Haile-Michael v Konstantinidis (No 3)

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FEDERAL COURT OF AUSTRALIA

Haile-Michael v Konstantinidis (No 3) [2012] FCA 53

Citation: Haile-Michael v Konstantinidis (No 3) [2012] FCA 53
Parties: DANIEL HAILE-MICHAEL, JIBRIL GOD, SHUAB ALI, MAKI ISSA, HAKIM HASSAN and MAGNUS KABA v NICK KONSTANTINIDIS, SHANE DAVIES, NICK O'BRIEN, PAUL GILMOUR, CHIEF COMMISSIONER OF VICTORIA POLICE and STATE OF VICTORIA
File number: VID 969 of 2010
Judges: JESSUP J
Date of judgment: 5 February 2013
Catchwords:

PRACTICE AND PROCEDURE – application for particular discovery under r 20.21 of Federal Court Rules 2011 – where documents sought by applicants not part of respondents’ case – where applicants claim that documents necessary to test respondents’ defence – where extensive discovery previously ordered

PRACTICE AND PROCEDURE – application to set aside subpoenas – whether application more appropriately dealt with by trial Judge

Legislation: Federal Court Rules 2011
Date of hearing: 4 February 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: CATCHWORDS
Number of paragraphs: 21
Counsel for the Applicants: Mr J Rapke SC, Mr E Nekvapil and Ms P Knowles
Solicitor for the Applicants: Arnold Bloch Leibler
Counsel for the First, Third, Fourth and Fifth Respondents: Mr R Niall SC with Ms R Sharp
Solicitor for the First, Third, Fourth and Fifth Respondents: Maddocks Lawyers
Counsel for the Eighth and Ninth Respondents: Dr G Lyon SC, Ms R Orr and Ms E Dias
Solicitor for the Eighth and Ninth Respondents: Norton Rose

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 969 of 2010

BETWEEN:

DANIEL HAILE-MICHAEL
Third Applicant

JIBRIL GOD
Fifth Applicant

SHUAB ALI
Eighth Applicant

MAKI ISSA
Twelfth Applicant

HAKIM HASSAN
Thirteenth Applicant

MAGNUS KABA
Fourteenth Applicant

AND:

NICK KONSTANTINIDIS
First Respondent

SHANE DAVIES
Third Respondent

NICK O'BRIEN
Fourth Respondent

PAUL GILMOUR
Fifth Respondent

CHIEF COMMISSIONER OF VICTORIA POLICE
Eighth Respondent

STATE OF VICTORIA
Ninth Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

5 FEBRUARY 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.By 4.15 pm on 7 February 2013, the eighth and ninth respondents file an affidavit or affidavits stating whether and if so which documents of the description referred to in the Schedule to this order are or have been in their control or in the control of either of them and, to the extent that any such document or documents has or have been but is or are no longer in his or its control, stating when the document or documents was last in his or its control and what became of the document or documents.

Schedule

Powerpoint presentations, seminar notes or papers that were prepared for, presented or handed out during multicultural awareness training presentations to officers of Victoria Police, referred to in the following paragraphs of the following outlines of evidence filed by the Eighth and Ninth Respondents in this proceeding:
(a)       paragraph 36 Outline of Evidence of Daniel Bonnici;
(b)       paragraph 33 Outline of Evidence of David Daly;
(c)       paragraph 9 Outline of Evidence of Natalie McFarlane;
(d)       paragraph 20 Outline of Evidence of Vince Zurzolo;
(e)       paragraph 9 Outline of…

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Details
Case
[2012] FCA 53
Decision Date

CaseChat Overview and Summary

The applicants, Haile-Michael and others, filed an interlocutory application in the Federal Court seeking particular discovery of certain documents from the respondents, including the eighth and ninth respondents, who are police officers and the Chief Commissioner of Victoria Police. The applicants sought documents related to multicultural awareness training presentations given to officers of Victoria Police, as referenced in the respondents’ outlines of evidence. The application came before the court as the applicants argued that the documents were necessary to test the respondents' defence.

The legal issues before the court were whether the documents sought were necessary to test the respondents' defence, and if so, whether the subpoenas issued to the respondents should be set aside. The court also had to consider whether the application to set aside the subpoenas was more appropriately dealt with by the trial judge.

The court found that the documents sought by the applicants were not part of the respondents' case, but were necessary to test the respondents' defence. The court ordered the eighth and ninth respondents to file an affidavit stating whether and if so which documents of the description referred to in the schedule to the order were or had been in their control. The court refused the relief sought in the applicants' interlocutory application, save as aforesaid, and ordered the applicants to pay the costs of the eighth and ninth respondents. The court also adjourned the further hearing of the interlocutory application filed on behalf of the eighth and ninth respondents, as well as the operation of the subpoenas dated 18 January 2013 addressed to Inspector Mark Doney and to Chief Commissioner Ken D Lay.

The court's orders included that by 4.15 pm on 7 February 2013, the eighth and ninth respondents file an affidavit or affidavits stating whether and if so which documents of the description referred to in the schedule to the order are or have been in their control or in the control of either of them and, to the extent that any such document or documents has or have been but is or are no longer in his or its control, stating when the document or documents was last in his or its control and what became of the document or documents. The court also ordered that the further hearing of the interlocutory application filed on behalf of the eighth and ninth respondents on 29 January 2013 be adjourned to 10.15 am on 11 February 2013, and that the costs of that application be reserved. Finally, the court ordered that to the extent they impose an obligation to produce documents, the operation of the subpoenas dated 18 January 2013 addressed to Inspector Mark Doney and to Chief Commissioner Ken D Lay be adjourned to 10.15 am on 11 February 2013.

Orders

Orders of the court

1. By 4.15 pm on 7 February 2013, the eighth and ninth respondents file an affidavit or affidavits stating whether and if so which documents of the description referred to in the Schedule to this order are or have been in their control or in the control of either of them and, to the extent that any such document or documents has or have been but is or are no longer in his or its control, stating when the document or documents was last in his or its control and what became of the document or documents.

Schedule

Powerpoint presentations, seminar notes or papers that were prepared for, presented or handed out during multicultural awareness training presentations to officers of Victoria Police, referred to in the following paragraphs of the following outlines of evidence filed by the Eighth and Ninth Respondents in this proceeding:

(a) paragraph 36 Outline of Evidence of Daniel Bonnici;

(b) paragraph 33 Outline of Evidence of David Daly;

(c) paragraph 9 Outline of Evidence of Natalie McFarlane;

(d) paragraph 20 Outline of Evidence of Vince Zurzolo;

(e) paragraph 9 Outline of Evidence of Nigel Howard.

2. Save as aforesaid, the relief sought in the applicant’s Interlocutory Application filed on 18 January 2013 be refused.

3. Subject to

(a) Order 10 made by the court on 8 April 11; and

(b) the right of the eighth and ninth respondents to invoke the operation of r 40.51(2)(d) of the Federal Court Rules 2011,

the applicants pay the costs of the eighth and ninth respondents of the applicants’ Interlocutory Application filed on 18 January 2013.

4. The further hearing of the Interlocutory Application filed on behalf of the eighth and ninth respondents on 29 January 2013 be adjourned to 10.15 am on 11 February 2013.

5. The costs of that application be reserved.

6. To the extent they impose an obligation to produce documents, the operation of the subpoenas dated 18 January 2013 addressed to Inspector Mark Doney and to Chief Commissioner Ken D Lay be adjourned to 10.15 am on 11 February 2013.

7. By 4.15 pm on 7 February 2013, the applicants file and serve an outline of the evidence proposed to be led from Senior Sergeant Craig Rhodes, Inspector Anthony Langdon, Inspector Mark Doney, Chief Commissioner Ken D Lay, Sergeant Joseph Herrech and Senior Constable Sahin Sahinkaya.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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