Egglishaw v Australian Crime Commission

[2009] FCA 219

FEDERAL COURT OF AUSTRALIA

Egglishaw v Australian Crime Commission [2009] FCA 219

PHILIP JEPSON EGGLISHAW v AUSTRALIAN CRIME COMMISSION

SAD 14 of 2009

LANDER J
13 MARCH 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 14 of 2009

BETWEEN:	PHILIP JEPSON EGGLISHAW Applicant
AND:	AUSTRALIAN CRIME COMMISSION Respondent

JUDGE:	LANDER J
DATE OF ORDER:	13 MARCH 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 14 of 2009

BETWEEN:	PHILIP JEPSON EGGLISHAW Applicant
AND:	AUSTRALIAN CRIME COMMISSION Respondent

JUDGE:	LANDER J
DATE:	13 MARCH 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 21 January 2009 the applicant applied for leave to appeal from an interlocutory order made by Besanko J dismissing an oral application for production of documents by the respondent and dismissing a further application that the respondent file an affidavit of discovery in relation to a number of documents.

2. Two issues were raised on the application for leave to appeal, both of which in the end resolved without the necessity for full argument and the application for leave to appeal was dismissed.

3. The circumstances leading up to the dismissal of the application were these.  The applicant claims that the respondent had in its possession a number of documents and that the respondent had failed to make discovery of them.  The respondent had not prior to the hearing indicated that it did not have the documents but simply that it did not need to discover them.

4. During the hearing I asked the respondent about the documents which the applicant alleged existed and was given an assurance by senior counsel that there were no such documents of that kind.

5. Acting upon that assurance, the applicant did not pursue that part of the application for leave to appeal.

6. The second part of the application concerned documents which had been produced but which were in a redacted form.  It was submitted by the applicant that the respondent should produce non-redacted copies of the documents because the redacted parts of the document would be relevant.

7. I dealt with that part of the application by asking the respondent to produce to me the documents so that I could examine for myself and determine whether the documents as redacted concealed relevant information.

8. Having read the documents, I formed the opinion that there was nothing in the redactions which was relevant.

9. In those circumstances, the applicant submitted to an order that the application for leave to appeal ought to be dismissed.

10. After that order was made, the respondent applied for costs.  The applicant opposed the respondent being awarded costs and sought costs for himself or, in the alternative, an order that there should be no order as to the costs of the notice of motion.

11. I think the application for leave to appeal was the result of the parties both failing to address what was a practical problem in a practical way.  The respondent could have, well before the hearing, advised the applicant that it did not have the documents which the applicants asserted it held.  When it did give that assurance through senior counsel, the applicant abandoned that part of the application for leave to appeal.

12. The respondent could also have offered to make the documents which it did have available to the Court for examination in relation to the second issue well before the hearing.

13. On the other hand, the applicant, as it happened, has not made out the existence of the first set of documents and the relevance of those parts of the documents redacted in the second set of documents.

14. It seems to me that, in the end result, the justice of the case would mean that the appropriate order be no order as to costs.

15. The order of the Court will be no order as to costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:       13 March 2009

Counsel for the Applicant:	Mr M Abbott QC with Mr A Thomas
Solicitor for the Applicant:	Iles Selley
Counsel for the Respondent:	Ms S Maharaj QC
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	2, 3 February 2009
Date of Judgment:	13 March 2009