Rogan v White - [2024] FCA 1163

FEDERAL COURT OF AUSTRALIA
Rogan v White [2024] FCA 1163

File number: NSD 1267 of 2024

Judgment of: JACKMAN J

Date of judgment: 2 October 2024

Catchwords: PRACTICE AND PROCEDURE – suppression – whether order necessary to prevent prejudice to the proper administration of justice – where parts of affidavits alleged to be the subject of legal professional privilege and without prejudice privilege

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Cases cited: Grant v Downs (1976) 135 CLR 674

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 9

Date of hearing: 2 October 2024

Counsel for the Applicant: Ms B Nolan

Solicitor for the Applicant: KMD Law & Advisory

Counsel for the Respondent: Mr JP Redmond and Mr D Thomas

Solicitor for the Respondent: Betar Lawyers

ORDERS

NSD 1267 of 2024

IN THE MATTER OF LINDA ROGAN

BETWEEN:
LINDA ROGAN

Applicant

AND:
RICHARD JOHN WHITE

Respondent

ORDER MADE BY:

JACKMAN J

DATE OF ORDER:

2 OCTOBER 2024

THE COURT ORDERS THAT:
1.Until 4.15 pm on the first day of the final hearing of this matter, the following evidence be suppressed and not published, and access to it be given only to the legal representatives for the parties, pursuant to ss 37AF(1)(b)(i) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the grounds that it is necessary to prevent prejudice to the proper administration of justice:
(a)the following portions of the affidavit of Linda Marie Rogan dated 12 September 2024: paragraphs 86 and 87, annexure LR21, and pages 137 to 138 of annexure LR22;
(b)the following parts of the affidavit of Linda Marie Rogan dated 30 September 2024: paragraphs 3, 4 and the first line of paragraph 5, up to but not including the word “conversations”.

2.The interlocutory application otherwise be dismissed.
3.Mr White pay the costs of Ms Rogan in relation to the interlocutory application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Delivered ex tempore, revised from transcript
JACKMAN J:

These proceedings concern an application by Ms Rogan to set aside a bankruptcy notice issued by Mr White. The interlocutory application before me seeks orders for suppression and non-publication pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground referred to in s 37AG(1)(a), namely that the order is necessary to prevent prejudice to the proper administration of justice in relation to certain portions of the affidavits of Ms Rogan dated 12 and 30 September 2024.
There are two categories of Ms Rogan’s evidence which are in question. First, in Ms Rogan’s affidavit of 12 September 2024, Mr White seeks to have suppressed paragraphs 86 and 87, annexure LR21, and pages 137 to 138 of annexure LR22. Second, Mr White seeks to have suppressed paragraphs 3 and 4 of Ms Rogan’s affidavit of 30 September 2024 and the first line of…

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.

Continue reading Rogan v White

Details

AGLC: Rogan v White [2024] FCA 1163
Case: [2024] FCA 1163
Decision Date: 2 October 2024

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Rogan v White involves a dispute over the suppression of certain documents that were alleged to contain privileged information. Linda Marie Rogan sought an order to prevent the publication of parts of affidavits she had submitted, claiming they contained privileged information. The respondent, Mr White, contested this application. The central legal issue was whether the suppression of the specified parts of the affidavits was necessary to prevent prejudice to the proper administration of justice.

The court considered the nature of the information at stake, including the potential for legal professional privilege and without prejudice privilege to protect certain communications. The judge examined whether the disclosure of the information would indeed prejudice the administration of justice, particularly focusing on the impact on the fairness and integrity of the proceedings. Ultimately, the court found that certain portions of the affidavits were indeed subject to privilege and that their suppression was necessary to prevent potential prejudice to the proceedings.

Consequently, the court granted the application in part, ordering the suppression of specific parts of the affidavits until the final hearing of the matter. The court also directed that Mr White pay the costs of Ms Rogan related to the interlocutory application. The detailed orders specified the exact parts of the affidavits to be suppressed and the conditions under which this suppression would apply, ensuring that the integrity of the legal process was maintained while protecting the rights of both parties involved.

Orders

Orders of the court

1. Until 4.15 pm on the first day of the final hearing of this matter, the following evidence be suppressed and not published, and access to it be given only to the legal representatives for the parties, pursuant to ss 37AF(1)(b)(i) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the grounds that it is necessary to prevent prejudice to the proper administration of justice:

(a) the following portions of the affidavit of Linda Marie Rogan dated 12 September 2024: paragraphs 86 and 87, annexure LR21, and pages 137 to 138 of annexure LR22;

(b) the following parts of the affidavit of Linda Marie Rogan dated 30 September 2024: paragraphs 3, 4 and the first line of paragraph 5, up to but not including the word “conversations”.

2. The interlocutory application otherwise be dismissed.

3. Mr White pay the costs of Ms Rogan in relation to the interlocutory application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	NSD 1267 of 2024
Judgment of:	JACKMAN J
Date of judgment:	2 October 2024
Catchwords:	PRACTICE AND PROCEDURE – suppression – whether order necessary to prevent prejudice to the proper administration of justice – where parts of affidavits alleged to be the subject of legal professional privilege and without prejudice privilege
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG
Cases cited:	Grant v Downs (1976) 135 CLR 674
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	9
Date of hearing:	2 October 2024
Counsel for the Applicant:	Ms B Nolan
Solicitor for the Applicant:	KMD Law & Advisory
Counsel for the Respondent:	Mr JP Redmond and Mr D Thomas
Solicitor for the Respondent:	Betar Lawyers

NSD 1267 of 2024
IN THE MATTER OF LINDA ROGAN
BETWEEN:	LINDA ROGAN Applicant
AND:	RICHARD JOHN WHITE Respondent

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	2 OCTOBER 2024