Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [1998] FCA 807

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - application for order that respondent not be heard by the Court on its application to set aside a notice to produce - whether party subject of filed notice of motion for contempt should be heard by Court - exercise of Court's discretion. KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1955) 56 FCR 189 Young v Jackman (1986) 7 NSWLR 97 Australian Securities Commissioner v MacLeod (Drummond J, Federal Court of Australia, 23 November 1994, unreported) TRUTH ABOUT MOTORWAYS PTY LTD -v- MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LTD NG 833 of 1997

FOSTER J 1 July 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 833 of 1997

BETWEEN: truth about motorways pty ltd

(acn 080 135 191)

Applicant

AND: macquarie infrastructure investment management ltd (acn 072 609 271)

Respondent

JUDGE: FOSTER J

DATE OF ORDER: 1 July 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 833 of 1997

BETWEEN: truth about motorways pty ltd

(acn 080 135 191)

Applicant

AND: macquarie infrastructure investment management ltd (acn 072 609 271)

Respondent

JUDGE: FOSTER J

DATE: 1 July 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (Extempore) I have before me today a notice of motion brought on behalf of the respondent in these proceedings by which it seeks the setting aside of certain subpoenas and a notice to produce issued by the applicant on 17 June 1998. The notice to produce in question was issued to the respondent. The respondent, in relation to this notice of motion, is represented by senior counsel. In the course of that hearing a matter has arisen which requires a decision on my part. An application has been made orally in Court by counsel for the applicant but, by the consent of the parties, it is to be treated as if it were a notice of motion. I accordingly treat it as such. The order sought in relation to that notice of motion is that senior counsel for the respondent not be heard in relation to the application to set aside the subpoenas in question and also in relation to the setting aside of a notice to produce issued by the applicant and directed to the respondent on 17 June 1998. The basis of the application is that there is in existence a notice of motion for contempt dated 22 June 1998 brought by the applicant against the respondent. That notice of motion alleges that a contempt of Court has occurred as a result of the respondent not having adequately answered a previous notice to produce served upon it by the applicant and dated 5 March 1998. In some respects portions of that notice to produce, I observe, cover the same ground as the notice to produce dated 17 June 1998 which is the subject of the current application that it be set aside. Regardless of this, the existence of the notice of motion for contempt of 22 June and its accompanying statement of charge is put forward by counsel for the applicant as providing a sufficient basis for my denying to the respondent its right to be heard, at least in respect of its application to set aside the later notice to produce, and, as I apprehend the matter, also in relation to its application to set aside the subpoenas which have been issued. The application is based upon portions of a judgment given by her Honour, Beazley J in the case of KP Cable Investments v Meltglow Pty Ltd (1995) 56 FCR 189. In that case her Honour found it necessary to consider an application for costs in respect of an application relating to the contempt of Court of the respondent in that case. There is no need to go into the facts of it. Clearly there was a question of whether undertakings given to the Court had not been complied with. Her Honour in dealing with the question of contempt and its effect upon the rights of parties to be heard said (at 205):- "It was not in dispute that, to state the matter in broad terms, a party in contempt of court will not be heard by the court. The respondent's solicitor submitted that the true rule was that the principle only applied after there had been a formal finding of contempt after properly constituted contempt proceedings had been heard." Her Honour then referred to an authority which had been relied upon in support of that submission. It is unnecessary for me to set that out or to refer to that portion of her Honour's reasons. Her Honour later referred to the case of Young v Jackman (1986) 7 NSWLR 97, a decision of Young J of the Supreme Court of New South Wales, and also to an unreported decision of Drummond J of this Court in Australian Securities Commission v MacLeod (23 November 1994). In the latter case it appears that his Honour was dealing with a case where there had been no contempt proceedings. Her Honour then proceeded to say:- "In my opinion, the principle is not one which is confined to the case where an applicant has already been found guilty of contempt. Contempt cases while not unusual are not common. There are undoubtedly many reasons for that, not the least of which is likely to be the attendant costs of bringing such proceedings. However, there is no reason in principle, where there has been a breach of the court's orders, that the party in breach should be prevented from obtaining relief from the court just as that principle applies where a party has been found guilty of contempt. I am also of the opinion that the court has a discretion as to whether to hear such a party. Were it otherwise, a technical or explicable disobedience could result in a party being seriously prejudiced." As I apprehend it, counsel for the applicant relies on this statement of principle in the notice of motion now brought. Plainly, as indeed was conceded in argument, the matter is one of discretion. I am being asked to exercise my discretion to prevent arguments being adduced by senior counsel for the respondent in relation to the notice of motion or, at least one aspect of it, brought before me this morning. I am being asked to do it on the basis that there is in existence a notice of motion for contempt to which I have already made reference. That notice of motion has of course not been heard nor considered. No doubt directions in relation to its hearing will be necessary including directions for the filing of evidence on both sides. Therefore, at the present moment it is no more than a notice of motion which is unsupported. In my view, I could not possibly exercise my discretion in favour of making the order sought. Nor, in my view, was there any reasonable basis demonstrated for my so doing. In those circumstances I dismiss the notice of motion. The Court has been occupied in considering it this morning for nearly three-quarters of an hour, if not longer. In those circumstances I think it is appropriate that it be dismissed with costs. I should indicate that an application was made by the respondent that it should be dismissed with indemnity costs. I think in all the circumstances it is sufficient if I merely dismiss it with costs and I so order. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.