Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2001] FCA 153

FEDERAL COURT OF AUSTRALIA

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2001] FCA 153

TRUTH ABOUT MOTORWAYS PTY LIMITED v MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED NG 833 OF 1997 HELY J 5 MARCH 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 833 OF 1997

BETWEEN: TRUTH ABOUT MOTORWAYS PTY LIMITED

APPLICANT

AND: MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 5 MARCH 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Notice to Produce issued by the applicant on 5 November 2000 be set aside. 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 LIMITED

APPLICANT

AND: MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED

RESPONDENT

JUDGE: HELY J

DATE: 5 MARCH 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 These proceedings were removed into the High Court on 20 November 1998 at the instigation of the respondent. The question for determination by the High Court was whether s 80 and s 163A of the Trade Practices Act 1974 (Cth) ("the Act") are invalid insofar as they purport to confer standing on the applicant to bring the present proceedings. On 9 March 2000 the Court answered that question adversely to the respondent. 2 On 16 August 2000 I ordered that these proceedings be stayed unless, by 4 November 2000, the applicant provided security for the respondent's costs of the proceedings in the sum of $223,193.00. Security was not provided within the time fixed by that order, or at all. By Notice of Motion filed on 16 November 2000, the respondent sought an order that the applicant's claim in the proceedings be dismissed. That motion was fixed for hearing on 19 February 2001. 3 An article appeared in the Australian Financial Review on 11 August 2000 entitled "Costs order could stifle motorway case". The author of the article was Mr Harris. The article includes the following: "And according to Macquarie's spokesperson, the resulting unanimous judgement (sic) against Macquarie was no surprise because its lawyers 'advised it was unlikely to win'." 4 An affidavit filed by Mr Harris indicates that the spokesperson for the respondent referred to in the article is Mr Dennis Eagar, and no point was taken by the respondent that Mr Eagar was not authorised to speak on its behalf. 5 The applicant issued a Notice to Produce requiring the respondent to produce: "All documents including but not limited to: (a) letters (b) memoranda (c) opinions Containing advice from the Respondent's legal representatives regarding the Respondent's prospects of success or likelihood of winning the High Court Constitutional challenge delivered in this matter on 9 March 2000." By Motion filed on 12 January 2001 the respondent sought an order that the Notice to Produce be set aside. That order was sought on the grounds that the documents could have no conceivable relevance to any issue before the Court and on the further ground that any such documents would be the subject of client legal privilege. It would be an abuse of process to require production of documents which can have no conceivable relevance to any issue before the Court, and a notice issued for the production of such documents is liable to be set aside. 6 The Notice to Produce is sufficiently broad as to encompass advice given at any time prior to the decision of the High Court on 9 March 2000, including advice given prior to the application for removal of the proceedings into the High Court; and advice given at some later point in time, including advice given after argument in the High Court. 7 The applicant seeks to sustain the Notice to Produce on the basis that it is properly issued in connection with the principal proceedings, and alternatively on the basis that it is properly issued in connection with the motion for judgment in default of provision of security. 8 As to the first, the applicant says that lapse of time may be relevant to the discretion to grant or refuse the relief sought. The applicant therefore wants to show that the respondent unjustifiably caused the delay which occurred between the removal of the proceedings into the High Court, and 9 March 2000. It is said that the advice, the production of which is sought, may assist the applicant in that regard. The proceedings were removed into the High Court by order of that Court. In my view, any advice given to the respondent by its lawyers as to the prospects of success on the constitutional challenge which led to the removal cannot conceivably go to the strength of the applicant's case in the principal proceedings or its entitlement to the relief which it seeks in those proceedings. That is all the more so if the advice was given after the proceedings were removed into the High Court. 9 In any event, it is an abuse of process to issue a Notice to Produce in connection with the principal proceedings, when those proceedings have been stayed by force of the order which I made on 16 August 2000. The stay prevents the applicant from taking any further step in those proceedings, a position which it appears to have acknowledged in its letter of 12 December 2000, inasmuch as it asserts that the Notice to Produce was issued for the purposes of the motion for judgment and "not as any part of the substitutive (sic) proceedings". Further, during the course of argument, counsel for the respondent made a unilateral concession that at a hearing of this matter the respondent would not rely on delay between the filing of the application for removal to the High Court, and the delivery of judgment by the High Court in support of its claim that relief sought by the applicant ought not to be granted. For these reasons, the first basis on which the applicant seeks to sustain the Notice to Produce fails. 10 The second basis on which the Notice to Produce is sought to be sustained is that the advice, the production of which is sought, is germane to the motion for dismissal of the proceedings. Mr Francey stated that prior to the removal of the proceedings into the High Court Mr Van Ummersen was prepared to "look at" the possibility of his providing his house in Junction Lane, Woolloomooloo as security for the costs of the proceedings, and that when he returns to Sydney from overseas in mid-April 2001 (having left Australia on 8 June 1998) he would be prepared to consider providing his house as security, subject to his consideration of "the implications of the delay occurred by the respondent's High Court challenge and any implications this may have on the likely result of the case, and what effect this will have on costs orders made". Mr Francey's argument as I understood it is that the advice which is the subject of the Notice to Produce is required in order to provide advice to Mr Van Ummersen as to the risk of an adverse costs order being made. 11 The issue on the hearing of the Notice of Motion is whether the proceedings should be dismissed by reason of the applicant's failure to provide security in terms of the Court's order. Legal advice given to the respondent as to the prospects of its success on the constitutional challenge that led to the removal of the proceedings into the High Court has nothing to do with that issue. 12 Whether the matters relied upon in Mr Van Ummersen's affidavit of 29 November 2000 provide a reason for refusing the respondent's motion for the dismissal of the proceedings is a matter which remains to be debated, but, in my view, the matters referred to in that affidavit do not provide an answer to the respondent's contention that the Notice to Produce calls for documents which have no conceivable relevance to the motion for dismissal. 13 Accordingly, it is not necessary for me to consider issues of client legal privilege, because I would set aside the Notice to Produce on the grounds that it constitutes an abuse of process without the need to consider the privilege question. However, as those questions were argued, I should say something briefly about them. The matter was argued on the basis that Mr Eagar was the authorised spokesperson of the respondent. It was also argued on the basis that the quotation attributed to the spokesperson that the respondent's lawyers "advised it was unlikely to win" is an accurate version of what was said, rather than the slightly different version given in Mr Eagar's affidavit. Notwithstanding the terms of par 3 of Mr Harris' affidavit of 18 January 2001, it is unclear as to whether the advice to which Mr Eagar was referring was advice given prior to the removal application, or advice given after the hearing of that application, or both. The statement relied upon by the applicant falls short of clear and unequivocal conduct by which the respondent waived its right to claim privilege in respect of any and all of its legal advice in relation to the High Court proceedings. If a Notice to Produce had been given to the respondent requiring the production of the "advice" or any note thereof on the basis of which, or by reference to which, Mr Eagar made the statement attributed to him in The Australian of 11 August 2000, I would have concluded that the respondent had waived any client legal privilege in relation to that advice. The statement in question goes beyond a statement of Mr Eagar's understanding of the likely outcome of the High Court challenge. But it does not follow from that conclusion that the respondent has waived client legal privilege in relation to advices falling within the scope of the Notice to Produce in its present form. 14 I order that the Notice to Produce issued by the applicant on 5 November 2000 be set aside. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.