FWO v Devine Marine Group Pty Ltd
[2012] FMCA 1127
•26 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FWO v DEVINE MARINE GROUP PTY LTD & ORS | [2012] FMCA 1127 |
| PRACTICE & PROCEDURE – Discovery – legal professional privilege. |
| Corporations Act 2001 (Cth), s.9 Federal Court Rules 2011 (Cth), sub-rr.7.23 & 20.22 Federal Magistrates Act 1999 (Cth), sub-s.45 Federal Magistrates Court Rules 2001 (Cth), sub.rr.1.05, 7.23, 14.02 & 14.03 |
| R v Ronen & Ors (2004) 62 NSWLR 707 |
| Applicant: | FWO |
| First Respondent: | DEVINE MARINE GROUP PTY LTD |
| Second Respondent: | BRETT BARRY DEVINE |
| Third Respondent: | ARTHUR BOUCAUT-JONES |
| File Number: | ADG 105 of 2012 |
| Judgment of: | Simpson FM |
| Hearing date: | 26 October 2012 |
| Date of Last Submission: | 26 October 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 26 October 2012 |
| Settled on: | 27 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stratton-Smith |
| Solicitors for the Applicant: | Office of Fair Work Ombudsman |
| Counsel for the Respondents: | Mr Mitchell |
| Solicitors for the Respondents: | Corporate Network Legal Solicitors |
ORDERS
Pursuant to Sub-section 45 of the Federal Magistrates Act1999, the Court declares that it is appropriate in the interests of justice to allow discovery by the First Respondent of the categories of documents set out in Attachment A to this Application in a Case filed on 13 September 2012 (“the Application”).
Pursuant to Sub-rule 14.02 (2)(a) of the Federal Magistrate Court Rules 2001, the First Respondent, by its proper officer, or proper officers, whether already appointed or to be appointed, make disclosure of the categories of documents set out in Attachment A (Part 1) to the Application by:
(a)Filing and serving an Affidavit or Affidavits of documents within 14 days of these orders; and
(b)Making the disclosed documents available for inspection and copying by the Applicant at a time and place to be agreed between solicitors for the parties.
Order 1 of the orders of 19 September 2012 suspending the operation of Order 3 of the Orders of 18 June 2012 is dismissed with the intention that the matter proceed to mediation at the earliest opportunity.
Further consideration of this matter is adjourned to 9.15am on 20 February 2013 before FM Simpson for directions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 105 of 2012
| FWO |
Applicant
And
| DEVINE MARINE GROUP PTY LTD |
First Respondent
| BRETT BARRY DEVINE |
Second Respondent
| ARTHUR BOUCAUT-JONES |
Third Respondent
REASONS FOR JUDGMENT
(Settled from transcript of ex-tempore reasons)
I have before me an Application in a Case filed by the applicant on 13 September 2012 seeking certain orders for discovery as follows:
“1.That this application be returnable on 19 September 2012 at 9.30am, contemporaneously with the directions hearing listed in this matter at that time.
2.Pursuant to sub-section 45 of the Federal Magistrates Act 1999, the Court declares that it is appropriate in the interests of justice to allow discovery by the:
(a) First and Second Respondent of the categories of document set out in Attachment A to this Application; and
(b) Third Respondent of the categories of document set out in Attachment B to this Application.
3.Pursuant to sub-rule 14.02(2)(a) of the Federal Magistrates Court Rules 2001, the Respondents make disclosure of the categories of document set out in Attachment A (Part1) and B (Part 1) to this Application (as applicable) by:
(a) filing and serving an affidavit of documents within 14 days of these orders;
(b) making the disclosed documents available for inspection and copying by the Applicant at a time and place to be agreed between solicitors for the parties.
4.Pursuant to sub-rule 7.23(2) of the Federal Court Rules 2011 (having application pursuant to sub-rule 1.05(2) of the Federal Magistrates Court Rules 2001), the Respondents make discovery of the documents set out in Attachment A (Part 2) and Attachment B (Part 2) to this Application (as applicable) by:
(a) filing and serving an affidavit of documents within 14 days of these orders;
(b) making the discovered documents available for inspection and copying by the Applicant at a time and place to be agreed between solicitors for the parties.”
In argument earlier today, I explained why I was not prepared to make orders as sought in paragraph 4 of the orders sought. I do not propose to elaborate on those reasons.
The remaining paragraphs are paragraphs 2 and 3 of the orders sought.
For the reasons that follow, I have come to the conclusion that it is in the interest of justice to make orders for discovery as sought in paragraphs 2 and 3, but only in relation to the first respondent. I propose to make an order that pursuant to sub-s.45 of the Federal Magistrates Act 1999, the Court declares that it is appropriate, in the interests of administration of justice, to allow discovery by the first respondent of the categories of documents set out in Attachment A to this application. Proposed order 3 is in these terms:
“Pursuant to sub-rule 14.02(2)(a) of the Federal Magistrates Court Rules 2011:
…the respondents make disclosure of the categories of document set out in Attachment A (Part 1) and B (Part 1) to this application (as applicable) by:
(a)filing and serving an affidavit of documents within 14 days of these orders; and
(b)making the disclosed documents available for inspection and copying by the applicant at a time and place to be agreed between the solicitors for the parties.”
In the respondent’s Outline of Submissions, it was put that the first respondent is a ‘one-person company’. The second respondent is the secretary and sole director of the first respondent. The second respondent holds 170 of the 200 issued shares in the first respondent.
Pursuant to Federal Magistrates Court Rule 14.03, any discovery would be by way of affidavit of documents.
Federal Court Rule 20.22 (which may apply pursuant to Federal Magistrates Court Rule 1.05(2)) provides that, firstly, that an affidavit of documents filed by a party that is a corporation is to be sworn by an officer of the corporation. Federal Court Rule 20.22(1)(c) is referred to. Secondly, the person making the affidavit must know the facts to make an affidavit. Federal Court Rule 20.22(3) is referred to. It is further submitted that “officer” is not defined in the Federal Court Rules but is defined in s.9 of the Corporations Act 2001.
It is submitted on behalf of the first respondent that there is no one within the Corporations Act definition of “officer” with the first respondent who could comply with any order for discovery or be able to swear an affidavit of documents for the first respondent other than the second respondent. It was further submitted that there is no person other than the second respondent who would know the facts necessary to swear the affidavit of documents. In these circumstances, it is submitted, on behalf of the respondents, that the Court should not make an order for discovery against the first respondent where it might require that the second respondent incriminate himself or would have the effect of denying the second respondent’s privilege.
The order that I propose to make will not infringe the second (or for that matter, the third) respondent’s privilege in not incriminating themselves and making themselves liable for a penalty. I in particular refer to paragraphs 36, 37 and 38 of the case of R v Ronen & Ors (2004) 62 NSWLR 707, a decision of Spigelman CJ, in which his Honour said this:
“The case law on discovery, interrogatory subpoenas and statutory notices to produce appear to coincide in concluding that the “proper officer” is the person who is in or able to be placed in the best position to obey the order of the Court or statutory requirement. A number of propositions emerge from this body of case law.”
I see little point in repeating all that follows. His Honour makes the point that the proper officer can be any number of persons. In the fifth of the dot points in the passage referred to it says that:
“An officer including a proper officer need not be an employee of the company.”
It points out that:
“Often the company’s secretary is the best person to be named or appointed by the company, but any other person may be named or appointed if that person can more effectively supply the information.”
There’s no requirement that it be the second respondent who has any involvement in the matter. Other person or persons can quite adequately swear the affidavit on the company’s behalf and I do not believe there will be any compromise of the respondent’s privilege.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Simpson FM
Date: 27 November 2012
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