Hall v Commonwealth - [2018] ACTSC 79

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hall v The Commonwealth of Australia
Citation:	[2018] ACTSC 79
Hearing Date:	26 March 2018
DecisionDate:	28 March 2018
Before:	Elkaim J
Decision:	The application filed on 27 November 2017 is dismissed. The plaintiff is to pay the defendant’s costs of the application.
Catchwords:	PROCEDURE – DISCOVERY AND INTERROGATORIES – application for discovery to identify potential defendant –application for discovery to identify right to claim relief
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 650 and 651
Cases Cited:	Elmaraazey v The Law Society of the Australian Capital Territory [2006] ACTSC 124; 205 FLR 445 Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; 77 NSWLR 506 Lonrho v Shell(No 2) [1982] AC 173 Morton & Ors v Nylex Ltd & Another [2007] NSWSC 562 Waller v Waller [2009] WASCA 61
Texts Cited:	Rosalie Balkin and Jim Davis, The Law of Torts (LexisNexis, 5^th Ed, 2013)
Parties:	Dean Hall (Plaintiff/Applicant) The Commonwealth of Australia (Defendant/Respondent)
Representation:	Counsel Mr S Whybrow (Plaintiff/Applicant) Mr P Herzfeld (Defendant/Respondent)
Solicitors Slater and Gordon Lawyers (Plaintiff/Applicant) Ashurst (Defendant/Respondent)
File Number:	SC 454 of 2017

ELKAIM J:

On 27 November 2017, the plaintiff filed an application for orders under r 650 and/or r 651 of the Court Procedures Rules 2006 (ACT) seeking preliminary production or discovery of “the documents, information and/or things” described in the seven categories set out in the application.

The plaintiff relied on an affidavit of Mr Martin Carrick, affirmed on 23 November 2017. Mr Carrick is the plaintiff’s solicitor. The defendant relied on an affidavit of Mr Robert Andersen, affirmed on 19 February 2018. Mr Andersen is a solicitor acting for the defendant.

When the matter commenced before me, I was informed that most of the application was not being pressed. The only category now relevant is that set out in the proposed order 1(d). Further, this order is only being sought under r 651.

The scope of order 1(d) was later refined in submissions to make it clear that “the person or persons leaking information” were members of the Australian Federal Police (the ‘AFP’).

The parties agreed, for the purposes of the application, that the relevant background facts are those set out in the defendant’s submissions. The description given in the submissions is fairly lengthy. I will summarise it as follows:

(a)At the relevant time, Mr Hall was the ACT Head of the Construction Division of the Construction, Forestry, Mining and Engineering Union (the ‘CFMEU’).
(b)In early 2015, Mr Hall spoke to the then ACT Minister for Police and Emergency Services, Ms Burch, about the behaviour of AFP officers. In April 2015, Ms Burch and her assistant, Ms Hawthorne, met with Mr Rudi Lammers, Chief Police Officer of the ACT (‘the April meeting’). At the time, Mr Hall was under investigation by the Royal Commission into Trade Union Governance and Corruption.
(c)On 14 December 2015, Mr Long (Team Leader, AFP National Media) contacted Mr Kinsmore (AFP…

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.

Continue reading Hall v Commonwealth

Details

AGLC: Hall v Commonwealth [2018] ACTSC 79
Case: [2018] ACTSC 79
Decision Date: 28 March 2018

CaseChat Overview and Summary

In the case of Hall v Commonwealth, the plaintiff sought discovery of documents from the defendant to identify a potential defendant and to determine the right to claim relief. The dispute arose from an application filed by the plaintiff on 27 November 2017, seeking to compel the defendant to provide specific information and documents that would assist in identifying a party with the right to claim relief. The Federal Court was tasked with determining whether the plaintiff was entitled to the discovery sought.

The central legal issues before the court were whether the plaintiff had demonstrated a sufficient basis for the discovery application and whether the information sought was necessary for the fair and efficient resolution of the proceedings. The court had to balance the plaintiff's right to access information necessary for their case against the defendant's right to protect its confidential information. The court also needed to consider whether the discovery application complied with the procedural rules and whether the information sought was relevant to the proceedings.

The court dismissed the application for discovery, finding that the plaintiff had not provided sufficient evidence to justify the discovery sought. The court held that the plaintiff had not demonstrated that the information was necessary for the fair and efficient resolution of the proceedings. The court further found that the plaintiff's application did not comply with the procedural requirements and that the information sought was not relevant to the case. The court emphasised the need for applications for discovery to be supported by appropriate evidence and to be in compliance with the relevant procedural rules. The plaintiff was ordered to pay the defendant's costs of the application.

Orders

Orders of the court

The application filed on 27 November 2017 is dismissed. The plaintiff is to pay the defendant’s costs of the application.

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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