Mann, Arnold v The Medical Defence Union Ltd

[1996] FCA 649

CATCHWORDS

PROCEDURE - contempt of Court - discovery - implied undertaking not to use document disclosed on discovery for any purpose other than those of the proceeding in which it is disclosed - document used for a purpose collateral to the proceeding.

PROCEDURE - contempt of Court - punishment - no intention to interfere with the administration of justice no conviction - no penalty save costs imposed.

R v Macdonald [1994] 1 VR 414

ARNOLD MANN v THE MEDICAL DEFENCE UNION LIMITED

VG No. 131 of 1995

Olney J
Melbourne
18 July 1996

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:

ARNOLD MANN

Applicant

THE MEDICAL DEFENCE UNION LIMITED

Respondent

Coram:    Olney J

Place:    Melbourne

Date:     18 July 1996

REASONS FOR JUDGMENT
The facts in this matter have now been aired before me on two occasions, the first on 12 June 1996 when I made orders concerning the use by the applicant of a document that had come his way through the discovery process and I do not need to rehearse in detail either what was said then or the orders that were made.   Those orders were made on a motion in which the respondent sought that the applicant be dealt with for a contempt in connection with the use of the document in question.

On the evidence that is before the Court, it is quite clear that the document in question was used for a purpose collateral to the proceeding and I am of the opinion that that technically amounted to a contempt.   I have heard what has been said on Dr Mann's behalf and what has been said on behalf of the respondent.   I do not need to repeat those submissions.   I am satisfied that Dr Mann acted in good faith
without any intention to interfere with the ordinary processes of justice in this proceeding or in any other proceeding.

One can understand the attitude that he took upon becoming aware of the contents of the document in question although that does not excuse the steps that he took in relation to the document.   Considering all factors of the case and in particular the apology which has been tendered to the Court through the affidavit filed on 11 July 1996 and the fact that no harm has been done in this proceeding or, it would appear, in any other manner in relation to the administration of the law and justice, I am inclined to take the step that Hampel J took in the matter of R v Macdonald, that is not to move to conviction nor to impose any penalty for contempt but nevertheless to direct that the applicant pay the respondent's costs of the motion filed 12 June 1996 including any reserved costs.   As to the question of whether those costs should be on some basis other than party and party I note that in other cases to which Mr Dreyfus has referred me today costs have been ordered but there has been no order for solicitor and client or any other more onerous order for costs other than the ordinary order that involves the payment of party and party costs.

Although it is not suggested that I am in any way bound by those other cases nor indeed that the cases referred to are an exhaustive analysis of the law on the subject, nevertheless in the circumstances of this case as a matter of discretion I am of the view that the costs should simply be on a party and party basis.   No order will be made on paragraphs 1 and 3 of the respondent's motion filed on 12 June 1996.   The applicant is ordered to pay the respondent's costs of that motion including any reserved costs.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated:

Heard:    18 July 1996

Place:    Melbourne

Judgment: 18 July 1996

Appearances:

Mr R.W. McGarvie (instructed by Tress Cocks & Maddox) appeared for the respondent (moving party).

Mr M. Dreyfus (instructed by Kearneys) appeared for the applicant.