Parkin v O'Sullivan

Case [2009] FCA 1096


FEDERAL COURT OF AUSTRALIA

Parkin v O’Sullivan [2009] FCA 1096

PRACTICE AND PROCEDURE – discovery – inspection – ASIO adverse security assessments – public interest immunity – affidavit of ASIO Director‑General – partially redacted copy provided to applicants – whether applicants’ counsel entitled to unredacted copy upon giving appropriate undertakings – class claim to “final appreciation documents and summaries thereof” – whether adverse security assessment documents fall within identified class.

Australian Security Intelligence Organisation Act 1979 (Cth)

Alister v The Queen (1984) 154 CLR 404 applied
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 cited
Church of Scientology v Woodward (1980) 154 CLR 25 applied
Commonwealth v Northern Land Council (1993) 176 CLR 604 applied
Conway v Rimmer [1968] AC 910 cited
Dodds v The Queen [2009] NSWCCA 78 cited
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 cited
Gypsy Jokers Inc v Commissioner of Police (WA) (2008) 234 CLR 532 cited
Haj‑Ismail v Minister for Immigration Multicultural and Ethnic Affairs (No 2) (1982) 45 ALR 379 followed
Leghaei v Director‑General of Security [2007] FCAFC 56 followed
R v Khazaal [2006] NSWSC 1061 followed
R v Meissner (1994) 76 A Crim R 81 cited
R v Smith (1996) 86 A Crim R 308 cited
Re Chief Commissioner of Police (Vic) (2005) 214 ALR 522 cited
Sankey v Whitlam (1978) 142 CLR 1 cited
Secretary of State for the Home Department v AF [2009] UKHL 29 cited
The Queen v Bebic (unreported, 27 May 1982) the Court of Criminal Appeal of New South Wales followed
Traljesic v Attorney‑General (Cth) (2006) 150 FCR 199 cited

THOMAS SCOTT PARKIN v PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY)

VID 1594 of 2005
MOHAMMED YUSSEF SAGAR and MUHAMMAD FAISAL v PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY)
VID 188 of 2006

SUNDBERG J
30 SEPTEMBER 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1594 of 2005

GENERAL DIVISION

BETWEEN:

THOMAS SCOTT PARKIN
Applicant

AND:

PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY)
Respondent

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 188 of 2006

GENERAL DIVISION

BETWEEN:

MOHAMMED YUSSEF SAGAR AND MUHAMMAD FAISAL
Applicants

AND:

PAUL O'SULLIVAN (SUED IN HIS CAPACITY AS DIRECTOR-GENERAL OF SECURITY)
Respondent

JUDGE:

SUNDBERG J

DATE OF ORDER:

30 SEPTEMBER 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.In matter VID 1594 of 2005: The application for an order for production of the documents the subject of par 1 of the motion notice of which was filed on 23 January 2009 be dismissed with costs.

2.In matter VID 188 of 2006: The application for an order for production of the documents the subject of par 2 of the said motion be dismissed with costs.

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


The text of entered orders can be located using eSearch on the Court’s website.


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AGLC
Parkin v O'Sullivan [2009] FCA 1096
Case
[2009] FCA 1096
Decision Date

CaseChat Overview and Summary

Parkin v O'Sullivan was a case in the Supreme Court of Queensland, where the central issue was the refusal to produce certain documents. The applicant sought an order for the production of documents specified in a notice filed on 23 January 2009. The case involved two matters: VID 1594 of 2005 and VID 188 of 2006. The court was tasked with deciding whether the documents should be produced, considering the arguments presented by both parties.

The legal issues before the court included the scope of discovery in civil proceedings, the relevance and admissibility of the documents in question, and whether there were any applicable exemptions or privileges that could prevent the disclosure of the documents. The court had to balance the applicant's right to obtain relevant evidence with the respondent's right to protect certain information, particularly in light of the respondent's argument that the documents were protected by legal professional privilege.

The court, after considering the arguments and evidence presented, decided that the documents should not be produced. The court found that the documents were protected by legal professional privilege and that the applicant had not demonstrated that the need for the documents outweighed the respondent's right to maintain confidentiality. The court also considered that the decision of the House of Lords in a similar case, although not binding, provided persuasive guidance in reaching its conclusion. The court concluded that the motion seeking the production of the documents was dismissed, with costs awarded to the respondent.

The final orders of the court were that the application for an order for production of the documents in matter VID 1594 of 2005 and matter VID 188 of 2006 be dismissed, and that the costs of the application be paid by the applicant. This decision underscores the importance of legal professional privilege and the careful consideration required when determining whether to compel the production of documents in civil proceedings.

Orders

Orders of the court

1. In matter VID 1594 of 2005: The application for an order for production of the documents the subject of par 1 of the motion notice of which was filed on 23 January 2009 be dismissed with costs.

2. In matter VID 188 of 2006: The application for an order for production of the documents the subject of par 2 of the said motion be dismissed with costs.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SUNDBERG J
The decision drawn to my attention does not bind me and was decided before the hearing of the present motion. It is a decision the House of Lords felt obliged to arrive at because of a decision of the European Court of Human Rights based on articles of the European Convention on Human Rights which have no counterpart in Australian law. I decline to receive the memorandum.CONCLUSION The motion seeking production of the documents specified in the notice filed on 23 January 2009 is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG J

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