Rich v Harrington [2007] FCA 1979

FEDERAL COURT OF AUSTRALIA

Rich v Harrington [2007] FCA 1979

CHRISTINA MADELINE RICH v ANTHONY HARRINGTON & ORS NSD 1865 OF 2005

BRANSON J

13 DECEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1865 OF 2005

BETWEEN: CHRISTINA MADELINE RICH

Applicant

AND: ANTHONY HARRINGTON & ORS

Respondents

JUDGE: BRANSON J DATE OF ORDER: 13 DECEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Subject to any later order of the Court, no person who is not a party to this proceeding or a legal representative of a party to this proceeding, may inspect any of the documents behind Tab 2 of the exhibit BGM-1 to the affidavit of Bronwyn Gaye Maynard sworn on 12 October 2007 ("the Tab 2 material"). 2. Leave is granted generally for any person to inspect the documents agreed to be those portions of the Tab 2 material relied upon on the hearing of the motion on 1 November 2007. 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 NSD 1865 OF 2005

BETWEEN: CHRISTINA MADELINE RICH

Applicant

AND: ANTHONY HARRINGTON & ORS

Respondents

JUDGE: BRANSON J

DATE: 13 DECEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 These reasons for judgment concern the extent, if any, to which the public (including the media) should have leave to inspect certain material received in evidence on an interlocutory application. 2 On 1 November 2007 Ms Rich moved the Court for orders requiring the respondents for whom Mallesons Stephen Jaques act (for convenience hereafter referred to as "the respondents") to produce for inspection certain classes of documents over which they claimed client legal privilege. During the hearing of the motion I received into evidence an exhibit to an affidavit that was read as part of Ms Rich's case. That exhibit, which was marked "BGM-1", was referred to in the affidavit of Bronwyn Gaye Maynard sworn on 12 October 2007. Within BGM-1, behind Tab 2, were handwritten memoranda apparently created by members of Pricewaterhouse Coopers ("PwC"), file notes concerning Ms Rich apparently created by members of "PwC" and email exchanges apparently between members of PwC ("the Tab 2 material"). 3 Senior counsel for the respondents indicated that his clients opposed the Tab 2 material being inspected by any person who was not a party to the proceeding (see O 46 r 6 of the Federal Court Rules). I indicated that I would not allow access to the Tab 2 material pending the early determination of an application by the respondents for an order that access to the material be restricted to the parties and their respective legal representatives. 4 Applications were received on 1 November 2007 from journalists for leave to inspect and copy the Tab 2 material. Consideration of those applications was delayed pending the determination of the application foreshadowed by the respondents. 5 The Court sat the following day (ie 2 November 2007) to hear a motion, of which the respondents gave short written notice, for an order that access to the Tab 2 material be restricted to the parties and their legal representatives. In argument on the motion the respondents indicated that they did not oppose public inspection of a modified version of the Tab 2 material in which all material irrelevant to the motion concerning client legal privilege was masked. 6 Ms Rich, by her senior counsel, was heard on the application as was counsel for Nationwide News Pty Limited and John Fairfax Pty Limited, who were jointly granted leave to intervene. Ultimately, Ms Rich adopted the position that either all or none of the Tab 2 material should be available for public inspection. Nationwide News and John Fairfax contended that all of the Tab 2 material should be available for public inspection. 7 At the close of argument on 2 November 2007 I ruled that those parts of the Tab 2 material that were relied on for the purpose of the motion concerning client legal privilege should be available for inspection by any person but that material not relied upon, which appeared in the Tab 2 material, notwithstanding its irrelevance to the motion simply because it had not been considered necessary or appropriate to blank it out, would not be available for public inspection. I directed the legal representative of the parties and Nationwide News and John Fairfax to confer for the purpose of identifying those parts of the Tab 2 materials upon which either party had placed reliance. 8 Although I gave short reasons for my ruling at that time I indicated that I would publish expanded reasons at a later date. These are those expanded reasons.