Liberty Financial Pty Ltd v Scott

[2003] FCA 982

FEDERAL COURT OF AUSTRALIA

Liberty Financial Pty Ltd v Scott [2003] FCA 982

PRACTICE AND PROCEDURE – discovery – access to material seized during Anton Piller Order

LIBERTY FINANCIAL PTY LTD & SHERMAN MA v TREVOR WILLIAM SCOTT & BLUESTONE GROUP PTY LTD t/as BLUESTONE MORTGAGES
V1256 of 2001

HEEREY J
16 SEPTEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1256 OF 2001

BETWEEN:	LIBERTY FINANCIAL PTY LTD FIRST APPLICANT
SHERMAN MA SECOND APPLICANT
AND:	TREVOR WILLIAM SCOTT FIRST RESPONDENT
BLUESTONE GROUP PTY LTD (t/as BLUESTONE MORTGAGES) SECOND RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	16 SEPTEMBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Notwithstanding any previous Order of the Court or Undertaking given by the First Respondent or his Solicitors to the contrary, the First Respondent, his Solicitors and Counsel may have access to and make use of the material seized during the execution of the Anton Piller Orders made 20 December 2001 (the Seized Material) for purposes associated with the conduct of the Industrial Relations Commission proceeding numbered 2368 of 2001 (the IRC Proceeding) subject to paragraph 2 of this Order.

2.The use of the Seized Material in the IRC Proceedings by the First Respondent and the First Applicant shall be otherwise consistent with the Orders of this Court regarding its confidentiality, until further order. 

3.Liberty to apply.

4.The Applicants pay the First Respondent's costs of, and in connection with, the First Respondent’s Notice of Motion filed 5 September 2003, forthwith, such costs to be taxed on an indemnity basis.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1256 OF 2001

BETWEEN:	LIBERTY FINANCIAL PTY LTD FIRST APPLICANT
SHERMAN MA SECOND APPLICANT
AND:	TREVOR WILLIAM SCOTT FIRST RESPONDENT
BLUESTONE GROUP PTY LTD (t/as BLUESTONE MORTGAGES) SECOND RESPONDENT

JUDGE:	HEEREY J
DATE:	16 SEPTEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. It seems to me self-evident that the first respondent, Mr Trevor Wiliam Scott, should have access to what is his own property, that is to say material which was seized as a result of the Anton Piller order made on 20 December 2001, for the purpose of complying with discovery obligations in the New South Wales Industrial Relations Commission   proceedings.

2. I see no validity in the objection that there is any lack of specificity or definition.  As one would expect, the material seized was listed in an inventory. 

3. The complaint about risk of confidentiality has no foundation.  There are in existence confidentiality undertakings, both those given to Goldberg J on 6 February 2002 and the undertakings filed in this court on 2 April 2002. 

4. The fact that the second respondent Bluestone Group Pty Ltd may be funding Mr Scott's Industrial Relations Commission litigation in New South Wales seems to me beside the point.  I do not think this application should be adjourned pending the decision of Nicholas J of the Supreme Court of New South Wales on the cross-vesting application. 

5. The attitude of the applicants has been pedantic and obstructionist.  They did not respond to the letters from Allens Arthur Robinson of 25 June and 25 July requesting consent to this obviously sensible proposal and when pressed in a telephone conversation all the applicants’ solicitor would say was, "We do not think it is in our client's interest." 

6. There will be an order in terms of the proposed minute.  The undertaking and the direction as to confidentiality is contained in that order.  There will be and order that the applicants pay the costs in this application.  There will be an order that those costs be paid forthwith, and on an indemnity basis.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             16 September 2003

Counsel for the Applicants:	R Kendall QC and A Panna
Solicitor for the Applicants:	Abbott, Stillman & Wilson
Counsel for the First Respondent:	A J Maryniak
Solicitor for the First Respondent:	Allens Arthur Robinson
Counsel for the Second Respondent:	D Steicke
Solicitor for the Second Respondent:	Freehills
Date of Judgment:	16 September 2003