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 ApplicantJIBRIL GOD
Fifth ApplicantSHUAB ALI
Eighth ApplicantMAKI ISSA
Twelfth ApplicantHAKIM HASSAN
Thirteenth ApplicantMAGNUS KABA
Fourteenth ApplicantAND: NICK KONSTANTINIDIS
First RespondentSHANE DAVIES
Third RespondentNICK O'BRIEN
Fourth RespondentPAUL GILMOUR
Fifth RespondentCHIEF COMMISSIONER OF VICTORIA POLICE
Eighth RespondentSTATE 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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- Case
- [2012] FCA 53
- Decision Date
CaseChat Overview and Summary
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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