Collins v Trimatic Contract Services Pty Ltd and Ors (No.4)

[2014] FCCA 1610

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLINS v TRIMATIC CONTRACT SERVICES PTY LTD & ORS (No.4) [2014] FCCA 1610

Catchwords:
PRACTICE AND PROCEDURE – Application for adjournment – where respondent had claimed “penalty privilege” and not delivered affidavits of evidence in chief until close of applicant’s case – where applicant sought adjournment – adjournment granted.

Legislation:  

Federal Circuit Court Rules 2001, r.14.10

Applicant: TIMOTHY JOHN COLLINS

First Respondent: TRIMATIC CONTRACT SERVICES PTY LTD

Second Respondent: PETER WILLIAM JONES

Third Respondent: TIMOTHY MARK UNGAR

File Number: PEG 276 of 2013

Judgment of: Judge Jarrett

Hearing date: 13 June 2014

Date of Last Submission: 13 June 2014

Delivered at: Perth

Delivered on: 13 June 2014

REPRESENTATION

Counsel for the Applicant: Mr D. Howlett

Solicitors for the Applicant: Lark Lawyers

Counsel for the Respondent: Mr J.B. Blackburn

Solicitors for the Respondent: Norton Rose Fulbright

ORDERS

1. Adjourn the further hearing of all outstanding applications to 20 October 2014 at 10.00am.

2. In compliance with the order made on 12 June, 2014 for production of  a copy of document referred to in the affidavit of David Anthony Holmes filed on 20 May, 2014 in a .PST format that document be produced in electronic format on a portable hard drive in the following manner:

   (a)Access to the portable hard drive is to be restricted to the solicitors for the Applicant.

   (b)The solicitors for the Applicant be permitted to copy or extract from the portable hard drive only information which they reasonably consider relates to a matter at issue in the proceeding.

   (c)The solicitors for the Applicant shall not show the contents of the hard drive or any information copied or extracted from the hard drive to any person until the following steps are complied with.

   (d)The solicitors for the Applicant shall within 2 days of copying or extracting any information from the portable hard drive provide a copy of the information to the solicitors for the First Respondent for the purpose of allowing the solicitors for the First Respondent to claim privilege or confidentiality in respect of any  the information.

   (e)The solicitors for the First Respondent shall within 2 days of receiving a copy of any information copied or extracted in accordance with order 2 notify the solicitors for the Applicant of any claim of privilege or confidentiality.

   (f)If the solicitors for the First Respondent make a claim of privilege or confidentiality the solicitors for the Applicant and First Respondent shall confer.

   (g)If after conferral the solicitors of the Applicant give written notice to the solicitors for the First Respondent that they do not accept the claim of privilege or confidentiality, the solicitors for the First Respondent shall have 5 days in which to apply to the Court for directions.

   (h)Unless and until the solicitors for the Applicant give written notice to the solicitors for the First Respondent in accordance with order 7, the solicitors of the Applicant shall be taken as having accepted the claim of privilege or confidentiality and may not disclose the information the subject of the claim to the Applicant or anyone.

   (i)While the steps in order 4 to 7 are continuing and, if an application is made to the Court in accordance with order 7, until the Court determines the matter, the solicitors for the Applicant shall maintain the confidentiality of the information in respect of which a claim of privilege or confidentiality is made and not show it to the Applicant.

   (j)The solicitors for the Applicant may disclose to the Applicant any information copied or extracted in accordance with order 2 in respect of which no claim of privilege or confidentiality is made in accordance with order 5 or in respect of which no application to the Court is made in accordance with order 8.

   (k)Save as set out above and for the purpose of the proceeding the solicitors for the Applicant shall not show the contents of the portable hard drive or any information copied or extracted from the portable hard drive to any person.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 276 of 2013

TIMOTHY JOHN COLLINS

Applicant

And

TRIMATIC CONTRACT SERVICES PTY LTD

First Respondent

PETER WILLIAM JONES

Second Respondent

TIMOTHY MARK UNGAR

Third Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application for an adjournment of a trial that is part heard.  The application should be granted for the following reasons.

2. There is no question of there being discovery provided at a late stage by the first respondent necessitating an adjournment.  The argument before me has proceeded on the basis that there is a necessity to examine a document which itself contains a number of other documents and there needs to be sufficient time for that to happen.

3. In one sense that might be in the nature of disclosure or discovery, in a general sense, but, in fact, in the circumstances of this case it is not. The order for the production of the relevant document was an order made under rule 14.10 of the Federal Circuit Court Rules. That required the production of a document that was referred to in an affidavit, nothing more and nothing less.

4. The whole nature of Mr Holmes’ affidavit is extraordinarily curious for a whole range of reasons, but the respondents, having decided to put in an affidavit by Mr Holmes in which he referred to that document they were then caught by, as I determined earlier, rule 14.10. It is not discovery. It is not disclosure. It was said that a number of the documents that were to be relied upon out of the email database, if I might describe it in that way, were no longer pressed and ultimately only four documents were in issue, and the plaintiff was cross-examined on each of those and his evidence about them was unremarkable.

5. That might be so, but that the respondent chooses to conduct its case in a particular way, does not bind the applicant in the way in which it must conduct his case, and that the respondents might see that they are only four documents which are of any importance in the proceedings, ultimately, does not mean that the applicant will share that view or ought to be bound to that view.

6. Nothing which occurred yesterday, or the day before, or today, means that the decision that I made not to adjourn the trial when there was an application for such, was incorrect.  What has occurred has occurred during the course of this trial having regard to the way in which the respondents have run the case.  But more than that – and I say this without criticism – the respondents now are relying on – the two personal respondents are relying on affidavit material which was delivered to the applicant yesterday.

7. Contrast that to the position where the respondents have had the applicant’s material since early this year.  Apart from anything else; and even recognising that the respondents were entitled to claim “penalty privilege”, and assuming that my ruling yesterday that they had waived that privilege was wrong, nonetheless the production of statements of evidence-in-chief now, coupled with an expectation that the applicant might move straightaway to cross-examine those witnesses on those affidavits and more generally, is of itself a nonsense.

8. If the respondents are entitled to see the applicant’s evidence and have the opportunity to prepare their case at leisure over a significant period of time, why, in the interests of justice, is the applicant not entitled to the same benefit?  So, leaving aside arguments about documents, the number of documents to be examined and the rest, apart from anything else, the case ought to be adjourned so that the applicant has the opportunity to properly consider the evidence most recently delivered by the second and third respondents. 

9. In my view, nothing could be clearer.  Of course you can have your adjournment, Mr Howlett.

RECORDED:   NOT TRANSCRIBED

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 13 June 2014.

Associate: 

Date:  23 July 2014