Hadid, Albert Lenfest Communications Inc & Ors

[1995] FCA 1069

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 36 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:ALBERT HADID

Applicant

AND:LENFEST COMMUNICATIONS INC

First Respondent

GARY LENFEST

Second Respondent

BAIN CAPITAL MARKETS LIMITED

Third Respondents

WAYNE BURT

Fourth Respondent

AUSTRALIS MEDIA LIMITED
  Fifth Respondent

RODNEY PRICE
  Sixth Respondent

AND:LENFEST COMMUNICATIONS INC

Cross-Claimant

ALBERT HADID
  Cross-Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    21 DECEMBER 1995

REASONS FOR JUDGMENT

Before the Court were two motions, the one brought by the Secretary of the Department of Communications and the Arts in respect of a subpoena issued at the instance of the third and fourth respondents, the other a motion brought by the first and second respondents that they be given access to the documents when produced on the subpoena addressed to the Department of Communications and the Arts.  In the result I have ordered that limited access of the material be granted

not merely to the legal representatives but also to experts, subject to signing of appropriate undertakings as to confidentiality.

The Department had not objected to the material being produced to legal representatives on appropriate undertakings, but had objected to a wider form of access.  There is now a dispute between the parties as to the costs of these motions.  Essentially the Department of Communications and the Arts has been unsuccessful in that it had taken the view that public interest immunity required access not being granted to experts.  There is some dispute on factual matters as to what happened between solicitors, and particularly as to the circumstances where the matter initially came before a Registrar, was then adjourned before me to another date when it was not dealt with and application was made to have the matter heard at an earlier time on behalf of the first and second respondents so as to avoid, if possible, the timetable which had been set being breached.

I have not sought to investigate such factual disputes because it seems to me that that will just incur yet further costs between the parties.  In essence the parties, other than the Department, are content that an order be made that each party pay its own costs.  The Department, on the other hand, wishes to have the cost thrown away by virtue of the fact that half a day at least was spent, apparently, in communications between solicitors on matters concerned with what date the matter was to be heard.

In all the circumstances it seems to me that the appropriate order is that each party pay its own costs.  I could, of course, have made an order that the Department pay the costs generally, and some alternative order on the other side in respect of some costs that may have been thrown away.  Such an order would ultimately be more complicated and would require the parties on both sides to go to taxation in respect of their respective costs.  It is simpler to make no order as to costs.  In so saying, of course, I do not deal with the costs of the Department's compliance with the subpoena, which is a different matter altogether.

I would accordingly order that the material in question be supplied to the experts listed in a schedule of nominated experts attached to a draft form of undertaking as to confidentiality upon those experts executing an undertaking in the form of the draft undertaking.  I have, for identification, initialled and dated the two documents.  I would make no order as to costs of any of the parties in respect of the two motions to which I have referred and I will make an order in the terms of paragraph 1 of the short minutes of order which I made on 14 December in respect of a report of Mr Lonnegan for access to be given to each of the reports of other experts.
I direct that:

(1)The reasonable costs of the Department in complying with the subpoena be borne by the third and fourth respondents.

1. The applicant to file and serve any affidavit evidence in support of the applicant's motion for access to the reports on or before 22 January 1996 and the respondents to file and serve any affidavits upon which they propose to rely on or before 5 February 1996.

1. The respondents to notify any third parties whose information has been used for the purpose of preparing the report, where that information on its face would appear to be confidential, on or before 25 January 1996, indicating to them that if they choose to oppose the application by the applicant for access they should appear on 8 February 1996.

I certify that this and the
preceding three (3) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date: 

Counsel and Solicitors       R Dubler instructed by

for Applicant:              Corrs Chambers Westgarth

Counsel and Solicitors       R Smith instructed by

for First and Second         Clayton Utz

Respondents:                

Counsel and Solicitors       J Nicholas instructed by

for Third and Fourth         Phillips Fox

Respondents:

Solicitors for Fifth         M Tirabosco of

and Sixth Respondents:       Atanaskovic Hartnell

Counsel and Solicitors       E Wilkins instructed by

for the Department of        Australian Government Solicitor

Communications and the
Arts:

Date of Hearing:            21 December 1995

Date Judgment Delivered:     21 December 1995