Renehan v Leeuwin Ocean Adventure Foundation Ltd - [2005] NTSC 22

[Back to Main List] [Back to NTSC 2005 List] Renehan v Leeuwin Ocean Adventure Foundation Ltd & Anor [2005] NTSC 22

PARTIES: TRACEY ANN RENEHAN BY HER LITIGATION GUARDIAN GERALDINE RENEHAN

LEEUWIN OCEAN ADVENTURE FOUNDATION LIMITED and COMMONWEALTH OF AUSTRALIA

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: No. 33 of 1998 (9803191)

DELIVERED: 5 May 2005

HEARING DATES: 20-21 April 2005

JUDGMENT OF: MILDREN J

CATCHWORDS:

PRACTICE – subpoena duces tecum – application to set aside subpoena – whether subpoena offended Navigation (Marine Casualty) Regulations 1990

ESTOPPEL – issue estoppel – whether issue estoppel arises in respect of an issue determined in interlocutory proceedings – final determination

DISCOVERY – application for order to produce protected documents – documents created as result of inquiry under Navigation (Marine Casualty) Regulations 1990 – whether public benefit in disclosure of information outweighs possible effect on future investigations – relevant factors

Legislation
Navigation (Marine Casualty) Regulations 1990 (Cwth) reg 8, reg 15(1), reg 15(5), reg 15(5)(a); Navigation (Marine Casualty) Repeal Regulation 2003 reg 5

Followed
Conway v Rimmer [1968] AC 910; Sankey v Whitlam (1978) 142 CLR 1

Referred to
Christoforidis v Cygnet Bulk Carriers SA (2002) 122 FCR 1; Australian National Airlines Commission v The Commonwealth of Australia and Another (1975) 132 CLR 582; Santos v Delphi Petroleum Pty Ltd; [2002] SASC 272; BC200208003

REPRESENTATION:

Counsel:
Plaintiff: M. Maurice QC & P.M. Barr QC
Department of Transport and
Regional Services: N. Christrup

Solicitors:
Plaintiff: Cridlands
Department of Transport and
Regional Services: Minter Ellison

Judgment category classification: A
Number of pages: 13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Renehan v Leeuwin Ocean Adventure Foundation Ltd & Anor
[2005] NTSC 22
No. 33 of 1998 (9803191)

BETWEEN:

TRACEY ANN RENEHAN BY HER LITIGATION GUARDIAN GERALDINE RENEHAN
Plaintiff

AND:

LEEUWIN OCEAN ADVENTURE FOUNDATION LTD and THE COMMONWEALTH OF AUSTRALIA
Defendant

CORAM: MILDREN J

REASONS FOR JUDGMENT

(Delivered 5 May 2005)

[1] This is an application to set aside a subpoena for the production of documents issued by the solicitors for the plaintiff and directed to the Department of Transport and Regional Services of the Commonwealth. The subpoena seeks the production of inter alia certain documents prepared for the purposes of or as a result of an investigation conducted in accordance with reg 8 of the Navigation (Marine Casualty) Regulations 1990 (Cwth) by a Captain Leverton as a result of an accident which occurred aboard the sail training ship Leeuwin on 12 June 1996. The plaintiff claims to have fallen from the futtock shrouds of the main mast onto the deck below and has brought an action for damages against the defendants for negligence.
[2] Upon the return of the subpoena, counsel for the plaintiff, Mr Maurice QC, limited the call for the documents to the notes of an interview between Captain Leverton and a sail trainee, one Michael Baker, who was on board…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NTSC 22
Decision Date: 05 May 2005

CaseChat Overview and Summary

This case involved Tracey Anne Renehan, represented by her litigation guardian Geraldine Renehan, who brought an action for damages against Leeuwin Ocean Adventure Foundation Ltd and the Commonwealth of Australia for negligence after she fell from the futtock shrouds of the main mast onto the deck of the Leeuwin sail training ship. The defendants sought to set aside a subpoena duces tecum that had been issued for the production of documents created during an investigation into the accident. The plaintiff's counsel limited the subpoena to notes taken by Captain Leverton during an interview with Michael Baker, a witness to the accident. The legal issues before the court were whether regulation 15 of the Navigation (Marine Casualty) Regulations 1990 precluded the production of documents to a court, and if the public benefit in disclosing the information outweighed any possible effect on future investigations. Mildren J held that the subpoena must be set aside as regulation 15(1) precluded the production of documents to a court except in the circumstances set out in regulation 15(1). However, the court granted an order requiring the disclosure of the information sought, limited to the Court, the plaintiff's solicitors and counsel, and the counsel and solicitors for each of the defendants. The judge found that the plaintiff had established her entitlement to the order, and that the possible benefits to the plaintiff in disclosing the information outweighed the possible effects on future investigations.

Orders