Dunstan v Orr [2007] FCA 652

FEDERAL COURT OF AUSTRALIA

Dunstan v Orr [2007] FCA 652 COLIN GEORGE DUNSTAN v ROBYN ORR, JOHN HIGHAM AND JOHN GROWDER ACD 77 OF 1997

MANSFIELD J

4 MAY 2007

CANBERRA (BY VIDEO) IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 77 OF 1997

BETWEEN: COLIN GEORGE DUNSTAN

Applicant

AND: ROBYN ORR

First Respondent

JOHN HIGHAM

Second Respondent

JOHN GROWDER

Third Respondent

JUDGE: MANSFIELD J DATE OF ORDER: 4 MAY 2007

WHERE MADE: CANBERRA (BY VIDEO)

THE COURT ORDERS THAT:

1. Application for leave to amend application refused.

2. Application for leave to issue subpoenas to Richard Highfield and Geoffrey Seymour refused.

3. Application to inspect privileged documents of the respondents refused.

4. Leave to applicant to issue subpoenas to Barbara Benson and Erin Holland returnable at 10:15 am on 2 July 2007 for the purpose of giving oral evidence at the hearing.

5. Any proposed further evidence which applicant may seek leave to adduce at trial be filed and served by 31 May 2007.

6. Costs of today reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 77 OF 1997

BETWEEN: COLIN GEORGE DUNSTAN

Applicant

AND: ROBYN ORR

First Respondent

JOHN HIGHAM

Second Respondent

JOHN GROWDER

Third Respondent

JUDGE: MANSFIELD J

DATE: 4 MAY 2007

PLACE: CANBERRA (BY VIDEO)

REASONS FOR RULINGS 1 In this matter, which is now listed for hearing on 2 July 2007, there are a number of interlocutory applications before me today. 2 The first concerns the proposed amendment of the application by the addition of causes of action and by the addition of respondents. I do not propose to grant leave to amend the application or to add causes of action or to add respondents. In my view, insufficient ground has been shown to warrant the proposed amendment in any event. An illustration is provided by the application to join Erin Holland in respect of some putative decision that she made. But I was told this morning by Mr Dunstan that she never made a decision. That is simply an illustration of the uncertainty with which I think the proposed amendment must struggle. The form of the proposed amendment is quite unsatisfactory. In any event, to allow the proposed amendment would involve an adjournment of the hearing. Given the lengthy history of this matter, which I will not go into, it would be inappropriate to allow an amendment which would put the hearing at risk. The joinder of new parties would necessarily do so. 3 In addition, the application to join the Commonwealth so that a breach of contract claim could be pursued is quite a different claim from the Administrative Decisions (Judicial Review) Act 1976 (Cth) (the AD(JR) Act) claim now before the Court. Mr Dunstan, if he is so advised, and as the respondents have indicated in their written submission, may bring such a claim independently of this action subject to the usual risks of doing so, and bearing in mind the lapse of time since that cause of action apparently accrued (if it exists). 4 The second issue concerns the request of Mr Dunstan to have access to privileged documents. The privileged documents are described in Schedules 2 and 3 of the list of documents filed by the respondents on 27 March 2007. There is nothing in the material before me to indicate that the description of those documents is inaccurate. On their face, they are clearly privileged. The decision of O'Reilly v Commissioner of State Bank of Victoria, (1982) 44 ALR 27, does not provide any foundation to direct the discovery of privileged documents. The discussion in that case to which my attention was drawn by Mr Dunstan concerned a discussion as to the extent to which legal professional privilege may have been abrogated by the operation of s 264 of the Income Tax Assessment Act 1936 (Cth), and a discussion as to the extent to which legal professional privilege applied in respect of non-curial proceedings. Neither of those things is applicable here. 5 Mr Dunstan also seeks leave to adduce further evidence. He says that there is material which has become available as a result of further documents produced to him by the respondents. I am not proposing to rule on that application at the minute, and will do so at the trial. I direct that any proposed further evidence which Mr Dunstan may seek leave to adduce at the trial be filed and served by him by 31 May 2007. 6 There is an issue about a particular privileged document (or a document said to be privileged), namely a memorandum from Mr Seymour of 30 July 1997, which the respondents say was accidentally given to Mr Dunstan. I do not propose to determine whether, via the production of that document to Mr Dunstan at this point, there has been a waiver of the privilege. There are principles to be applied in that assessment. If Mr Dunstan seeks to adduce that document in evidence I will address the issue of waiver, and hence of its admissibility at the hearing.