Ms Briggs-Smith’s current legal advisors wish to embark on before committing themselves to a readily understandable case. This leaves not only a cloud of uncertainty over the expensiveness of the proceedings, but also their basic merits and relevance to the underlying public interest that has been pointed to.
For all these reasons, I am not persuaded that the Moree Plains Shire Council should be obliged to defend these proceedings with an apprehension that, even if it succeeds, it is unlikely to recover most of the party/party costs which would normally follow the event, even in discrimination cases. I consider that it would be in accordance with the authorities which I have cited above, that I should refuse to exercise my discretion under r.21.03.
The application for discovery
Ms Briggs-Smith’s motion sought discovery of the following documents:
1.All catalogue entries relating to items currently held by any of the Moree Branch Library, the Northern Regional Library and the Dhiiyaan Indigenous Collection which were, as at 8 September 2010, identified or catalogued as part of the Dhiiyaan Indigenous Collection and/or Aboriginal collection.
2.All documents, records, files, catalogue entries and computer and other electronic files relating to items identified by Mary McCauley as having been recatalogued since the last authorised catalogue process, as referred to at paragraph 16 of the defence filed on 2 March 2012.
3.Any report or like document, including letters, emails and computer and other electronic files, by Mary McCauley as a result of her activities referred to at paragraph 16 of the defence filed on 2 March 2012.
4.All documents, records, files and computer and other electronic files relating to the book exchange program referred to at paragraph 8 of the defence filed 2 March 2012.
5.Any advertisement, and/or draft and/or copy thereof, for any staff member intended or proposed to work for or in the Dhiiyaan Indigenous Collection, where such advertisement was published in or after January 2010 up to and including 8 September 2010.
6.All documents, records, files, emails, policy documents and notes and computer and other electronic files relating to any family history unit, program or service established, run or supported by the Moree Branch Library and/or Northern Regional Library, other than the Dhiiyaan Indigenous Collection (including the Moree Historical Society Incorporated) for the period from 8 September 2007 to 8 September 2010 inclusive.
7.All documents, records, files, emails, policy documents and notes and computer and other electronic files relating to the provision of services by the Moree Branch Library and/or the Northern Regional Library to the Dhiiyaan Indigenous Collection for the period from 8 September 2007 to 8 September 2010 inclusive.
8.All documents, records, files, emails, policy documents and notes and computer and other electronic files relating to the provision of services by the Dhiiyaan Indigenous Collection to the Moree Branch Library and/or the Northern Regional Library for the period from 8 September 2007 to 8 September 2010 inclusive.
9.All documents, records, files, emails, minutes and notes and computer and other electronic files in relation to the meeting on or about 29 March 2010 referred to at paragraphs 49-50 of the Statement of Claim filed 10 February 2012.
10.All documents, records, files, emails, minutes and notes and computer and other electronic files in relation to the meeting on or about 24 May 2010 referred to at paragraphs 51-52 of the Statement of Claim filed 10 February 2012.
In submissions, counsel for Ms Briggs-Smith suggested that some of these orders for discovery might be pressed in the future, but would not be pressed today. However, she maintained a need for discovery in relation to paragraphs 3 and 5 of the attachment.
Section 45 of the Federal Magistrates Act 1999 (Cth) states:
(1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.
Judgments in this Court have emphasised the rare circumstances in which processes of formal discovery will be directed. In this Court, it is usual for evidence to be presented in advance of hearings, by way of affidavit, including the foreshadowing of documentary tenders, and for any additional documents required to be tendered by a party to be procured by way of focused subpoenas and notices to produce. Those processes are far less expensive than processes of discovery, requiring the taking of detailed instructions, preparation of verified lists, and processes of inspection etc.
I am not at all persuaded that the present case cannot proceed fairly, expeditiously, and with a reasonable level of costs, without an order for discovery, even of the limited kind now pressed.
Ms Briggs-Smith appears herself in the past to have been directly involved in the management of the library collection, and to be fully knowledgeable about its contents and about what has happened to it over the years until 2010. I am not persuaded that she does not currently have available sufficient evidence to give the court any necessary background, without needing exhaustive discovery of the sort foreshadowed in this application in the case. As presently framed, much of it appears to me to be patently oppressive to the respondent.
At this stage, even narrowing the application down to documents described in paragraphs 3 and 5, the relevance of the activities of Ms McCauley and of the advertising for additional or replacement staff to assist with the library collection, is not obviously a matter of material relevance to the parties’ pleadings. I am not at present satisfied that sufficient relevant evidence about these matters is not currently available to Ms Briggs-Smith, or could not sufficiently be obtained by her legal advisors by way of formal or informal notices to produce.
Taking into account all the relevant considerations, I am not persuaded that this is a case in which I should make a declaration under s.45(1) now. Nor at this stage of the case management of the matter, do I envisage it becoming such a case.
However, nothing in this judgment should be seen as irrevocably foreclosing the possibility, if the matter proceeds, that Ms Briggs-Smith could successfully repeat either her application for a capping order on costs, or an application for properly focused discovery.
I propose today to adjourn the matter for further directions, to allow the parties to consider their positions in the light of my above judgment.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 18 April 2012
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