Prime Finance Pty Ltd v Randall
[2009] NSWSC 361
•1 May 2009
CITATION: Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361 HEARING DATE(S): 27 April 2009
JUDGMENT DATE :
1 May 2009JUDGMENT OF: Johnson J at 1 DECISION: 1. The Plaintiffs are granted leave to provide the affidavits, annexures and exhibits referred to in paragraph [4] of this judgment to an officer or officers of the New South Wales Police Force for the purpose of reporting the possible criminality of the First, Second and Third Defendants and other persons mentioned in the said affidavits and accompanying documents.
2. No order as to costs.
3. The execution of Order 1 above is stayed until 5.00 pm on Friday, 22 May 2009.CATCHWORDS: PROCEDURE - affidavits filed and served in proceedings - affidavits not read in open court - application for leave to furnish affidavits to police for investigation of crime - release from implied undertaking - public interest considerations - balancing exercise - special circumstances test - application granted LEGISLATION CITED: Contracts Review Act 1980
Consumer Credit (New South Wales) Code 1995
Civil Procedure Act 2005
Evidence Act 1995
Crimes Act 1900CATEGORY: Procedural and other rulings CASES CITED: Hearne v Street [2008] 235 CLR 125
Springfield Nominees Pty Limited v Bridge Lands Securities Limited (1992) 38 FCR 217
Wellness Pty Limited v Hamilton-Bond [2002] NSWSC 1259
Premier Travel Pty Limited v Satellite Centres of Australia Pty Limited [2004] NSWSC 864
Ainsworth v Hanrahan (1991) NSWLR 155
Ross v Internet Wines Pty Limited (2004) 60 NSWLR 436
Medway v Doublelock Limited [1978] 1 All ER 1261
Re Addstone Pty Limited (In Liq); Ex parte Macks (1998) 30 ACSR 156
Rowe v Silverstein [2009] VSC 157
Uniflex (Australia) Pty Limited v Hanneybel [2001] WASC 138
Moage Ltd v Jagelman (2002) 43 ACSR 173
Rank Film Distributors Limited v Video Information Centre [1982] AC 380
Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476
North East Equity Pty Limited v Golden West Equities Pty Limited [2008] WASC 190
Holpitt Pty Limited v Varimu Pty Limited (1991) 29 FCR 576
Liberty Funding Pty Limited v Phoenix Capital Limited (2005) 218 ALR 283PARTIES: Prime Finance Pty Limited, Morris Malouf and Shirley Veronica Malouf (Plaintiffs)
Maurice Colin Randall (First Defendant)
Evelyn Patricia Randall (Second Defendant)
Sandra Leigh Brennan (Third Defendant)FILE NUMBER(S): SC 12087/08 COUNSEL: Mr ET Finnane (Plaintiffs)
Mr SB Docker (First and Second Defendants)SOLICITORS: WH Parsons & Associates (Plaintiffs)
Rankin Nathan Lawyers (First and Second Defendants)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LISTJohnson J
1 May 2009
JUDGMENT12087/08 Prime Finance Pty Limited and Ors v Maurice Colin Randall and Ors
1 JOHNSON J: By Notice of Motion filed 10 December 2008, the Plaintiffs seek the leave of the Court to provide to officers of the New South Wales Police Force certain affidavits, annexures and exhibits filed and/or served in these proceedings by the First and Second Defendants. The application for leave is opposed by the First and Second Defendants.
The Principal Proceedings
2 By their Amended Statement of Claim filed 24 October 2008, the Plaintiffs, Prime Finance Pty Limited, Morris Malouf and Shirley Veronica Malouf, alleged mortgage default on the part of the Defendants, Maurice Colin Randall (the First Defendant), Evelyn Patricia Randall (the Second Defendant) and Sandra Leigh Brennan (the Third Defendant). The Plaintiffs seek judgment against the Defendants in the sum of $401,434.00 together with judgment for possession of land at Tanilba Bay.
3 By a Defence filed 26 November 2008, the First and Second Defendants resist the claim for relief, invoking provisions of the Contracts Review Act 1980 and the Consumer Credit (New South Wales) Code 1995 (“the Code”). In addition, the First and Second Defendants filed a Cross Claim on 16 March 2009 in which the Cross Defendants are the Plaintiffs, the Third Defendant and Ozero Pty Limited (trading as Redilend Australia). The Cross Claim seeks relief, including relief under the Code.
The Subject Affidavits
4 The present application seeks leave to disclose to police the following affidavits, together with annexures and exhibits to the affidavits (“the subject affidavits”):
(a) affidavit of Evelyn Patricia Randall sworn 18 August 2008;
(b) affidavit of Evelyn Patricia Randall sworn 21 August 2008;
(c) affidavit of Evelyn Patricia Randall sworn 24 September 2008;
(e) affidavit of Maurice Colin Randall sworn 21 August 2008.(d) affidavit of Maurice Colin Randall sworn 18 August 2008;
5 The subject affidavits have been identified, but not read, on the application.
Relevant Facts
6 On the present application, the Plaintiffs have read the following affidavits:
(a) affidavit of Merrick John Malouf sworn 18 September 2008;
(b) affidavit of Merrick John Malouf sworn 10 December 2008;
(d) affidavit of William Henry Parsons sworn 10 September 2008.(c) affidavit of Jerrell Solomon Niu sworn 10 September 2008;
7 The present proceedings were commenced by the filing of a Statement of Claim on 6 May 2008. The Defendants did not file a Defence in the proceedings. On 18 July 2008, default judgment was entered in favour of the Plaintiffs and, on 23 July 2008, a writ of possession issued for the property at Tanilba Bay.
8 On 19 August 2008, Deputy Registrar Yoo granted a stay of execution of the writ of possession issued on 23 July 2008 up to and including 5.00 pm on 27 August 2008. The Deputy Registrar directed that the matter be listed on 27 August 2008 at 9.00 am and also directed that any Notice of Motion seeking a further extension of the stay, together with any further supporting affidavit, be filed and served by 5.00 pm on 21 August 2008.
9 I infer that this was an ex-parte application made in Chambers to the Deputy Registrar on 19 August 2008. I infer that, at least, the affidavit of Evelyn Patricia Randall sworn 18 August 2008 was relied upon in support of the stay application made on that day. The original of that affidavit on the Court file bears an endorsement that it was filed with the Duty Registrar on 19 August 2008.
10 I infer that the affidavits of Evelyn Patricia Randall sworn 21 August 2008 and Maurice Colin Randall sworn 18 August 2008 and 21 August 2008, were filed and served in accordance with the direction of the Deputy Registrar made on 19 August 2008.
11 On 27 August 2008, the matter came before Registrar Bradford. The matter was adjourned to 8 October 2008 and the stay was extended until 5.00 pm that day. The Registrar gave further directions with respect to service of affidavits. I infer that the affidavit of Evelyn Patricia Randall sworn 24 September 2008 was served pursuant to the direction of the Court.
12 On 8 October 2008, Registrar Bradford made a number of consent orders, including an order setting aside the default judgment entered 18 July 2008 as against the First and Second Defendants. Further directions were made to progress the proceedings.
13 As a consequence of the consent orders made on 8 October 2008, none of the affidavits of Evelyn Patricia Randall and Maurice Colin Randall referred to at [4] above were read in open court. As I have observed, however, I infer that the affidavit of Evelyn Patricia Randall sworn 18 August 2008 was relied upon on the ex-parte stay application made to the Duty Registrar on 19 August 2008.
14 For present purposes, it is sufficient to observe that the subject affidavits of the First and Second Defendants contain admissions that, for the purpose of assisting their daughter, the Third Defendant, to obtain finance from the Plaintiffs, they took steps to state falsely their correct address and to state falsely that the loan was being obtained for investment purposes, when that was not the true position. Admissions of this type were made in the affidavit of Evelyn Patricia Randall sworn 18 August 2008 and in later affidavits sworn by the First and Second Defendants. The accounts of the First and Second Defendants disclose that it was a Tony Biscontri, a mortgage broker with Redilend Australia, who had suggested this course of action.
15 The affidavits read by the Plaintiffs on the present application contain evidence that, had the Plaintiffs been aware of the true position with respect to the purpose of the loan and the true facts concerning the ownership of the Tanilba Bay property, the relevant finance would not have been advanced to the Defendants.
16 Correspondence was entered into between 22 October 2008 and 13 November 2008 whereby the solicitors for the Plaintiffs sought the consent of the First and Second Defendants to the provision of the subject affidavits to the New South Wales Police Force. By letter dated 13 November 2008, the solicitors for the First and Second Defendants declined to give such consent.
Applicable Legal Principles
17 Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence: Hearne v Street [2008] 235 CLR 125 at 154-155 [96]. The types of material disclosed to which this principle applies include witness statements served pursuant to a judicial direction and affidavits: Hearne v Street at 155 [96].
18 The implied undertaking with respect to use of documents produced by way of compulsory process for the purpose of litigation may be characterised as an obligation of substantive law: Hearne v Street at 157-160 [105]-[108]. The importance with which the courts have viewed the obligation is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear: Hearne v Street at 159-160 [107]. Deciding whether special circumstances have been made out involves a balancing exercise which takes into account the particular nature of the material produced, the policy underlying the implied undertaking as to using the documents for the purpose of the proceedings in which they were produced, and any other relevant factors, and asks whether the needs of justice are better served by relieving from or maintaining the undertaking: Springfield Nominees Pty Limited v Bridge Lands Securities Limited (1992) 38 FCR 217 at 225; Wellness Pty Limited v Hamilton-Bond [2002] NSWSC 1259 at [8]; Premier Travel Pty Limited v Satellite Centres of Australia Pty Limited [2004] NSWSC 864 at [2].
19 I will refer to further authorities in the course of addressing the issues in this case.
Submissions of the Parties
20 Mr Finnane, counsel for the Plaintiffs, submitted that leave ought be granted in this case. He submitted that the subject affidavits contain admissions by the First and Second Defendants of apparently criminal conduct on the part of them and others, and were served in circumstances that did not, in any way, seek to invoke the privilege against self-incrimination.
21 Mr Finnane submitted that the affidavit of the Second Defendant sworn on 18 August 2008 had been read, and thus relied upon, in a chambers application for a stay. That affidavit had been volunteered by the Second Defendant, and had not been produced as a result of any order or direction of the Court. He did not contend that the principles in Hearne v Street were entirely inapplicable to this affidavit. Rather, he submitted that the fact that this affidavit was relied upon in this way weighed heavily in favour of the application for leave to provide it to police.
22 With respect to the other affidavits of the First and Second Defendants, Mr Finnane submitted that the affidavits, on their face, revealed criminality on the part of the First, Second and Third Defendants and others, including Mr Biscontri, the mortgage broker who is said to have suggested the modus operandi utilised in this case. He submitted that there is a public interest in the provision of this information to police so that it may be investigated and, if the police see fit, appropriate prosecution action may be taken. He submitted that it was relevant that the mortgage broker in question may still be active in the mortgage industry and that this bears upon the public interest in these documents being provided to police.
23 Mr Finnane submitted that it was relevant that the documents in question were not pre-existing documents provided on discovery or in answer to a subpoena. Rather, the documents are affidavits sworn by each of the First and Second Defendants in these proceedings.
24 Mr Finnane submitted that the contents of the subject affidavits clearly demonstrated that a false address at Glenmore Park was given by each of the First and Second Defendants in separate statutory declarations made in support of the loan, and that the Second Defendant admits to changing an address on a driver’s licence for the purpose of the application. To this end, there were admissions that false information was given to the Roads & Traffic Authority, and to the Plaintiffs, and that the purpose of doing so was to obtain finance from the Plaintiffs.
25 Mr Finnane submitted that, without the subject affidavits, the Plaintiffs have nothing to report to police with respect to the criminality reflected in those documents. He submits that there is a public interest in serious crimes being reported and investigated promptly. The Plaintiffs submitted that the competing interest in an application of this type is the protection of privacy and confidentiality. However, Mr Finnane submitted that this interest should be given little weight in this case given that the subject affidavits contain the evidence that the First and Second Defendants were, and are, prepared to give in open court, and which they need to give in order to support the factual assertions in their Defence and Cross-Claim: Ainsworth v Hanrahan (1991) NSWLR 155 at 167. He submitted that the proposed use does not involve any general publication, but dissemination to the police for the purposes of investigation. Mr Finnane submitted that the privilege against self-incrimination does not assist the First and Second Defendants on this application. They chose to make their affidavits, and they did so freely and voluntarily and with the benefit of legal assistance. The affidavit of 18 August 2008 of the Second Defendant was relied upon by the First and Second Defendants to obtain an order in their favour.
26 Mr Docker, counsel for the First and Second Defendants, submitted that the Plaintiffs have not demonstrated special circumstances so as to justify the making of the order sought in the Notice of Motion. He submitted that the First and Second Defendants’ privilege against self-incrimination will be overridden if the order is made. Mr Docker submitted that the privilege against self-incrimination is a substantive right: Ross v Internet Wines Pty Limited (2004) 60 NSWLR 436. He submitted that the First and Second Defendants have not consented to the use of the subject affidavits in this way. He acknowledges that the position would be different if the affidavits are eventually entered into evidence, but submits that the Court should not assume that that will occur in this case.
27 Mr Docker submitted that the potential prejudice to the First and Second Defendants is obvious and serious. The First Defendant is 80 years old and the Second Defendant is 72 years of age. He submitted that the Court should take into account the pressure and hardship that would result to them if leave was granted to place these documents in the hands of the police.
28 Mr Docker submitted that it is open to the Plaintiffs to report their concerns to the police by reference to documents already in the possession of the Plaintiffs, without the Plaintiffs having leave to provide to police the subject affidavits. Mr Docker submitted that it is difficult to assess the contribution that the subject affidavits may make to justice in other proceedings in any event. This is because it is the Plaintiffs, and not the police, who are seeking to use the documents, but it will be the police who may bring other proceedings.
29 Further, Mr Docker submitted that there is no reason why the Court should grant leave now for the Plaintiffs to use the documents in this way in a manner which could potentially give the Plaintiffs an advantage in the proceedings. He submitted that the application was premature.
Resolution of Competing Submissions
30 A question arises as to whether the principles in Hearne v Street apply to the affidavit of the Second Defendant sworn 18 August 2008. On the evidence, this affidavit was volunteered in support of an ex-parte stay application made on 19 August 2008. At that time, the First and Second Defendants wished to bring an application to set aside the default judgment, and to stay the execution of the writ of possession which had issued as a consequence of the default judgment. The First and Second Defendants produced this affidavit to the Court and, in due course, served it and other affidavits for the purpose of the litigation.
31 In Hearne v Street, Hayne, Heydon and Crennan JJ at 155 [96] listed amongst the types of material disclosed, to which the principle applies, witness statements served pursuant to a judicial direction and affidavits. With respect to affidavits, their Honours identified, in footnote 101, the decisions of Goulding J in Medway v Doublelock Limited [1978] 1 All ER 1261 and of Mansfield J in Re Addstone Pty Limited (In Liq); Ex parte Macks (1998) 30 ACSR 156. These decisions both involved the use of affidavits provided pursuant to a court order. These decisions do not state that the implied undertaking principle extends to affidavits volunteered by parties other than by way of order or direction of the Court.
32 In Rowe v Silverstein [2009] VSC 157, Forrest J at [25] held that certain affidavits were not subject to the implied undertaking as they were not filed in the course of compulsory process, but were filed voluntarily to obtain an injunction. Forrest J referred to the decision of Hasluck J in Uniflex (Australia) Pty Limited v Hanneybel [2001] WASC 138 at [148], where it was held that the implied undertaking did not operate in relation to documents provided voluntarily to support an application in open court. However, in Moage Ltd v Jagelman (2002) 43 ACSR 173, Gzell J at 175-176 [11] described the implied undertaking as extending to affidavits and that “the undertaking is particularly strong when the information is provided pursuant to a court order or other compulsory process”. It was not said that this was a condition precedent for the implied undertaking to arise.
33 I propose to apply the Hearne v Street principle to the affidavit of the Second Defendant sworn 18 August 2008 as well as the other affidavits. I do so for several reasons. Firstly, the argument before me took place upon the basis that the principles were applicable, although Mr Finnane acknowledged that, if authority existed to support an alternative view, he would seek to rely upon it. Secondly, it may be correct technically that although the First and Second Defendants provided the affidavit of 18 August 2008 to the Deputy Registrar in support of the stay application without any order or direction, this affidavit only found its way into the hands of the Plaintiffs because of the order made by the Deputy Registrar on 19 August 2008. Thirdly, as the position is not free from doubt in any event, it is appropriate that I apply the same test to all the subject affidavits to which this application relates.
34 I am satisfied that the subject affidavits were brought into existence to advance the interests of the First and Second Defendants in this litigation. Although the subject affidavits annex a number of documents which were brought into existence before the litigation commenced, the subject affidavits themselves, which refer to the attached documents, were prepared by the First and Second Defendants with the intention of being used in evidence in the proceedings in this litigation.
35 At the time when the subject affidavits were brought into existence and provided to the Plaintiffs, the First and Second Defendants were legally represented. At no stage have the First and Second Defendants sought to invoke the privilege against self-incrimination with respect to the subject affidavits. No application was made by the First and Second Defendants to seek the protection provided by s.87 Civil Procedure Act 2005. The principles in Ross v Internet Wines Pty Limited have no direct application to the present case. Here, the First and Second Defendants have served the subject affidavits on an unqualified basis and without seeking any order from the Court to, in some way, maintain the privilege against self-incrimination. The time has not been reached where s.128 Evidence Act 1995 can be called in aid.
36 I accept that the tendency of the subject affidavits to incriminate the First and Second Defendants is a relevant factor to be taken into account for the purpose of undertaking the balancing exercise on an application such as this. I am not persuaded that the privilege against self-incrimination may be invoked in a way which assists the First and Second Defendants to resist the present application.
37 The courts have recognised that there can be a public interest in favour of disclosure in respect of information that is relevant to the investigation and prosecution of a criminal offence, which can override the public interest, in the administration of justice, in the preservation of the confidentiality of discovered documents: Rank Film Distributors Limited v Video Information Centre [1982] AC 380 at 447; Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476 at 486-487, 490-491; Moage Ltd v Jagelman at 176-177 [16], [21]; North East Equity Pty Limited v Golden West Equities Pty Limited [2008] WASC 190 at [42]-[45].
38 This public policy is illustrated by the offence in this State of concealing a serious indictable offence contrary to s.316 Crimes Act 1900. If a person has committed a serious indictable offence (punishable by imprisonment for five years or more) and another person knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender, and the person fails without reasonable excuse to bring that information to the attention of a member of the police force or other appropriate authority, then that person is guilty of an offence under s.316. Of course, the existence of the implied undertaking would no doubt constitute a reasonable excuse for the non-provision of the information to police whilst that undertaking remains on foot. However, the existence of this offence emphasises the policy foundation in support of the public interest in reporting of serious crime which is believed to have occurred so that the police may investigate.
39 Where a conflict arises, the Court must weigh up the competing public interests, as it will not necessarily be in every case where documents are sought in respect of the investigation and prosecution of the offence that the public interest in disclosure will outweigh the public interest in the preservation of the confidentiality of documents subject to the implied undertaking. Where an application such as this is made, it has been said that factors relevant to the exercise of the Court’s discretion will include the nature of the offence alleged, the cogency of the evidence sought to be adduced in support of it, the authority to which the documents are sought to be disclosed, the manner of the authority’s intended use and the possibility of misuse by that authority and any prejudice, actual or potential, which may be occasioned by the disclosure: Bailey v Australian Broadcasting Corporation at 486; North East Equity Pty Limited v Golden West Equities Pty Limited at [43]. A further relevant factor is whether the application has been brought for some personal advantage or improper purpose, rather than to advance the public interest: North East Equity Pty Limited v Golden West Equities Pty Limited at [44].
40 The subject affidavits in this case appear to provide evidence of the commission of offences of dishonesty, including obtaining a financial advantage by deception contrary to s.178BA Crimes Act 1900, an offence punishable by imprisonment for five years. There may be other dishonesty offences revealed in the subject affidavits. In my view, the circumstances here cannot be characterised as trivial or inconsequential: Bailey v Australian Broadcasting Corporation at 486. It might be considered that the acts of a mortgage broker, who encourages persons to make false statements for the purpose of obtaining finance which would not otherwise be granted, constitute a serious state of affairs where it would be understandable that the criminal law ought be invoked. Of course, if leave is granted so as to allow the police to investigate these matters using the subject affidavits, it will be a matter for the police to determine who would be prosecuted and for what offences. There may be factors bearing upon the exercise of discretion by police as to prosecution of individuals referred to in the subject affidavits. However, that would be a matter for investigating police to consider. The personal circumstances of the First and Second Defendants are, of course, relevant to the balancing exercise to be undertaken on the present application. However, in the circumstances of this case, I do not consider that those factors operate against a grant of leave.
41 I have given consideration to the question whether the application ought be declined at the present time, upon the basis that it could be agitated at a later time when these proceedings are at an end. I do not consider that this would be an appropriate course to take in this case. There is a public interest in the early investigation of alleged criminal conduct. Further, I do not consider that any real purpose would be served by refusal of this application for that reason. If the matter is referred to the police now, the First and Second Defendants may or may not wish to participate in any investigation. Of course, they cannot be compelled to answer questions in any police investigation. It will remain a matter for the First and Second Defendants to determine what course they wish to take in the present proceedings by way of evidence. In my view, that position will not be affected by the provision of the subject affidavits at this time to the police. It will be a matter for the First and Second Defendants as to whether they seek to avail themselves of the protection of a certificate under s.128 Evidence Act 1995 at any hearing of the matter.
42 I accept that the provision of the subject affidavits to the police at this time will increase the stress which no doubt is already being experienced by the First and Second Defendants. I am conscious that the material reveals that they became involved in this venture at the suggestion of others, and that their actions appear to have been taken in the interests of others, and not themselves. However, the provision of the subject affidavits to the police will facilitate the investigation of a number of persons, including the First and Second Defendants. What action may be taken by the police as part of that investigation and any subsequent prosecution would, as I have observed already, be a matter for the police in the exercise of discretion. I do not think that these factors ought stand in the way of the advancement of the public interest in the investigation and prosecution of crime.
43 I have had regard to Mr Docker’s submission that the present application, if granted, would operate to the advantage of the Plaintiffs in this case. I am not persuaded that this is correct. I accept that the making of the order will increase the level of stress on the First and Second Defendants. Apart from that, however, I do not consider that there would be an advantage to the Plaintiffs, and corresponding disadvantage to the First and Second Defendants, in the conduct of the litigation. Decisions will need to be made concerning evidence to be adduced in these proceedings, but that process will be required whether or not the present order is made. The possible use of s.128 Evidence Act 1995 will arise for consideration, whether or not the subject affidavits are placed in the hands of the police.
44 I am satisfied that the present application is made by the Plaintiffs for a proper purpose. I do not think that there can be any effective report to police of suspected crime, or an effective investigation by police in that respect, without the order sought by the Plaintiffs being made.
45 Mr Docker submitted that there were aspects of the documents in the hands of the Plaintiffs which ought to have put them on notice, in any event, that there were suspicious aspects concerning the addresses referred to in the application for finance. Mr Docker pointed to parts of the filed Defence of the First and Second Defendants in support of this submission. Given the breadth of factors relevant to the balancing exercise required, I have had regard to this argument. I do not think that it provides great assistance to the First and Second Defendants. The material contained in the subject documents points to a calculated process of creating false documents with respect to the purpose of the loan and the giving of a false address to maximise the prospect of securing the loan. The evidence of the Plaintiffs on the present application reveals that, had the true position been revealed, the finance would not have been extended. The existence of documents which may provide some room for argument on these issues does not, in my view, provide any real assistance to the First and Second Defendants in resisting the present application.
46 I have had regard to the competing public interest in the confidentiality of documents which are subject to the Hearne v Street principle. I am satisfied that it is outweighed by the public interest in the provision of the subject affidavits to facilitate investigation by police of suspected crime.
47 I am satisfied that the Plaintiffs have demonstrated special circumstances in this case to warrant the making of the order sought in the Notice of Motion. The Plaintiffs have demonstrated that there are circumstances in this case which take the matter out of the ordinary course: Holpitt Pty Limited v Varimu Pty Limited (1991) 29 FCR 576 at 579. Good reason has been shown why the order sought should be made: Liberty Funding Pty Limited v Phoenix Capital Limited (2005) 218 ALR 283 at 289 [31].
48 I do not consider that any order should be made for disclosure of some, but not all, of the documents. Having undertaken the relevant balancing exercise, I am satisfied that an order should be made permitting the Plaintiffs to provide the subject affidavits to officers of the New South Wales Police Force.
Costs
49 I have determined that the relief sought in the Plaintiffs' Notice of Motion should be granted. The question of costs has arisen. Mr Finnane submitted that, as the Plaintiffs were successful in the application, an order should be made that the First and Second Defendants pay the Plaintiffs' costs of the application. He submits that it was open to the First and Second Defendants to consent to the orders sought, and that this would have made a substantial difference to the nature of the application, and the extent to which the Plaintiffs were required to positively press it by way of a contested application. Alternatively, Mr Finnane submitted that the costs of the application should be the Plaintiffs’ costs in the cause.
50 Mr Docker has submitted that no order for costs should be made against the First and Second Defendants. In that regard, he submitted that it was necessary for the Plaintiffs to approach the Court for leave, irrespective of the attitude of the First and Second Defendants to the application. He submitted that his clients did not file any evidence on the application, and effectively appeared to make submissions. Even if the First and Second Defendants had consented to (or not opposed) the orders, he submits that it would have been necessary for a Judge of this Court to determine the application on the merits, having regard to its nature.
51 I accept that it was necessary for the Plaintiffs to make application to the Court, irrespective of the attitude of the First and Second Defendants to the application. Arguments were advanced with respect to the application which raised some issues of principle. The question of costs is discretionary. I have accepted that the application was brought on a proper basis and should be granted. The purpose of an order for costs, of course, is not punitive. Costs operate as an indemnity, and to compensate the successful party. The Court should have regard to the necessity for an application such as this to be brought. This consideration is referred to, with respect to costs, in some of the cases to which I have referred in this judgment (see, for example, Wellness Pty Limited v Hamilton-Bond at [19]).
52 In all the circumstances, I am satisfied that the appropriate order is that there be no order as to costs of this application, the effect of which is that each side will bear his, her or its own costs.
53 I do not consider that it is appropriate to order that the costs of this application be costs in the cause. This is a discrete interlocutory application of a type which is detached from the principal proceedings and their outcome.
Orders
54 Accordingly, I make the following orders:
(b) I make no order as to costs of this application.
(a) I grant the Plaintiffs leave to provide the affidavits, annexures and exhibits referred to in paragraph [4] of this judgment to an officer or officers of the New South Wales Police Force for the purpose of reporting the possible criminality of the First, Second and Third Defendants and other persons mentioned in the said affidavits and accompanying documents;
55 I stay the execution of Order 1 which I have made today; that stay to extend until 5.00 pm on Friday 22 May 2009.
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