Neptune Shipping Line Limited v Pacific Forum Line (NZ) Limited

[2004] FCA 240

FEDERAL COURT OF AUSTRALIA

Neptune Shipping Line Limited v Pacific Forum Line (NZ) Limited
[2004] FCA 240

NEPTUNE SHIPPING LINE LIMITED v PACIFIC FORUM LINE (NZ) LIMITED
N 761 of 2002

NEPTUNE SHIPPING LINE LIMITED v PACIFIC FORUM LINE (NZ) LIMITED
N 987 of 2003

ALLSOP J
27 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 761 of 2002

BETWEEN:	NEPTUNE SHIPPING LINE LIMITED PLAINTIFF
AND:	PACIFIC FORUM LINE DEFENDANT
JUDGE:	ALLSOP J
DATE OF ORDER:	27 FEBRUARY 2004
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 987 of 2003

BETWEEN:	NEPTUNE SHIPPING LINE LIMITED PLAINTIFF
AND:	PACIFIC FORUM LINE DEFENDANT
JUDGE:	ALLSOP J
DATE OF ORDER:	27 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1I stand over generally the application for access to documents 129 and 130 for further consideration.

2I dismiss the plaintiff's informal application for access to documents 125, 126, 127, 128, 131, 133, 207 and 208.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 761 of 2002

BETWEEN:	NEPTUNE SHIPPING LINE LIMITED PLAINTIFF
AND:	PACIFIC FORUM LINE DEFENDANT

JUDGE:	ALLSOP J
DATE:	27 FEBRUARY 2004
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 987 of 2003

BETWEEN:	NEPTUNE SHIPPING LINE LIMITED PLAINTIFF
AND:	PACIFIC FORUM LINE DEFENDANT

JUDGE:	ALLSOP J
DATE:	27 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an informal application for access as to the privilege to documents numbered 125 – 133 and 207 and 208 in the schedule for discovery of the defendant in the substantive matter. The plaintiff wishes to obtain access to the documents 125 to 133 claiming that the documents are not privileged. 

2. The documents accidentally came into the possession of the plaintiff's solicitors.  They were examined before the plaintiff’s solicitors realised a claim for privilege had in fact been made over these documents and that they had been obtained by an oversight. 

3. I make no criticism of the plaintiff's solicitors conduct.  They immediately provided the documents to the Court once they realised the documents were the subject to a claim for privilege.  The defendant's solicitors have asked me to examine the documents today to assess whether the claim for privilege is good.  I have read an affidavit of Mr Beadle, a solicitor in New Zealand.  On the basis of the affidavit of Mr Beadle and my examination of the documents I propose to dismiss the informal application made by the plaintiff. 

4. As to documents 125, 126, 127, (of which there seem to be two) and 128, I am presently satisfied of the claim for privilege.  Likewise, I am presently satisfied with the claim to privilege in relation to documents 131 and 133. 

5. In relation to documents 129 and 130, I have some difficulty with the privilege claim for reasons that arise from the face of the document which I will not identify. 

6. Having examined the contents of these documents I propose to order that the parties not have access to documents 129 and 130.  They may remain formally under a claim for privilege at the moment.  The documents will be returned to the defendant.  I am content to take that course mainly for the reason that even if some or all of the communications in 129 and 130 were not privileged, as some may not be, I do not see how their content at the moment could advance the interests of any party to the litigation on the substantive issues.  For that reason I would refuse access.

7. My view about that matter may change; and I stand over generally the application for access to documents 129 and 130 for further consideration, if that is appropriate, once the underlying facts which are in contest in the litigation can be said to be more crystallised. 

8. The affidavit of Mr Beadle will be put on the file.  I return the documents about which I am satisfied as to privilege. Documents 129 and 130 I place loose in the envelope, and I return the envelope to Ms Rusiti.

9. I am content that 207 and 208 fall into the same category as 125, 126, 127, 128, 131 and 133.  I return them also. 

10. I dismiss the plaintiff's informal application for access to those documents. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            15 March 2004

Counsel for the Applicant:	Mr Darke
Solicitor for the Applicant:	Ebsworth & Ebsworth
Counsel for the Respondent:	Ms Rusiti
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	27 February 2004
Date of Judgment:	27 February 2004