Hudson v Whalan

[1999] FCA 200

FEDERAL COURT OF AUSTRALIA

Hudson v Whalan [1999] FCA 200

ROBERT HUDSON JNR V STEPHEN WILLIAM MICHAEL WHALAN & THOMAS JAMES DONALD

NG 931 OF 1998

SACKVILLE, NORTH & HELY JJ
SYDNEY

3 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 931 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ROBERT HUDSON JNR
Appellant

AND:

STEPHEN WILLIAM MICHAEL WHALAN
First Respondent

THOMAS JAMES DONALD
Second Respondent

JUDGE:	SACKVILLE, NORTH & HELY JJ
DATE:	3 MARCH 1999
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1.   No order for costs be made in respect of the appearance by Gosford City Council on 3 March 1999 in relation to the appellant’s application for access to documents in respect of which the Council has claimed privilege.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 931 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ROBERT HUDSON JNR
Appellant

AND:

STEPHEN WILLIAM MICHAEL WHALAN
First Respondent

THOMAS JAMES DONALD
Second Respondent

JUDGE:	SACKVILLE, NORTH & HELY JJ
DATE:	3 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

THE COURT

1. The appellant has sought to inspect certain documents produced to the Court by Gosford City Council (“the Council”) in response to the subpoena issued on 18 January 1999, notwithstanding that the Council has claimed client legal privilege in respect of those documents.  Mr Newton has appeared on behalf of the Council, in response to an invitation from the Court.  The method adopted by the Council to claim privilege was to place the relevant documents in envelopes and endorse them with a notation indicating that privilege has been claimed.   The Council has not filed any affidavits substantiating its claim to privilege.

2. Pending the arrival of Mr Newton, the Court, with the Council’s consent, inspected the documents in respect of which privilege has been claimed.   The bulk of those documents are, on their face, privileged, and the remaining documents are irrelevant to the present proceedings.  After Mr Newton announced his appearance, the appellant indicated that he no longer sought access to the documents in respect of which the Council claims privilege.

3. In these circumstances, Mr Newton made an application for the costs against the appellant in relation to the Council’s appearance at these proceedings.   The Court is of the view that, notwithstanding the appellant’s change of mind, had the appropriate procedures been followed in respect of the subpoenaed documents before the Registrar, or at least at a much earlier stage than today, the difficulty and delay that has been experienced today would not have been encountered.   It was open to the Council, if it wished to press a claim that documents were privileged, to file either a notice of motion supported by an affidavit in accordance with the Federal Court Rules pressing its claim for privilege or, in any event, an affidavit in which the claim for privilege was set out and particularised.

4. This never having been done, it is perhaps not surprising that the Court has had to deal with matters that would much better have been dealt with earlier in the proceedings and before a Registrar.   In those circumstances, the Court takes the view that no order for costs should be made in favour of the Council in respect of the appellant’s application for access to documents in respect of which privilege was claimed.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Sackville, North & Hely JJ.

Associate:

Dated:             3 March 1999

Counsel for the Appellant:	Self represented
Counsel for the Respondent:	Ms R Winfield
Solicitor for the Respondent:	Tonkin Drysdale Partners
Counsel for Gosford Council	Mr P Newton
Date of Hearing:	3 March 1999
Date of Judgment:	3 March 1999