FEDERAL COURT OF AUSTRALIA
Fisher v Houston [2013] FCA 1026
Citation: Fisher v Houston [2013] FCA 1026 Parties: STEVEN FISHER v CAMERON HOUSTON File number: VID 301 of 2012 Judge: TRACEY J Date of judgment: 11 October 2013 Catchwords: COSTS – application for preliminary discovery – where proceedings discontinued – whether parties acted reasonably when instituting, maintaining and discontinuing proceedings – respondent ordered to pay part of the applicant’s costs Legislation: Federal Court of Australia Act 1976 (Cth) – ss 37P, 43
Federal Court Rules 2011(Cth) – rr 7.22, 7.23, 26.12
Privacy Act 1988 (Cth)Cases cited: Costin v Duroline Products Pty Limited [2013] FCA 501 – considered
Primary Health Care Limited v Australian General Practice Network Limited [2012] FCA 174 – applied
Re Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 – considered
Ruddock v Vadarlis(No 2) (2001) 115 FCR 229 - considered
Date of hearing: Heard on the papers Date of last submissions: 4 October 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Prospective Applicant: Mr L Glick SC and Mr P A Clarke Solicitor for the Prospective Applicant: SBA Law Counsel for the Prospective Respondent: Mr M J Collins SC Solicitor for the Prospective Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 301 of 2012
BETWEEN: STEVEN FISHER
Prospective Applicant
AND: CAMERON HOUSTON
Prospective Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
11 OCTOBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs of this proceeding incurred after 16 July 2012.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 301 of 2012
BETWEEN: STEVEN FISHER
Prospective Applicant
AND: CAMERON HOUSTON
Prospective Respondent
JUDGE:
TRACEY J
DATE:
11 OCTOBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The prospective applicant, Mr Steven Fisher, is the Managing Director of a company in the clothing industry. He has a mobile telephone but only provided the number to a limited group of persons. He was, therefore, surprised when, in March 2012, whilst attending a board meeting, he received a call on his mobile telephone from a journalist, the prospective respondent, Mr Cameron Houston. Mr Houston asked Mr Fisher if he wished to comment, on or off the record, about a legal proceeding in which a business associate of Mr Fisher’s was involved.
Mr Fisher had never provided his mobile telephone number to Mr Houston. Nor, so far as he was aware, had any of the persons in whom he had confided the number. He was, as a result, concerned that his privacy may have been breached by some third person who had, without his authority, given his number to Mr Houston. Such a breach may have involved a contravention of the Privacy Act 1988 (Cth) (“the Act”) if the third person was acting on behalf of an organisation or an…
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- Fisher v Houston [2013] FCA 1026
- Case
- [2013] FCA 1026
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CaseChat Overview and Summary
The court found that Mr Fisher took prudent and reasonable steps to obtain the information before approaching the court. Mr Fisher made inquiries of his wife and colleagues, engaged his solicitor to write to Mr Houston, and expressed his intention to issue proceedings if Mr Houston failed to disclose the source of the telephone number. Mr Houston's failure to respond demonstrated his unwillingness to cooperate. The court held that the proceedings were reasonably commenced. Mr Houston's uncooperative conduct continued throughout the proceedings. He did not file an affidavit in July 2012 as ordered by the court, but did so belatedly on 26 September 2012. The court held that Mr Houston's conduct in maintaining the proceedings was unreasonable.
The court exercised its discretion and ordered Mr Houston to pay Mr Fisher’s costs of the application incurred after 16 July 2012. The court considered the relevant factors in exercising its discretion, including whether the proceedings were reasonably commenced, the reasonableness of the parties' conduct, and the nature of Mr Fisher's reasons for seeking to discontinue the proceedings. The court concluded that the broader range of considerations supported the exercise of its discretion in favour of Mr Fisher.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In cases such as the present a broader range of considerations will inform the Court’s exercise of discretion. In Primary Health Care Limited v Australian General Practice Network Limited [2012] FCA 174, Stone J set out considerations relevant in the exercise of the Court’s discretion when determining costs following the discontinuance of a proceeding. Her Honour stated at [7]:“Considerations relevant to the exercise of the Court’s discretion generally, and in this case, are: whether the proceedings were reasonably commenced; whether, in all the circumstances, the parties’ conduct in maintaining and defending the proceedings was reasonable; and the nature of the applicants’ reasons for seeking to discontinue the proceedings.”CONSIDERATION Mr Fisher took prudent and reasonable steps to obtain the information which he sought before approaching the Court. Prior to filing his application Mr Fisher also made inquiries of his wife and longstanding colleagues who denied providing the number to Mr Houston or anyone who could have provided the number to Mr Houston. He engaged his solicitor to write to Mr Houston, affording him two opportunities to respond. Both letters expressed Mr Fisher’s intention to issue proceedings seeking an order for preliminary discovery against Mr Houston if he failed to disclose the source of Mr Fisher’s telephone number. Mr Houston failed to respond to both letters and an application was filed. It is widely accepted that, when an application for preliminary discovery is made, the respondent is entitled to remain passive until the applicant has made out its case: see Costin v Duroline Products Pty Limited [2013] FCA 501. In this case, Mr Houston’s failure to respond demonstrated his unwillingness to cooperate at the outset. At no time prior to commencement of, or early in, the proceedings did Mr Houston inform Mr Fisher that he was bound by ethical and professional standards which prevented him from disclosing the source of the telephone number or that he could make disclosure, consistently with those principles, if Mr Fisher satisfied him that a response could not indirectly lead to identification of the informant. Mr Houston adopted an unnecessarily obstinate stance in the face of a reasonable request by Mr Fisher. For these reasons, I consider that proceedings were reasonably commenced. Mr Houston’s uncooperative acts continued throughout the period during which the proceeding was pending. He elected not to file an affidavit in July 2012 as ordered by the Court. He did so, belatedly, on 26 September 2012, less than one week prior to the hearing, in response to Mr Fisher’s second affidavit. In his affidavit, Mr Houston deposed that Mr Fisher’s telephone number had been provided to him by an individual who was acting in his or her personal capacity. Mr Houston received Mr Fisher’s written submissions on or shortly after 9 July 2012. Until that point he was entitled, having regard to the terms of the two solicitors’ letters to which he did not respond, to believe that what Mr Fisher wanted was the name of the individual who had made the disclosure. Thereafter, however, it was clear that Mr Fisher’s proposed action depended fundamentally on the capacity in which Mr Houston’s informant had acted. From this point on there was no reason why he could not have filed an affidavit which dealt with that issue in the terms contained in the affidavit which was filed on 26 September 2012.