Maloney v Riverlife Pty Ltd

[2021] FCCA 277

FEDERAL CIRCUIT COURT OF AUSTRALIA

Maloney v Riverlife Pty Ltd [2021] FCCA 277

File number(s):	BRG 628 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	8 February 2021
Catchwords:	PRACTICE AND PROCEDURE – whether orders for the filing of a defence and discovery appropriate for an individual respondent – penalty privilege – application opposing the making of orders for discovery dismissed.
Number of paragraphs:	6
Date of last submission/s:	8 February 2021
Date of hearing:	8 February 2021
Place:	Brisbane
Solicitor for the Applicant:	Mr Waters of MRH Lawyers
Solicitor for the Respondents:	Mr Mossman of Wotton & Kearney Lawyers

ORDERS

BRG 628 of 2020

BETWEEN:

TAHLIA ELIZABETH MALONEY

Applicant

AND:

RIVERLIFE PTY LTD

First Respondent

JOHN SHARPE

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	8 FEBRUARY 2021

IT IS ORDERED THAT:

1.The oral application for orders for discovery to be dispensed with be dismissed.

EX TEMPORE REASONS FOR JUDGMENT

JUDGE EGAN:

1. In this matter a claim has been filed on behalf of the applicant. 

2. Proposed orders were sent to Judge’s chambers which made provision for certain interlocutory steps to be taken in the proceeding.  Consequent upon receipt of those orders, Judge’s Chambers caused proposed draft orders usually made by this Court to be forwarded to the parties.

3. The proposed draft orders contemplate the making of a declaration that the Court considers that it is appropriate, in the interests of the administration of justice, to allow discovery by all parties in the proceeding.  It was contemplated in the draft proposed order sent to the parties from Judge’s Chambers that such discovery take place after the close of pleadings.  Mr Mossman, on behalf of the respondents, submitted that discovery would not be necessary should it be the case that some matters are not in dispute between the parties. 

4. The requirement for discovery, as proposed by the Court, will enable each of the parties to know what documentation is relevant for the purposes of the proceeding continuing to trial.  That understanding will be based upon the live issues between the parties as disclosed in the pleadings.  It is this Court’s view that a meaningful mediation in this matter can only take place should all parties be possessed of all relevant documentation which will enable them not only to appreciate the live issues as disclosed on the pleadings, but also to appreciate what documentation may touch upon the issues in dispute between them. 

5. Mr Mossman further raised, on behalf of the second respondent, the question of disclosure or of discovery being inappropriate in respect of that party because he is an individual, and he may wish to claim privilege against self-incrimination.  Accessorial liability under the Act is a claim clearly open to be made by the applicant.  The second respondent is a proper party to the proceedings and, as such, where discovery is considered appropriate, the second respondent is liable to make appropriate disclosure pursuant to the order of the Court having regard to what privilege, if any, may be claimed in any defence filed on his behalf. It is not for the Court to pre-empt what the second respondent might do in that regard.   

6. If there is some matter which touches upon the question of privilege or discovery then that can be addressed in due course, but it does not affect the intention of the Court, at this interlocutory stage, to make an order for discovery which is binding against the second respondent.  For the above reasons, the Court makes orders in accordance with the draft proposed orders forwarded by Judge’s Chambers to the parties which are initialled by me and placed on the Court file. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       8 February 2021