McLachlan v Browne (No 6)

[2018] NSWSC 1951

Supreme Court

New South Wales

Medium Neutral Citation:	McLachlan v Browne (No 6) [2018] NSWSC 1951
Hearing dates:	16 November 2018
Date of orders:	16 November 2018
Decision date:	16 November 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	I order the Commissioner to pay the plaintiff's costs of the application relating to the public interest immunity claim
Catchwords:	COSTS – plaintiff’s application for costs following the late abandonment of an interested party’s application opposing access to documents produced on subpoena
Category:	Costs
Parties:	Proceedings 2018/34244: Craig McLachlan (plaintiff) Christie Whelan Browne (first defendant) Fairfax Media Publications Pty Ltd (second defendant) Chief Commissioner of Police, Victoria Police (interested party)   Proceedings 2018/34257 Craig McLachlan (plaintiff) Christie Whelan Browne (first defendant) Australian Broadcasting Corporation (second defendant) Chief Commissioner of Police, Victoria Police (interested party)
Representation:	Counsel: M Richardson (plaintiff in both proceedings) J Treherne (defendants in both proceedings) T Glover (interested party)   Solicitors: Mark O’Brien Legal (plaintiff) Banki Haddock Fiora (1st defendant in both proceedings and 2nd defendant in 2018/34244 proceedings) ABC Legal & Business Affairs (2nd defendant in proceedings 2018/34257) Legal Services Department, Victoria Police (interested party) Crown Solicitor’s Office (agent for legal representative of interested party)
File Number(s):	2018/342442018/34257
Publication restriction:	None

Judgment EX TEMPORE – REVISED

1. HER HONOUR: The Chief Commissioner of the Victoria Police made an application in these proceedings opposing access to certain documents produced in response to subpoenas on the ground of public interest immunity. At 6.50pm last evening the Court received an email indicating that the application would not proceed. Before that time, the plaintiff had prepared to meet the application and had provided detailed written submissions in response to the written submissions filed on behalf of the Chief Commissioner, which themselves were careful and comprehensive. In those circumstances, the plaintiff seeks his costs of preparing to meet the application.

2. The importance for the plaintiff of obtaining access to the documents was addressed in Mr Richardson's submissions to which I have referred. Indeed, it was acknowledged even in the Commissioner's submissions that the plaintiff had an interest in having access to the material. That was addressed as part of the balancing exercise required to be undertaken by the Court in determining the application in accordance with well-known principle.

3. The question as to whether, having abandoned the application as late as occurred, the Commissioner should pay the plaintiff's costs is largely addressed in confidential evidence prepared in support of the application. The abandonment of the application does not entirely remove the confidentiality of that information and, accordingly, it is necessary for me to be circumspect in explaining my reasons for concluding that the Commissioner should pay the plaintiff's costs.

4. I need to do so without referring to material Mr Richardson, appearing for the plaintiff, has not seen and is not able to address me on.

5. Mr Glover, who appears for the Commissioner, of course is familiar with the content of the material to which I am about to refer in cryptic terms, and that should assist his client to understand why a costs order is being made against him.       

6. In short, the affidavit addresses steps taken in the investigation of allegations against the plaintiff, Mr Craig McLachlan and, specifically, addresses the time-tabling of those steps.

7. Ultimately, part of the reason it was said the application was abandoned was that, at 5.03pm last evening, Mr McLachlan indicated that he would not consent to be interviewed by police in respect of the allegations the subject of their investigation. That removed an aspect of the basis on which the application was made. It is not the entire explanation, the other relevant consideration being the matter addressed in the confidential affidavit.

8. I am satisfied, having regard to the sequence of events addressed in paragraphs 19 to 23 of the confidential affidavit, that if the matter had been conducted differently the plaintiff could and should have been spared the cost of preparing to meet the present application. I do not think I can say any more on that topic without divulging the confidential material to which I have obliquely referred.

9. For those reasons, I order the Commissioner to pay the plaintiff's costs of the application relating to the public interest immunity claim.

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Decision last updated: 17 December 2018