Roads Corporation v Love

[2008] VSC 396

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6693  of 2004

ROADS CORPORATION	Applicant
v
THOMAS JAMES LOVE	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 SEPTEMBER 2008
DATE OF RULING:	26 SEPTEMBER 2008
CASE MAY BE CITED AS:	ROADS CORPORATION v LOVE
MEDIUM NEUTRAL CITATION:	[2008] VSC 396

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Directions concerning confidential documents the subject of subpoena

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Delany SC with Mr P. Chiappi	Garland Hawthorn Brahe
For the Respondent	Mr A.G. Southall QC with Mr D.R.J. O’Brien	McClusky’s Lawyers

HIS HONOUR:

1. The applicant, Roads Corporation, seeks orders facilitating access by the parties' legal advisers and expert witnesses to documents held by Hanson Construction Materials Pty Ltd.  Those orders are sought in terms which reflect consent by Hanson to access to material which is confidential, or regarded as confidential by it.

1. Mr Love opposes the orders.  Mr O'Brien says first that the application has been brought on precipitously.  Secondly, that it goes outside the framework previously established providing for the resolution of subpoena issues before Master Daly.  And thirdly that the order does not adequately protect the position of Mr Love, because if Hanson does not consent to access being given to the documents by Mr Love personally, he will have to obtain a further order of the Court.

1. This said, Mr O'Brien concedes that the documents are potentially relevant to live issues in the case and that is probable if they have any relevance, that they will come into evidence in the proceeding one way or another.

1. It seems to me that once those concessions are made, then despite the somewhat sudden nature of the application when viewed from Mr Love's side, that the orders should be made, but that I should further order by way of a new order 4 that the question of the entitlement of the plaintiff, Mr Love, to any order pursuant to paragraph 3 enabling him to view the documents the subject of this order be referred to Master Daly for determination.

1. I make that order although it may not strictly be necessary having regard to my previous orders; because it seems to me that if I am to seek to expedite the process by making the orders that Roads Corporation seeks, I should also provide an express mechanism for Mr Love to bring on the question of his personal entitlement to view documents before Master Daly and I should do that in a manner which removes any doubt as to that entitlement and enables expeditious application to be made on his behalf should that be necessary.

1. I should add that I would hope that it would not be necessary and that it's accepted by Hanson that Mr Love has an entitlement.  It's plain that he has given evidence by affidavit in this matter which goes into the quarrying aspects of his claim and it's difficult to see how if the material is relevant it can ultimately can be kept out of his hands.  This said, if Hanson had some objection of which I am not presently advised that objection should be determined expeditiously before Master Daly.

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