In the matter of Clarecastle Pty Ltd (in liq)
[2011] NSWSC 553
•08 June 2011
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Clarecastle Pty Ltd (in liq) [2011] NSWSC 553 Hearing dates: 27 May 2011 Decision date: 08 June 2011 Jurisdiction: Equity Division - Corporations List Before: Ward J Decision: Orders made in relation to conduct of examinations, scope of documents to be produced under orders for production and costs
Catchwords: CORPORATIONS - whether order for production should be limited to exclude documents subject to implied undertaking or otherwise - HELD - order for production overrides implied undertaking - order for production limited to exclude documents obtained under the Mutual Assistance in Criminal Matters Act 1987 (Cth) in the absence of consent from Attorney-General to their production - COSTS - Applicants to pay costs of the liquidators Legislation Cited: Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Mutual Assistance in Criminal Matters Act 1987 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Cadbury Schweppes Pty Limited v Amcor Ltd [2008] FCA 398; (2008) ATPR 42-224
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hearne v Street (2008) 235 CLR 125
In the matter of Clarecastle Pty Ltd (in liq) [2011] NSWSC 490
Patrick v Capital Finance Pty Limited (No 4) [2003] FCA 436
Re BPTC Ltd (in liq) (No. 3) (1993) 29 NSWLR 708
Taylor v Director of the Serious Fraud Office [1998] UKHL 39; [1998] 4 All ER 801Texts Cited: Heydon J D, Cross on Evidence (8th edn) Category: Procedural and other rulings Parties: Ozem Kassem and Bruno Secatore as liquidators of Clarecastle Pty Ltd (in liq) (Plaintiffs/Respondents)
Ross Seller, Patrick McCarthy, Grant McKenzie Pty Ltd (Applicants)Representation: Counsel
M Condon (Plaintiffs/Respondents)
Solicitors
Sage Solicitors (Plaintiffs/Respondents)
Atanaskovic Hartnell (Applicants)
File Number(s): 10/158014
Judgment
HER HONOUR : On 25 May 2011, I published my reasons for judgment ( [2011] NSWSC 490) on an application to stay certain examination summonses and orders for production that had been issued at the instance of Messrs Ozzem Kassem and Bruno Secatore (in their capacity as liquidators of Clarecastle Pty Limited (in liq)) against Mr Ross Seller and Mr Patrick McCarthy (as well as an order for production of documents served on Grant McKenzie Pty Ltd) in relation to the examinable affairs of Clarecastle Pty Ltd (in liq).
I refused to stay the examination summonses (or the orders for production) but I considered it appropriate for orders to be made in relation to the holding of the examinations in private and for the preservation of the confidentiality of the transcript of those examinations until the hearing of criminal proceedings against the examinees which are listed to commence in October this year. I gave the parties an opportunity to make submissions as to the form of those orders with a view to ensuring the privacy of the examinations pending the criminal proceedings.
When the matter came back before me on 27 May 2011 there was agreement as between the liquidators and the Applicants as to various orders to give effect to my reasons but there was no agreement in relation to two matters:
(i) the ambit of the orders for production (Mr Castle, for the Applicants, seeking that those orders be limited in two respects - first, to exclude production of the Crown brief in the criminal hearings and, secondly, to require the production of documents only in relation to three specific factual issues); and
(ii) who should bear the costs of the application as between the Applicants and the liquidators.
I heard brief oral submissions on those matters and gave leave for written submissions to be served on one particular issue (the interaction between the implied undertaking and the orders for production) that being raised by Mr Castle as supporting the application for the exclusion of production of the Crown brief.
I have considered the supplementary submissions served on 1 June 2011 by the liquidators in relation to the import of the implied undertaking, and the submissions served in reply on 3 June 2011 by Mr Castle, and now make final orders in relation to the stay application determined on 25 May 2011. The relevant examinations are scheduled for 16 and 17 June 2011, hence the need for any restriction on the scope of the Orders for Production to be determined as soon as possible.
The background to the matter is set out in my earlier reasons and I do not repeat that here, save to record again that Mr Seller is the solicitor who had advised Clarecastle in relation to one of the transactions the subject of the liquidators' investigation into Clarecastle's affairs (the Scotch Whisky Scheme); Grant McKenzie Pty Limited is a firm that had entered into a management agreement with Clarecastle in respect of that transaction; Mr McCarthy is the sole director of Grant McKenzie and the person through whom (according to the liquidators' enquiries) communications in relation to the Scotch Whisky Scheme on behalf of Clarecastle with other participants occurred; and that the relevant events in which those parties were involved date back to early 2001. Where applicable, I use the same abbreviations adopted in my earlier reasons.
(i) Should there be a limit placed on the orders for production?
The transactions involved in the Scotch Whisky Scheme have been the subject of a lengthy investigation by the Australian Tax Office and the Australian Crime Commission (and that investigation has involved enquiries through regulatory bodies overseas, the transactions in question having involved a number of entities based overseas).
The orders for production seek a broad range of documents over the period from 1 January 2001 to 5 April 2007, recording evidencing or relating to Clarecastle's interest in the Scotch Whisky Scheme, the value of that interest, communications with Chambers Finance or Speyside Distillery Co Ltd regarding that interest, communications between Clarecastle and Grant McKenzie with respect to that interest, the Management Agreement with Grant McKenzie (including entry into it and its operation) and the loan agreement with Chambers Finance.
What is sought by the limitation on the orders for production now propounded by Mr Castle are limitations broadly in two respects: first, a limitation as to the general scope of the orders and, second, a limitation by reference to the source of the documents.
- Scope of the orders generally
Mr Castle seeks an order that production be limited to those documents relevant to three broad topics: how and where Clarecastle's money was paid in relation to the scheme; whether Chambers Finance in fact lent money to Clarecastle in relation to the scheme; and the location and value of any whisky belonging to Clarecastle in relation to the scheme. (He also, but this is less contentious, seeks an order permitting the documents to be redacted to remove any reference to any other participant in the scheme and that the documents to be produced be limited to those relevant to the particular scheme in which Clarecastle was a participant - there having been more than one Scotch Whisky Scheme in which the examinees were involved).
Mr Castle noted that orders for production are issued more narrowly than subpoenas ( Re BPTC Ltd (In Liq.)(No. 3) (1993) 29 NSWLR 708) because the production of documents are limited to those ancillary to the purpose for which the examination are held, namely to collect information, and that they are issued pursuant to the power conferred by s 597(9) of the Corporations Act 2001 (Cth) and Part 34 of the Uniform Civil Procedure Rules , rather than the general subpoena power under Part 33. Thus Mr Castle submitted that it would be appropriate (the liquidators having established the bounds of relevance of the examination in paragraph 12 of Mr Kassem's affidavit of 24 September 2010) that the directions given in relation to the production of the documents be limited accordingly.
The context in which the application came before me was that the orders for production had already been issued (so that there has already been an exercise of the Court's discretion as to the potential relevance of the documents to the examinable affairs of the corporation) and what was being sought was that there be a stay pending the criminal proceedings being heard. While I had noted in my earlier reasons a concern as to whether the call for communications between Clarecastle and Grant McKenzie in relation to the company's interest in the scheme over the period from 2001 to 2007 might be regarded as too broad (since it might be that there would be a volume of communications of an administrative matter that of themselves would shed very little light on the circumstances of entry into the transaction or the current location or status of the whisky), and had indicated that if that were to be the case then this might be a basis to limit the scope of the order for production to address that situation, there was no evidence as to whether this was in fact the case, I had concluded that the categories specified in the Order for Production were of relevance and did not appear to be oppressive on their face. I remain of that view. I am not persuaded that the scope of the orders for production are too broad having regard to the issues that the liquidators wish to investigate and hence I do not accept that the limitation of the orders to documents in relation to particular factual issues is now appropriate (absent any agreement by the liquidators so to limit the orders).
There was no additional evidence put before me to suggest that compliance with the orders for production would be oppressive by virtue of the volume of material required to be produced in answer to the orders (other than by reference to the Crown brief). Counsel for the liquidators, Mr Condon, submitted that the Applicants should not be permitted in effect to reopen the findings made in relation to the ambit of the orders for production in this regard and I agree.
- Source of documents
The second aspect of the limitations now sought to be placed on the production of the documents relates to the material contained in the Crown brief served on the examinees in the context of the forthcoming criminal proceedings.
On the question of discretion, it is submitted by Mr Castle that the liquidators ought not have access to the Crown brief provided to Messrs Seller and McCarthy. First, it is said that there is potentially ample material available to the liquidators from Mr McCarthy's own files (Mr McCarthy having 75 volumes of material which may be relevant to the Scotch Whisky Schemes); second, that Crown briefs ought not as a matter of policy be disclosed to third parties (so as to give effect to the implied undertaking recognised in Hearne v Street (2008) 235 CLR 125 and Taylor v Director of the Serious Fraud Office [1998] UKHL 39; [1998] 4 All ER 801 at 810-811); third, because the Commonwealth DPP has already notified the liquidators that it objects to the production of those documents on public interest grounds (as noted in the affidavit of Mr Kassem sworn 24 September 2011 at [11]; and, fourth, because elements of that brief include material obtained under the Mutual Assistance in Criminal Matters Act 1987 relying on s 43B of the Act which provides that material obtained under that Act may not be used (and for the purposes of the Act disclosure amounts to a use of that material) intentionally for any purpose other than the proceeding or investigation in relation to a criminal matter for the purposes of which the material was requested without the approval of the Attorney-General.
The fact that Mr McCarthy has other material which might satisfy the liquidators' requirement to obtain information in preparation for his examination does not seem to me to provide a reason for limitation of the order for production in circumstances where I have already held that the orders are not oppressive. (It was not suggested that the Crown brief contained no material other than that which would already be produced by Mr McCarthy, for example.)
What was of concern to me, however, was the suggestion by Mr Castle that compliance with the orders (insofar as this required the production of the Crown brief in the criminal proceedings) would be inconsistent with the implied undertaking not to use documents obtained under the Court's compulsory processes for purposes collateral to the criminal proceedings in which the documents were served and/or would cause a breach of obligations of confidentiality owed by or to the relevant investigatory bodies under international co-operation and assistance arrangements. Mr Castle emphasised that the Crown DPP has already refused a request by the liquidators for access to such material on public policy grounds. (Mr Condon, however, informed me that his instructing solicitors had been advised by the office of the Commonwealth DPP that the director is satisfied with the formulation of the proposed orders for production and the regime contemplated therein for documents over which privilege may be claimed.)
By affidavit sworn 27 May 2011, Mr Kenneth Wang'ondu Gitahi, a solicitor employed by Atanaskovic Hartnell, the solicitors acting for the Applicants, has deposed that the criminal proceedings relate to charges for conspiracy to defraud the Commonwealth under ss 29D and 86(1) of the Crimes Act 1914 (Cth) and conspiracy dishonestly to influence a Commonwealth official under s 135.4 of the Criminal Code Act 1995 (Cth). Mr Gitahi deposes that the criminal proceedings appear to relate to alleged misrepresentations to ATO officers in relation to schemes for the manufacture of single malt Scotch whisky in 1999, 2000 and 2001. Clarecastle was an investor in only one of those 3 schemes.
In that regard, Mr Condon confirmed that the liquidators have no objection to the production being limited to documents relating to the particular Scotch Whisky Scheme in which Clarecastle was involved and, at least in the first instance, to the redaction of names of others involved in the scheme (who presumably might also be the subject of criminal proceedings).
Atanaskovic Hartnell has acted for both Mr Seller and Mr McCarthy in relation to the criminal proceedings. (From 14 March 2011, it has ceased to act for Mr McCarthy in those proceedings.) Mr Gitahi deposes that 95 folders of material in relation to the criminal proceedings were served on Atanaskovic Hartnell on 26 November 2009 (the Hand Up Brief) and 32 folders of documents on 25 August 2010 (the Committal Brief). Those 32 folders, together with 9 folders comprising volume 7 of the Hand Up Brief and a statement with annexures dated 30 June 2010 of an ATO officer, are said to have formed the Crown brief of evidence for the committal hearing on 22-25 November 2010. Of the 95 folders, Mr Gitahi says that 27 (comprising volume 10 of the Hand Up Brief) contain material obtained under the Mutual Assistance in Criminal Matters Act 1987 (Cth). Of the 32 folders, he says that 11 (comprising volumes 19-25, 29-32) of the Committal Brief also contain information obtained under that Act.
Therefore, the relevant issues to consider in relation to the second aspect of the proposed limitations are the import of the implied undertaking not to use documents obtained in the course of compulsory litigious processes for collateral purposes and the application of s 43B of the Mutual Assistance in Criminal Matters Act .
Mr Castle notes that the implied undertaking amounts to a substantive rule of law (as so held in Hearne v Street ) that is equally applicable in the criminal context (relying on Taylor ). I accept that this is the case. However, as Mr Condon submits, it is recognised that the implied undertaking may give way to other duties, including the obligation to comply with a summons for production (referring to Heydon J D's Cross on Evidence (8 th edn) at [25055] fn 142). Indeed the statement of the principle in Hearne v Street itself contemplates that the implied undertaking may be overridden by the leave of the court (see Kirby P, as his Honour then was, at [96]).
Reference was made by Mr Condon to what was said in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 by Mason CJ (with whom Dawson and McHugh JJ agreed) stated:
It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes . No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection , but that circumstance is not a reason for denying the existence of the implied obligation. (my emphasis)
In Cadbury Schweppes Pty Limited v Amcor Ltd [2008] FCA 398; (2008) ATPR 42-224) Gordon J (in proceedings involving an application for the imposition of penalty orders under the Trade Practices Act ) considered the import of the implied undertaking in the context of an application by the Australian Competition and Consumer Commission for an order that documents generated in a collusive price fixing case not be produced on discovery in other proceedings. Her Honour said at [11] - [13]:
The balance of the argument proceeded on the footing that the critical question is whether Visy is to be released from its implied undertaking.
The ACCC placed heavy emphasis on the proposition that no case could be found in which a party had been released from the implied undertaking in circumstances analogous to these. That submission may be accepted but it does not lead to the conclusion asserted by the ACCC. Two points are to be made about the absence of authority directly on point. First, the absence of any decided case is not conclusive of the issue. But secondly, and more importantly, the absence of any decided case points to the importance of identifying accurately the question which now arises. At first sight, the question requires the resolution of what appear to be inconsistent obligations - the obligation to use the documents only for the purposes of the ACCC proceeding in which they were compulsorily produced with the obligation to produce for the inspection of opposite parties in another proceeding all discoverable documents that are not subject to a valid claim of privilege.
However, the resolution of any tension between what would otherwise be competing and inconsistent obligations, is readily apparent; resolution lies in properly identifying the contents of the implied undertaking. In particular, it is necessary to recognise that the undertaking impliedly given in one proceeding not to use documents compulsorily produced in that proceeding except for the purposes of that proceeding is necessarily subject to other requirements of the law. So to take what may be a clearer example of the limits of the undertaking, the implied undertaking given in one proceeding would provide no answer to a subpoena for production of these documents in another proceeding. When a party is subpoenaed to produce documents obtained in another proceeding, it is no answer to say that "I am subject to an undertaking about how I may use these documents". The party's undertaking in the first proceeding restricts the uses to which that party may choose to put the documents. But the undertaking is no answer to otherwise valid compulsive processes of law: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32 36-37 and 46.
...See also Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 at [15]-[22]. Accordingly, Visy's implied undertaking in the ACCC proceeding is no answer to its discovery obligations in these proceedings. (my emphasis)
On appeal, the Full Court (2009) 174 FCR 547 at [47] (Mansfield, Kenny and Middleton JJ) observed that "The rationale for the implied undertaking arises because of the coercive nature of the court process and its impact upon the citizen. It is a legal obligation which arises by operation of law. It is an obligation the court has the right to control and can modify or release a party to the litigation or third party therefrom" (citing Hearne ) (my emphasis)
In Patrick v Capital Finance Pty Limited (No 4) [2003] FCA 436, to which Gordon J had referred in the Cadbury Schweppes case , Tamberlin J discussed the nature of the implied undertaking arising as a consequence of discovery in a court proceeding and said, at [20] and [21]:
There is a clash of two important public interest considerations in this case. First, there is the public interest in protecting the discovery process in the interest of encouraging openness and frankness in discovery made in the County Court proceeding by way of consistent and effectively enforced assurance to the party faced with compulsory discovery that the documents will not be used for any other purpose than the purpose for which they were discovered in that court. Second, there is the competing important public interest in the due and proper administration of justice in the proceedings before this Court by ensuring compliance with its orders. In these circumstances if the document was one which ought to have been discovered I am not persuaded either as a matter of power discretion or comity that release of the undertaking must or should be first obtained from the County Court.
... [Finally, in this case, there is no question of breach of comity between courts because the implied undertaking properly understood does not prevent or diminish the enforcement of discovery or the compulsion to discover documents in the proceeding before the County Court . (my emphasis)
Mr Castle, however, seeks to draw a distinction with the above cases on the basis that in the present case there are not in fact "inconsistent" obligations between the implied undertaking and an order for production issued in support of an examination summons, since the production of documents in the latter situation is discretionary. He submits that it is the anterior question (whether the document was "one which ought to have been produced") that arises in the present application, and not the subsequent question as to whether the earlier implied undertaking should yield as was in issue in Patricks , Cadbury Schweppes and Ampolex.
True it is, that there is a discretion as to whether an order for production will be issued by the court in connection with an examination under the provisions referred to above and that (as the former Chief Judge in Equity McLelland J said in Re BPTC Ltd (In Liq) (No. 3) (1993) 29 NSWLR 708 at 711G) "It is necessary in considering the propriety of an order for production of documents ancillary to an examination under s597, to ensure that the demands made by the order do not "exceed the legitimate requirements of the particular occasion... ". However, once issued, an order for production (unless set aside or stayed) is an order of the Court and production thereunder is not a matter of discretion by the party upon whom the order is served. Therefore, I am not persuaded that the reasoning in the cases relied upon by Mr Condon is inapposite.
The issue before me seemed to be put on the basis that the order for production should be stayed because, were it not, it would conflict with the implied undertaking. I do not accept that there is such a conflict having regard to the reasoning in the Cadbury Schweppes case (which, as noted by Mr Condon, was one where penalty provisions were being invoked).
While I accept that the rationale underlying the implied undertaking is a factor that might be taken into account in an appropriate case when considering whether there should be a stay of the order for production, in the present case, I am not satisfied that the existence of the implied undertaking leads to the conclusion that the documents should not be produced in compliance with an order for production issued in connection with an examination ordered under s 596 of the Act (and particularly not where orders are to be made to preserve the confidentiality of the transcript of the examination pending the criminal proceedings).
Mr Castle, in effect, cautions against the establishment of any hard and fast rule that would exclude particular documents (such as a Crown brief) from production in all cases. I make no such hard and fast rule. I simply express the view that a party (such as the examinees) compelled to produce documents earlier served on that party by way of a Crown brief (whether that party be so compelled by way of subpoena or orders for discovery or an order for production) cannot, by complying with the order, be said to be in breach of the implied undertaking. Whether or not a court would require production of such material (in light of the circumstances that the material so obtained was in effect impressed with an implied undertaking as to its use) in the particular circumstances of any case would be a matter to be dealt with on the facts of that case.
The second aspect of the requested restriction of production of documents in the Crown brief, namely the operation s 43B of the Mutual Assistance in Criminal Matters Act, is a different matter. To the extent that the Crown brief comprises material that has been obtained in answer to a request under that Act, then its use or disclosure without the leave of the Attorney-General is precluded by statute. Although the Commonwealth DPP is said to be satisfied with the regime contemplated on the liquidators' version of the orders, that does not seem to me to overcome the statutory prohibition. I therefore propose to limit the orders for production so as to exclude the material obtained pursuant to a request under that Act in the absence of prior consent to its production by the Attorney-General. In making that order, I have relied upon the accuracy of the identification by Mr Gitahi as to what portion of the Crown brief was obtained pursuant to that Act.
I turn then to the remaining issue.
(ii) Costs
Mr Condon seeks an order in the liquidators' favour for the costs of the application brought by the Applicants (and of the appearance before Palmer J in relation thereto), invoking the usual rule that costs follow the event. Mr Castle submits that this rule should be qualified in the present case for the following reasons.
First, it is said that the reason that the previous hearing before Palmer J did not proceed was because of the risk of potential oppression which was not the fault of either party (reference being made to [32] of his Honour's judgment), and thus it is said that there should be no order as to the costs of that occasion.
Secondly, it is said that the orders made for a private examination were in fact proposed by the Applicants as part of a compromise proposal to the liquidators on 3 March 2011, although that proposal did not result in an agreement.
Thirdly, it is said (as was the case) that the listing on 6 May 2011 was set down for the hearing of the liquidators' application for leave to extend the time for the bringing of applications under s 588G and that it was only in the latter part of the day that the stay application was brought forward (to make effective use of court time).
As to those submissions, it seems to me that in substance the liquidators have succeeded in obtaining the result that they sought when the matter was before Palmer J and again when the matter came before me (namely that the examinations proceed in advance of the committal, and then substantive criminal, proceedings) and in resisting the application for the orders for production to be stayed (and/or restricted in scope otherwise than in respect of a specific category of documents in the Crown brief). Palmer J reserved the costs of the application before him (the adjournment of the application on that occasion being to enable the outcome of the committal hearing to be known). It seems to me that the application before Palmer J cannot be seen as divorced from the substance of the application before me and that although the Applicants have had a partial success (in deferring the commencement of the examinations), ultimately they have not succeeded in their application. (As to the proposal made in March this year for a private examination, the fact remains that when the application came before me the Applicants were seeking a stay of the examination summonses not acceding to a regime under which they would proceed albeit in private.)
Accordingly, I consider that the liquidators' costs of the application brought by the Applicants by the Interlocutory Process heard by me on 6 May 2011 (including the costs of the application before Palmer J last year and the subsequent mentions since then) should be paid by the Applicants. In so saying, I consider that since the hearing on 6 May 2011 also involved hearing of part of the liquidators' extension applications, applying a broad brush to the apportionment of costs the Applicants should only bear the costs of half of the hearing time on 6 May 2011 (with the balance of the day's costs to be dealt with when the extension applications are determined).
Orders
Therefore, I now make the following orders (orders 1-6, 8-10 and 12 being by consent):
1. Order pursuant to section 597(4) of the Corporations Act 2001 (Cth) that the examination of Mr Patrick McCarthy to be conducted in accordance with an Examination Summons dated 1 November 2010 be held in private before the Registrar ("the McCarthy Examination").
2. Order pursuant to section 597(4) of the Corporations Act 2001 (Cth) that the examination of Mr Ross Seller to be conducted in accordance with an Examination Summons dated 1 November 2010 be held in private before the Registrar ("the Seller Examination").
3. Direct that there be no order pursuant to section 597(13) of the Corporations Act 2001 (Cth) for Mr Patrick McCarthy or Mr Ross Seller to authenticate the transcript of the examinations referred to in Orders 1 and 2 above.
4. Direct pursuant to section 596F(1)(e) of the Corporations Act 2001 (Cth) that, without the leave of the Court, pending the hearing of the criminal proceedings against Mr Patrick McCarthy and Mr Ross Seller referred to in my reasons for judgment, no person or organisation shall be entitled to have access to the transcript or any other written record of the McCarthy Examination and the Seller Examination, other than Mr Patrick McCarthy, Mr Ross Seller, the Plaintiffs and their respective legal advisors. (To avoid any doubt, a reference to the Plaintiffs includes the Plaintiffs' employees.)
5. Direct pursuant to section 596F(1)(f) of the Corporations Act 2001 (Cth) that, without the leave of the Court, pending the hearing of the criminal proceedings against Mr Patrick McCarthy and Mr Ross Seller, the Plaintiffs, by themselves, their servants and agents, must not publish or communicate to any person or organisation other than their legal advisers any information about the McCarthy Examination and the Seller Examination, including questions asked and answers given at the McCarthy Examination and the Seller Examination.
6. Subject to 7 below, order that Patrick McCarthy, Ross Seller and Grant McKenzie Pty Ltd comply with the Orders for Production by 10am on 9 June 2011.
7. Order that Patrick McCarthy and Ross Seller are not required to produce for inspection any document provided to them by the Commonwealth Director of Public Prosecutions for the purposes of the prosecution of Patrick McCarthy and Ross Seller in proceedings 537336 of 2009 in this Court which was obtained in answer to a request made under the Mutual Assistance in Criminal Matters Act 1987 (Cth) unless the consent of the Attorney-General to the production of that document has first been obtained. (For the avoidance of doubt, the documents so obtained have been identified as comprising volume 10 of the Hand Up Brief and volumes 19-25, 29-32 of the Committal Brief, as those briefs are defined in the above reasons.)
8. Direct that there will be sufficient compliance with the Orders for Production issued to Patrick McCarthy, Ross Seller and Grant McKenzie Pty Ltd by the production of photocopies of documents rather than the originals; by production of documents relating to the particular Scotch Whisky Scheme in which Clarecastle participated; and, subject to any subsequent application by the Plaintiffs for production of material without such redaction, by production of documents redacted to mask names of other individuals who may have participated in the said Scheme. (I note that I do not understand this redaction to extend to persons whose identification may be necessary for the purposes of determining the location of the whisky the subject of the Scheme or the issues identified in paragraph [10] of my reasons above.)
9. Direct that the solicitors for Patrick McCarthy, Ross Seller and Grant McKenzie Pty Ltd:
(a) place any documents over which a claim of privilege may be made by the Commonwealth DPP in a sealed envelope marked "privilege"; and
(b) file and serve by 4pm on 15 June 2011, the usual affidavit identifying the documents over which a claim of privilege may be made by the Commonwealth DPP on the Plaintiffs' solicitors and the Commonwealth DPP.
10. Direct that the solicitors for the Plaintiffs not access the documents placed in a sealed envelope and marked "privilege":
(a) before 9am on 16 June 2011 to enable the Commonwealth DPP to identify whether they in fact wish to claim privilege over the documents placed in the sealed envelope; and
(b) without leave of the Court in respect of those documents over which the Commonwealth DPP identify as being documents over which they wish to claim privilege.
11. Order the Applicants to pay the Plaintiffs' costs of the application, including the reserved costs before Palmer J on 5 and 7 October 2010, Barrett J on 7 and 28 February 2011, and Registrar Musgrave on 5 April 2011 as agreed or assessed (but noting that only half of the costs of the hearing on 6 May 2011 are referable to and the subject of this costs order).
12. Liberty to apply on 48 hours' notice.
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Decision last updated: 20 September 2011
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