Hadid, Albert v Lenfest Communications Inc - [1998] FCA 470

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – claim of public interest immunity – principles to be applied in determining whether claim upheld – “balancing exercise” between injury to the public interest involved in disclosure as against the impairment of the administration of justice if the documents were withheld.

PRACTICE AND PROCEDURE – subpoenas – inspection of documents produced on subpoena – procedure to be adopted by a court in determining whether to permit inspection.

Sankey v Whitlam (1978) 142 CLR 1, cited
Alister v The Queen (1984) 154 CLR 404, cited
Zarro v Australian Securities Commission (1992) 36 FCR 40, cited
Somerville v Australian Securities Commission (1995) 60 FCR 319, applied
Spargos Mining NL v Standard Chartered Aust. Ltd(No. 1) (1989) 1 ACSR 311, applied
Waind v Hill [1978] 1 NSWLR 372, applied
Maddison v Goldrick [1976] 1 NSWLR 651, referred to

ALBERT HADID v LENFEST COMMUNICATIONS INC. and GERRY LENFEST and BAIN CAPITAL MARKETS LIMITED and WAYNE BURT and AUSTRALIS MEDIA LIMITED and RODNEY PRICE.

NG 36 of 1995

LEHANE J
SYDNEY
7 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 36 of 1995

BETWEEN:

ALBERT HADID
APPLICANT

AND:

LENFEST COMMUNICATIONS INC.
FIRST RESPONDENT

GERRY LENFEST
SECOND RESPONDENT

BAIN CAPITAL MARKETS LIMITED
THIRD RESPONDENT

WAYNE BURT
FOURTH RESPONDENT

AUSTRALIS MEDIA LIMITED
FIFTH RESPONDENT

RODNEY PRICE
SIXTH RESPONDENT

LENFEST COMMUNICATIONS INC.
CROSS CLAIMANT

ALBERT HADID
CROSS RESPONDENT

JUDGE:

LEHANE J

DATE OF ORDER:

7 MAY 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The claim of the Australian Securities Commission of public interest immunity is overruled in respect of the documents referred to as Items 28, 29 and 30 in paragraph 7 of the affidavit of Peter Noel Riordan sworn on 23 February 1998 (the Riordan affidavit).
The parties and their legal representatives have access to the documents referred to in Order 1.
The claim of the Australian Securities Commission of public interest immunity is upheld in respect of the documents referred to as Items 6 and 26 in paragraph 7 of the Riordan affidavit.
The parties may not have access to, or inspect, Section A or Section E of the document produced by the Australian Securities Commission in accordance with a subpoena dated 6 January 1998 and identified in paragraphs 2, 4 and 5 of the affidavit of Timothy Graham Phillips sworn on 28 January 1998.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 36 of 1995

BETWEEN:

ALBERT HADID
APPLICANT

AND:

LENFEST COMMUNICATIONS INC.
FIRST RESPONDENT

GERRY LENFEST
SECOND RESPONDENT

BAIN CAPITAL MARKETS LIMITED
THIRD RESPONDENT

WAYNE BURT
FOURTH RESPONDENT

AUSTRALIS MEDIA LIMITED
FIFTH RESPONDENT

RODNEY PRICE
SIXTH RESPONDENT

LENFEST COMMUNICATIONS INC.
CROSS CLAIMANT

ALBERT HADID
CROSS RESPONDENT

JUDGE:

LEHANE J

DATE:

7 MAY 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The Australian Securities Commission (ASC) has produced a number of documents to the Court in accordance with subpoenas. The ASC objects to inspection by the parties of certain of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] FCA 470
Decision Date: 7 MAY 1998

CaseChat Overview and Summary

In the case of Hadid, Albert v Lenfest Communications Inc, the dispute centred on the production of certain documents and their confidentiality, involving the Australian Securities Commission and Lenfest Communications Inc. The case was heard by the Federal Court of Australia. The primary issue before the court was whether specific documents were subject to public interest immunity and, therefore, should not be disclosed. The Australian Securities Commission argued for immunity over certain documents, while Lenfest Communications Inc sought access to these documents for their legal proceedings.

The court had to determine whether the documents in question warranted protection under public interest immunity, a principle that allows the withholding of information if its disclosure would harm the public interest. The court examined the nature of the documents and the potential impact of their disclosure on the public interest. The documents in dispute were identified in the Riordan affidavit and a subpoena dated 6 January 1998. The court assessed the claims of immunity for each document individually, weighing the need for confidentiality against the rights of the parties to access relevant information.

In its reasoning, the court found that while some documents warranted protection under public interest immunity, others did not. Specifically, the court overruled the claim of immunity for documents referred to as Items 28, 29, and 30 in the Riordan affidavit, allowing the parties access to these documents. Conversely, the court upheld the claim of immunity for documents referred to as Items 6 and 26 in the same affidavit, prohibiting their disclosure. Additionally, the court ruled that Section A and Section E of a document produced in response to a subpoena could not be accessed or inspected by the parties. The orders reflected these findings, detailing which documents could be disclosed and which sections of the subpoenaed document remained confidential.

Orders

Orders of the court

The claim of the Australian Securities Commission of public interest immunity is overruled in respect of the documents referred to as Items 28, 29 and 30 in paragraph 7 of the affidavit of Peter Noel Riordan sworn on 23 February 1998 (the Riordan affidavit).

The parties and their legal representatives have access to the documents referred to in Order 1.

The claim of the Australian Securities Commission of public interest immunity is upheld in respect of the documents referred to as Items 6 and 26 in paragraph 7 of the Riordan affidavit.

The parties may not have access to, or inspect, Section A or Section E of the document produced by the Australian Securities Commission in accordance with a subpoena dated 6 January 1998 and identified in paragraphs 2, 4 and 5 of the affidavit of Timothy Graham Phillips sworn on 28 January 1998.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 36 of 1995

BETWEEN:	ALBERT HADID APPLICANT
AND:	LENFEST COMMUNICATIONS INC. FIRST RESPONDENT GERRY LENFEST SECOND RESPONDENT BAIN CAPITAL MARKETS LIMITED THIRD RESPONDENT WAYNE BURT FOURTH RESPONDENT AUSTRALIS MEDIA LIMITED FIFTH RESPONDENT RODNEY PRICE SIXTH RESPONDENT LENFEST COMMUNICATIONS INC. CROSS CLAIMANT ALBERT HADID CROSS RESPONDENT
JUDGE:		LEHANE J
DATE OF ORDER:		7 MAY 1998
WHERE MADE:		SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 36 of 1995

JUDGE:	LEHANE J
DATE:	7 MAY 1998
PLACE:	SYDNEY