FEDERAL COURT OF AUSTRALIA Subpoena – confidential documents – whether call on subpoena should be permitted, and if so, how inspection should occur. READING AUSTRALIA PTY LIMITED V AUSTRALIAN MUTUAL PROVIDENT SOCIETY and AMP INVESTMENTS LIMITED NG 326 of 1997 JUDGE: BEAUMONT J. PLACE: SYDNEY DATE: 6 JULY 1998 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 326 of 1997 BETWEEN: READING AUSTRALIA PTY LIMITED Applicant AND: AUSTRALIAN MUTUAL PROVIDENT SOCIETY First Respondent AMP INVESTMENTS LIMITED Second Respondent JUDGE: BEAUMONT J. DATE OF ORDER: 6 july 1998 WHERE MADE: SYDNEY ORDERS: 1. Direct that the documents be produced to the Court by Village Roadshow but that inspection be restricted to Mr Finch SC on behalf of the applicant upon the filing and serving of a written undertaking by Mr Finch not to disclose their contents to any other person, except with the leave of the Court. 2. Direct that the documents produced by Village Roadshow are to be placed in an envelope marked "confidential", not to be opened except: (a) by Mr Finch SC upon Mr Finch's written undertaking to the Court that he will not disclose the contents to any person except with the leave of the Court having been filed and served; or (b) by leave of the Court. 3. Direct that the envelope be returned to the custody of the solicitors for Village Roadshow and that they may accordingly use the documents as they have indicated. 4. Reserve costs of today's proceedings. 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 326 of 1997 BETWEEN: READING AUSTRALIA PTY LIMITED Applicant AND: AUSTRALIAN MUTUAL PROVIDENT SOCIETY First Respondent AMP INVESTMENTS LIMITED Second Respondent JUDGE: BEAUMONT J. DATE: 6 july 1998 PLACE: SYDNEY REASONS FOR JUDGMENT BEAUMONT J: On 28 August 1997 I dealt with a motion seeking to set aside a subpoena and seeking further or other orders as might then be appropriate. For the reasons I then gave, I refused to set aside the subpoena but reserved for further consideration the question of inspection of the documents when a call on the subpoena was made. I then indicated once discovery and exchange of evidence between the parties to the principal proceedings was concluded, the call upon the subpoena may, in whole or in part, become unnecessary but, in any event, I ruled that it was appropriate to defer the call at that stage. The principal proceedings have now progressed to the point where discovery has taken place and the parties have exchanged affidavit evidence on the issue of liability. There was, on the previous occasion, evidence before me indicating that the material sought on the subpoena was confidential and I think I indicated that I would adopt a procedure followed in such circumstances as in Mobil Oil Australia Limited v Guina Developments (1995) 33 IPR 82, Telstra Corp v Australis Media Holdings, Supreme Court of New South Wales, McLelland CJ in Eq., 6 December 1996 and Hadid v Lenfest Communications Inc, Hill J, 4 November 1996, unreported. The call on the subpoena has been renewed this morning and it appears that the present parties are very much in contention as to the appropriate procedure to be followed at this stage. In the circumstances, I have suggested to the parties and, in the absence of agreement, proposed to direct that the appropriate procedure is that the documents should be produced to the Court, but that inspection be confined to Senior Counsel briefed on behalf of the applicant. I have been informed by the applicant's solicitors that Mr Finch SC has been retained on their behalf and I propose to permit Mr Finch to inspect the documents, but subject to his filing a written undertaking to the Court not to disclose any of the contents of the documents to any person except with the leave of the Court. I have in mind in giving that direction that the question of whether that leave ought to be granted is essentially the question for determination before me today, that is to say, whether there is a legitimate forensic purpose in permitting anybody on the applicant's side of the record, beyond Mr Finch, to inspect the documents. Hopefully, allowing Mr Finch to carry out a personal inspection of the documents would at least progress the resolution of this collateral proceeding and should refine the issues, at least in that connection, in the event that I need to make a ruling on the question myself. ORDERS 1. Direct that the documents be produced to the Court by Village Roadshow but that inspection be restricted to Mr Finch SC on behalf of the applicant upon the filing and serving of a written undertaking by Mr Finch not to disclose their contents to any other person, except with the leave of the Court. 2. Direct that the documents produced by Village Roadshow are to be placed in an envelope marked "confidential", not to be opened except: (a) by Mr Finch SC upon Mr Finch's written undertaking to the Court that he will not disclose the contents to any person except with the leave of the Court having been filed and served; or (b) by leave of the Court. 3. Direct that the envelope be returned to the custody of the solicitors for Village Road Show and that they may accordingly use the documents as they have indicated. I will reserve the costs of today's proceedings and I have previously made other orders which bring the matter back on 9 September 1998. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont Associate: Dated: 6 July 1998 Solicitor for the Applicant: Cashman & Partners Counsel for Village Roadshow Limited: Mr K J S Drummond Solicitor for Village Roadshow Limited: Herbert Geer Rundle Date of Hearing: 6 July 1998 Date of Judgment: 6 July 1998