Rogan v White
[2024] FCA 1163
•2 October 2024
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 transcriptJACKMAN 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 paragraph 5 of that affidavit up to but not including the word “conversations”. Before the hearing today commenced, Mr White was seeking suppression of the whole of paragraph 5 of that affidavit but abandoned that position during argument.
As to the first category of evidence, the affidavit of Mr Betar, the solicitor for Mr White, indicates prima facie that the communication in question is the subject of a claim for legal professional privilege, and that it was disclosed to Ms Rogan inadvertently and without any intention to waive privilege. Ms Nolan foreshadows a counterargument to the effect that the privilege will not protect communications which embody or disclose misconduct. However, I do not regard this as the appropriate occasion for making a definitive finding as to whether Mr White’s claim for legal professional privilege will be upheld. It is necessary for present purposes only for me to say that Mr White’s argument appears to be reasonably available, and if the argument succeeds, then he will establish a valid claim for the confidentiality of that communication.
The ground in s 37AG(1)(a) sets a high threshold of necessity in preventing prejudice to the proper administration of justice. There is a strong public interest in open justice as is reflected in s 37AE. The administration of justice also supports claims for legal professional privilege which, in turn, ensure that legal advice will be given candidly on the basis of full and frank instructions by the client of the legal practitioner. As Stephen, Mason and Murphy JJ said in Grant v Downs (1976) 135 CLR 674 at 675:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision.
In my view, the administration of justice in the present case does require that this first category of evidence be suppressed and subject to a non-publication order. The order which I propose to make will be until 4.15 pm on the first day of the final hearing of the proceedings, which will provide ample time for the trial judge to rule on the claim for privilege over this material.
As to the second category of evidence, this evidence concerns a conversation between Ms Rogan and Mr Betar over which Mr White foreshadows that he will claim without prejudice privilege on the basis that the communications were made as part of a genuine attempt to resolve the proceedings. Again, a counterargument has been foreshadowed on the part of Ms Rogan to the effect that the privilege will not protect communications which reflect misconduct. It appears to me that it is reasonably arguable that the evidence which is sought to be made the subject of the suppression order will be rejected on the ground of without prejudice privilege, although I note again that there is a tenable argument against that proposition.
In my view, the proper administration of justice requires that there not at this stage be disclosure of evidence which may well, in due course, be ruled inadmissible on the ground of without prejudice privilege. Again, the doctrine of without prejudice privilege enjoys a paramountcy to other imperatives as to trials being conducted with the benefit of all available documentary and other evidence and paramountcy to the general need for open justice. I propose again that the order expire at 4.15 pm on the first day of the final hearing in order to give the trial judge a sufficient opportunity to rule on the objection.
As to costs, Mr White has agreed to pay the costs of Ms Rogan in relation to the interlocutory application, and I regard that concession as appropriate in the circumstances.
I note for completeness that order 3 made by the Registrar yesterday has now expired.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman. Associate:
Dated: 3 October 2024
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