World Projects Corporation v Sydney Organising Committee for the Olympic Games

[1999] NSWSC 781

CITATION:	World Projects Corporation v Sydney Organising Committee for the Olympic Games [1999] NSWSC 781
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	3230/99
HEARING DATE(S):	30 July 1999
JUDGMENT DATE:	30 July 1999
PARTIES :	World Projects Corporation (P) Sydney Organising Committee for the Olympic Games (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	K. S. Angyal (P) M. O'Brien (D1) J. R. J. Lockhart (D2)
SOLICITORS:
CATCHWORDS:
DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 30 July 1999

3230/99 WORLD PROJECTS CORPORATION -v- SYDNEY ORGANISING COMMITTEE FOR THE OLYMPIC GAMES & ORS

JUDGMENT

1    MASTER: There is presently before me an application made by the second defendant, the Honourable Michael Knight, pursuant to liberty in that regard reserved by Young J last Friday 23 July 1999, that the second defendant have access to certain material, being an audio tape which was produced by the plaintiff, World Projects Corporation, pursuant to a notice to produce dated 20 July 1999 which was answered by the plaintiff before his Honour. The plaintiff opposes the application. The first defendant, the Sydney Organising Committee for the Olympic Games supports the application by the second defendant. 2    The proceedings were instituted by summons filed on 16 July 1999. In support of that summons there was filed an affidavit of William Robert Lutt sworn 19 July 1999. Paragraph 89 of that affidavit sets forth a conversation between that deponent, the second defendant and a third person. 3    The tape which is the subject of the present application is, so I am informed, a tape of the conversation which appears in paragraph 89 of the affidavit. On its face the paragraph does not reveal that the entirety of the conversation appears in that paragraph. 4    It is not questioned that there is a discretion in the Court as to whether access should be allowed to material which is produced to the Court on subpoena or, as here, produced to a party in answer to a notice to produce. 5    The matter which I must decide is whether the discretion of the Court should be exercised in favour of the second defendant by allowing access or in favour of the plaintiff by refusing access. 6    It has been submitted by Counsel for the plaintiff that access should be refused on a number of grounds. Firstly, that there is what has been described as a forensic advantage to the plaintiff in refusing such access at this stage of the proceedings. Further, and this appears to me to be another aspect of that first submission, that the plaintiff is entitled to see the defences of the defendants, and in particular the defence of the second defendant, before access to the tape is allowed to him. Although as I have recorded, the proceedings were instituted by summons, Young J on 23 July made orders for pleadings, and in compliance with those orders the plaintiff filed a statement of claim on 27 July 1999. No defence has yet been filed on behalf of either of the defendants. 7    I have been taken to a number of authorities relevant, firstly, to the existence of the discretion in the Court to allow or to refuse access to the tape, and, secondly, relevant to the way in which that discretion should be exercised. Those authorities include the decision of the Court of Appeal of New South Wales in National Employers Mutual General Association Limited -v- Waind Hill (1978) 1 NSWLR 372, and in particular the judgment of the President of the Court of Appeal, Moffitt P, commencing at 376 and especially the passages at 381 to 383; the decision of Clarke J (as his Honour then was) in Marcus -v- Provincial Insurance Co Limited (unreported, 11 May 1993); and the decision of Wootten J in Queensland Mine -v- Hudson (1976) ACLC 28.660. 8 It seems to me, in the instant case, that it is particularly relevant to the exercise of the court's discretion that the tape purports to be a tape of a conversation between the principal of the plaintiff and the second defendant as well as one other person. Further, it seems to me to be of considerable significance that this tape is not material which, for example, could be used to cross-examine the second defendant with an element of surprise, since substantial parts of it are transcribed in the affidavit of Mr Lutt to which I have already referred. 9 Since the passage in paragraph 89 of Mr Lutt's affidavit does not assert that it is the entire transcript of the tape, it seems to me that the second defendant is entitled to have access to the tape so that he can satisfy himself firstly as to the accuracy of what appears in the affidavit, and secondly as to the completeness of what appears in the affidavit. 10 Accordingly, I consider that the interests of justice are appropriately served by the Court exercising its discretion in favour of the second defendant and making an order that each defendant have access to the tape. 11 I make the following orders:

(1) I order that access to a standard audio tape produced by the plaintiff to the Court on 23 July 1999 be granted to each defendant and to the respective legal representatives of each defendant, such access to be exercised within the Exhibits Office of the Court, and that each defendant be permitted to make a written transcript of such audio tape and to copy such audio tape.
(2) I order that the costs of today's hearing be the costs of the second defendant in the proceedings.
(3) I reserve liberty to apply to a Master on twenty-four hours notice.

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