Porter v Australian Prudential Regulations Authority

FEDERAL COURT OF AUSTRALIA

Porter v Australian Prudential Regulations Authority [2009] FCA 1148  

ROSS DAVID PORTER and FIONA CAMPBELL SHAND v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY and WARREN SCOTT

NSD 810 of 2009

PERRAM J
9 OCTOBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 810 OF 2009

BETWEEN:

ROSS DAVID PORTER
First Applicant

FIONA CAMPBELL SHAND
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
First Respondent

WARREN SCOTT
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	9 OCTOBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The First Respondent is to pay the costs of these proceedings on an indemnity basis.

2.The First Respondent is to pay the costs of the Notice of Motion of 5 August 2009 in proceedings NSD 592/2009 on an indemnity basis.

3.Direct the Registrar to provide a copy of these reasons to the chairperson of the Australian Prudential Regulation Authority.

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 810 OF 2009

BETWEEN:

ROSS DAVID PORTER
First Applicant

FIONA CAMPBELL SHAND
Second Applicant

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
First Respondent

WARREN SCOTT
Second Respondent

JUDGE:	PERRAM J
DATE:	9 OCTOBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. At 9.50am on Wednesday 5 August 2009 two officers of the Australian Prudential Regulation Authority (“APRA”) served upon a solicitor, a Ms Shand, a notice which required her, on pain of the commission of a criminal offence, to produce to APRA a hard drive stored in a safe in her office.  The hard drive was a copy of another hard drive belonging to one of her clients, Mr Porter.  Production was required by 4.00pm that afternoon at APRA’s offices in Sydney. 

2. Shortly before 4.00pm, Ms Shand applied to this Court for urgent relief which was, for reasons given below, declined.  On Friday 7 August 2009 she and her client Mr Porter commenced substantive proceedings relating to the notice and on that day I made orders restraining APRA from taking any steps in reliance on it.  Ten days later, on Monday 17 August 2009, a delegate of APRA purported to revoke the notice.  On Thursday 3 September 2009, APRA consented to orders setting the notice aside with effect from the day of its issue.  That left the question of costs unresolved.  Ms Shand now asks that the costs of this proceeding and of the urgent application on the afternoon of 5 August 2009 (which was made in a related proceeding) should be paid on an indemnity basis.

   Facts

3. It is necessary first to say a little more of the facts.  The notice was issued by a delegate of APRA on Monday 3 August 2009.  On its issue, therefore, it required compliance within a period of two days.  There was no evidence before me of any of the circumstances…