Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [1998] FCA 1130

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - application by respondent to adjourn part heard application for security for costs pending the hearing in the High Court of Australia of its application challenging the jurisdiction of the Federal Court to hear the main proceeding - application by applicant to vary confidentiality order - whether to allow applications. TRUTH ABOUT MOTORWAYS PTY LTD v MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LTD NG 833 of 1997 FOSTER J 19 august 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 833 of 1997

BETWEEN: truth about motorways pty ltd

Applicant

AND: macquarie infrastructure investment management ltd

Respondent

JUDGE: FOSTER J

DATE OF ORDER: 19 august 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The part heard application for security for costs be adjourned to a date to be fixed. 2. All other applications before the Court in these proceedings be adjourned to a date to be fixed in October for a directions hearing. 3. The costs of today's hearing be reserved, to be heard with other previously reserved issues of 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

Applicant

AND: macquarie infrastructure investment management ltd

Respondent

JUDGE: FOSTER J

DATE: 19 august 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (Extempore) This case is before me this morning in what is best described as another directions hearing, one of a large number that have already occurred. The case has had a history of applications of an interlocutory nature, some of which I have determined from time to time, and others of which have been made and which currently await hearing. The only application in which I am part heard is an application for security for costs which I commenced hearing on 2 April 1998 and the hearing of which I resumed on 8 April 1998. On 8 April, the motion did not progress very far as an application was made by the respondent to that motion that I take certain further interlocutory steps in respect of it. After hearing argument, which took up much of the day, I refused to take those steps. The security for costs application was necessarily adjourned. The respondent to that application later sought the obtaining of further evidence in relation to it by the issue of subpoenas. I gave judgment yesterday in relation to an application that those subpoenas should be struck out or stood over. In that judgment, I ordered that the subpoenas be stood over generally. The basis for that order is to be found, of course, in the judgment; however, in general terms, I expressed the view that the security for costs application should be disposed of, that it had been, one way or another, considerably delayed, and that it was appropriate that it be dealt with on the evidence as it stood. An application is made today by the applicant in the main proceeding in relation to the revocation of confidentiality orders that were made by consent on 20 March 1998. Those orders would currently prevent the submission of certain documents, which have previously been obtained as a result of their being produced under a notice to produce, to an expert in traffic matters who resides in England. It has been quite candidly conceded that the desire to submit that material to the English expert relates to a wish to obtain a further expert's report to be put before the Court in relation to the security for costs application. The material in question would relate to the alleged strength of the applicant's case in the main proceeding. That, of course, was the basis upon which the further evidence was sought on the subpoenas which I stood over generally. Accordingly it is quite clear that the evidence sought to be obtained by the partial revocation of the confidentiality order and the submission of this material to the English expert, would be evidence going to the same issue as the material sought to be obtained on subpoena. In the context that the security for costs application was to be heard as promptly as possible, especially having regard to the delay in the hearing of it that already has occurred, my reaction to the procedure envisaged by the applicant, namely the relaxation of the confidentiality order in part so that this evidence could be obtained, would be adverse. It would only delay the hearing of the security for costs motion and would run counter to the basic views that I expressed in the judgment that I gave yesterday. This situation, however, has been subject to some change this morning. The Court has previously been advised that the respondent to this application is seeking orders in the High Court of Australia which, if granted, would have the effect of removing the jurisdiction of this Court further to hear the matter and indeed would probably go to the jurisdiction of this Court to have embarked upon the hearing of it in the first place. I have been advised today that according to a time-table being established in the High Court, it is expected that the High Court application will be heard in the second week of October. So far as the further continuation of these proceedings is concerned, not a great deal could be achieved before that date in any event. As I have indicated on more than one occasion, my pending retirement from the Court has meant that I have to be concerned as to the work that I should undertake, it being, of course, essential that the work be completed before the date of retirement. It is for that reason that I have not infrequently said that I propose to finish matters in which I was part heard in these proceedings with a view to transferring the main proceeding and any outstanding interlocutory applications to another Judge. It has not been possible at this stage for that transfer to take place but that is a situation that may soon change and hopefully will have changed by October. In the circumstances that the applicant for security for costs now makes an application that I not continue with that hearing at this stage, but that I adjourn it until after more concrete information about the fate of the High Court proceedings becomes available in October, I must revisit my previously expressed view that the security for costs application should be heard promptly. Clearly, the applicant no longer seeks that this occur. With respect to the applicant in the main proceeding (that is, the respondent in the security application), the application for security has been opposed. It is indeed the subject of continued strenuous opposition. In these circumstances I cannot see that any prejudice occurs to the applicant in the main proceeding if the security for costs application is not dealt with by me with the promptness that I had previously envisaged. As a general proposition, I think it to be the case that proceedings in this Court or any Court should generally proceed even if they are under the threat of being brought to an end by the order of a superior Court. Such proceeding simply continues until that threat either eventuates or is dispelled. There must, of course, be circumstances where that policy of the law, if I could so describe it, is not appropriate. At the conclusion of the hearing of a security for costs application in this matter and the giving of judgment in it, there would, of course, depending upon the result of that application, be questions a) as to whether the matter would continue and b) what interlocutory steps should then be taken. If the matter were to continue, the interlocutory steps that would then be undertaken would be the ordinary interlocutory steps of discovery and procedures that follow upon discovery such as notices to admit facts and the like. It has been made plain to me during the course of these proceedings that the processes of discovery may be lengthy, involved and costly. As has been said previously in judgments in this Court, discovery is an invasive and intrusive process especially if third party discovery is involved. That is necessarily a consideration. While it is not by any means a major consideration in all cases, it will none the less be a relevant one. I ask myself whether, in the circumstances that my own contact with this case is to be limited, it is of real importance that interlocutory processes should continue, pending the determination of the High Court proceedings. As I have said there is probably little that can be achieved in these proceedings before October, apart from the determination of the security for costs motion. True it is that discovery processes might be set in train but in light of the application in the High Court that the whole of these proceedings be stayed, I must consider whether it is proper that I should allow those processes to go forward in the period of time that exists between today's date and the date when the High Court deals with the matter. I have not found this question easy to decide. That is no doubt apparent from the thoughts that I have been expressing as I have proceeded in these reasons. I think, on balance, the appropriate order that I should make is one which will give effect to the respondent's application made this morning; that is that I now adjourn, to a date to be fixed, the part heard application for security for costs and that I adjourn all other applications currently before the Court in these proceedings until a date in October which can be selected in consultation with the parties. On that day the matter should then come before the Court again for further directions. I think it is appropriate that I merely reserve the costs of today so that all questions of reserved costs can be heard together. I would expect to be available to determine those questions in October, at a time to be appointed. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.