The Trade Practices Commission v Ampol Petroleum (Victoria) P/L

[1994] FCA 262

JUDGMENT No. ......, ...... 262 97 , .... 1

VICTORIA DISTRICT REGISTRY GENERAL DMSION 1 IN THE FEDERAL COURT OF AUSTRALIA )

THE TRADE PRACTICES COMMISSION

Applicant

and

AMPOL PETROLEUM (VICTORIA) PTY LTD.. WERNER SPREEN, KENNETH McKAY. WILLIAM MITHEN and ROBERT MacARTHm

Respondents

Coram:	Olney J
Place:	Melbourne
Date :	11 May 1994

MINUTE OF ORDER

THE COURT ORDERS THAT:

The respondents pay the costs of and incidental to the applicant's notice of motion filed on 17 December 1994 up to and including the handing down of the Court's decision and reasons for judgment on 25 March 1994 and that there be no other order for costs in relation to the said notice of motion.

--	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

NOTE

IN THE FEDERAL COURT OF AUSTRATsIA	)
VICTORIA DISTRICT REGISTRY	1
GENERAL DMSIQN	1

TBE TRADE PRACTICES COMMISSION

Applicant

and

AMPOL PETROLEUM (VICTORIA) PTY LTD.. WERNER SPREEN,

KENNETH McKAY. WILLIAM MITBEN and ROBERT MacARTHOR

Respondents

Coram:	Olney J
Place:	Melbourne
Date:	11 May 1994

RESERVED DECISION - COSTS

The parties to this proceeding have been in dispute over the applicant's claim for legal professional privilege in relation to some of its discovered documents.

On 25 March 1994 I gave reasons for upholding the applicant's claim in respect of the bulk of the documents in question but was unable to reach a conclusion as to some documents due to

the inadequacy of the description of the relevant documents.

On that occasion I gave directions requiring a further af f idavit to be filed. This was duly done and on 14 April

1994 I published supplementary reasons in which I upheld the

claim for privilege. The question of costs was reserved and the parties were given leave to make written submissions in

relation thereto. Both parties have now filed submissions.

Each seeks an order in its own favour.

In the ordinary course, costs would follow the event and as the applicant has been entirely successful in maintaining its various claims for legal professional privilege it is necessary for the respondent to establish that in the circumstances of the case, there are compelling reasons that justify a departure from the norm.

The full text of the respondentsc submission is as follows:

1.     On 12 November 1993, the Applicant provrded a list of documents ("first discovery document") which included a claim for legal professional privilege in respect of documents which were broadly described but not enumerated. Further, the list included a c l a m for public interest immunity.

2.     On 25 November 1993, the Applicant prov~ded a supplementary

list of documents ("second discovery document") which set out the documents in respect of which legal professional privilege was claimed. The claim for publrc interest m u n r t y was abandoned, following the Respondents' challenge as to the basrs for that claim. No attempt to justify the initLa1 claim has been glven.

3.     On 3 December 1993, the Applicant was ordered to provrde a

further and better description of the documents in its supplementary list referred to in paragraph 2 above. The further and better descrrption of the Applicant's pr~vilege

documents ("third discovery document") was provlded on 10 December 1993. The Respondents considered that the documents were still not adequately described so as to enable the Respondents to rdentrfy the basis for the claim of legal professronal privilege.

4.    On 10 December 1993, the Applrcant provided a further supplementary list of documents ("fourth discovery document").

5.     The Respondents filed a notice of motion on 17 January 1994, (sic, 17 December 1993) which was heard on 8 February 1994, following which the Applrcant filed and served a second further supplementary list of documents dated 14 February 1994 ("fifth discovery document"). This constrtuted a list of documents parts of which were claimed to be privileged. On 25 March 1994, Your Honour publ~shed "Reasons for Decision" which, inter alia, sought affidavit evidence supporting the claim for legal professional privilege, as the list dated 14 February 1994 was "inadequate to enable any assessment to be made as to whether or not the documents are susceptible to a claim to legal professional privrlege ...".

6.    Since then, the Applrcant has provided a third further supplementary list of documents ("sixth discovery document") dated 31 March 1994.

7.     The Applicant has provided discovery by way of six discovery documents between November 1993 and March 1994. The Applicant's c l a m for public interest immunaty was abandoned following questioning by the solicitors for the Respondent, without attempting to justify the initial claim. Further, the Applicant has consistently failed to particularime the documents for which legal professional priv~lege was claimed and to indicate the basis of the claim.

8.     In light of the course of events descr~bed above, we submit that the Respondents had serious doubts as to the val~dity of the Aeelicant's claim for legal professional pr~vilege, and accordi;rgly that it was appropriate to seek an order for the ~roduction of the documents referred to in Part 2 of Schedule 1 of the Applicant ' s supplementary list of documents dated 25 November 1993 and in the alternative, for a further and better description of those documents specifying the precise basis Of the claim for privilege in each case. In the premises, we submit that the Respondents are entitled to an order that the Applicant pay the Respondents' costs of the notice of motion, and that this c l a m rs particularly strong after 25 March 1994,

following the provis~on of the frfth discovery document.

I do not understand there to be any dispute as to the basic facts asserted by the respondents. However, in judging the matter it must be kept in mind that it is the liability for the costs of the respondents' notice of motion filed on 17 December 1993 that is under consideration and in those circumstances I do not think that in the present context any consideration should be given to the claim for public interest immunity which was not pursued. It may be that that matter is something which will be appropriate to take into account in due course in determining the overall question of the costs of the proceedings but it does not arise at this stage.

But for the filing of the applicant's second further

supplementary list of documents dated 14 February 1994 after the conclusion of the hearing of the notice of motion on 8 February 1994 but before the matter had been decided, the decision given on 25 March 1994 would have been the end of the

matter. As it is, the document of 14 February 1994 complicated the matter by reason of the inadequacy of the information it contained. Once the position was explained

the problem disappeared. In my opinion the applicant, although ultimately entirely successful, should be deprived of any costs associated with the preparation of the affidavit filed following my decision of 25 March 1994 and any attendances at court and submissions prepared since that date in relation to the final resolution of the notice of motion.

The justice of the case will be served if the applicant has its costs of and incidental to the respondents' notice of motion filed on 17 December 1993 up to and including the handing down of my decision on 25 March 1994, and there be no other order for costs.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable M r Justice Olney

Associate: K&T~

Dated: I[ dy 144+."