Buzzle Operations Pty Ltd (in liquidation) v Bolt [2008] FCA 1302

FEDERAL COURT OF AUSTRALIA

Buzzle Operations Pty Ltd (in liquidation) v Bolt [2008] FCA 1302

BUZZLE OPERATIONS PTY LTD (IN LIQUIDATION) ACN 093 603 895 v JEREMY DAVID BOLT AND THE PARTNERS OF DELOITTE TOUCHE TOHMATSU AS LISTED IN SCHEDULE A

NSD 1224 of 2006

GRAHAM J

19 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1224 of 2006

BETWEEN: BUZZLE OPERATIONS PTY LTD (IN LIQUIDATION) ACN 093 603 895

Applicant

AND: JEREMY DAVID BOLT AND THE PARTNERS OF DELOITTE TOUCHE TOHMATSU AS LISTED IN SCHEDULE A

Respondents

JUDGE: GRAHAM J

DATE OF ORDER: 19 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT:

1. Grants leave to the respondents to file in Court a Notice of Motion dated 19 August 2008. 2. Orders that the time for the respondents to file and serve their lay evidence be extended up to and including 10 November 2008. 3. Orders that the applicant pay the respondents' costs of the Motion incurred between 1 August 2008 and the date hereof. 4. Orders that the costs may be taxed and shall be payable forthwith. 5. Orders that the time fixed for filing the applicant's lay evidence in reply and list of issues for expert evidence be extended from 17 November 2008 to on or before 1 December 2008 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 1224 of 2006

BETWEEN: BUZZLE OPERATIONS PTY LTD (IN LIQUIDATION) ACN 093 603 895

Applicant

AND: JEREMY DAVID BOLT AND THE PARTNERS OF DELOITTE TOUCHE TOHMATSU AS LISTED IN SCHEDULE A

Respondents

JUDGE: GRAHAM J

DATE: 19 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The issues in this matter are presently defined by a Further Amended Application filed 10 September 2007, a Further Amended Statement of Claim filed 10 September 2007 and a Defence filed 23 November 2007. 2 On 18 July 2008, directions and orders were made to progress the matter to a hearing provisionally fixed to start on 1 June 2009 with an estimate of eight weeks. 3 On 17 July 2008, a series of orders were made by consent following the submission to my Associate of agreed Short Minutes. Notwithstanding my concern about some of the terminology that was chosen, I made orders in accordance with the draft Short Minutes on 17 July 2008. Those orders were relevantly made pursuant to an Amended Notice of Motion which had been filed by the respondents on 10 June 2008. 4 Order 2 called for the applicant to give verified discovery of certain affidavits, statements and expert reports which had been served in a case of Apple Computer Australia Pty Ltd v George Mekrizis. 5 A Third Further Supplementary List of Documents was filed on behalf of the applicant on 25 July 2008 which discovered three documents, being affidavits dated 11 December 2001, 4 April 2002 and 21 November 2002. 6 Order 3, made by consent on 17 July 2008, required inspection to be given by the applicant to the respondents of the three affidavits so discovered and another approximately 32 affidavits which had been listed in annexure B to the Amended Notice of Motion filed 10 June 2008. The consent order for inspection was limited to the discovered affidavits and the additional affidavits mentioned 'in so far as they are relevant to matters in question in the proceeding'. By consent, inspection was to be given on or before 1 August 2008. 7 Order 4 was directed at permitting the applicant to limit the scope of the inspection by objecting to the inspection of parts of the documents 'on the ground of relevance'. The regime for which limited inspection was a possibility required the applicant to file and serve, on or before 4pm on 1 August 2008, a Notice of Motion seeking orders authorising masking on the grounds of partial relevance and any supporting affidavit. 8 As it transpires, the applicant elected not to file and serve any Notice of Motion seeking orders authorising masking on the grounds of partial relevance of any parts of the documents. When inspection was ordered, by consent, no claims were made in respect of legal professional privilege and no claims were made for access to the material to be inspected to be limited in accordance with a confidentiality regime. 9 On 1 August 2008, a solicitor from the offices of Freehills, the solicitors for the respondents, apparently attended at the applicant's solicitors' offices with a view to inspecting discovered documents and the other documents, the production of which was required. It is said that there was no objection raised at that time to the particular solicitor seeing the documents. However, when she apparently asked for copies of the documents to be provided, she was informed that copies would not be made available. I am informed, and counsel for the applicant does not dispute, that an offer was made to pay for the relevant photocopying costs. 10 What then happened is that the applicant sought to have the order for inspection qualified by the introduction of a confidentiality regime. Objection was raised to the provision of copies of the documents unless and until the identity of the people to whom they would be shown was revealed. Plainly, if the applicant wished to restrict the access afforded by an order for inspection to particular persons or on a particular basis, the time for raising the question of confidentiality was before the orders were made on 17 July 2008 and to which the applicant's solicitor consented on behalf of the applicant. 11 On 15 August 2008, the parties ended up reaching an agreement which resulted in the provision of copies of the documents to the respondents and the establishment of a confidentiality regime in respect of the use of those documents. 12 On 12 August 2008, the Court was asked to list the matter today, 19 August 2008, to permit the issue in respect of inspection of documents to be resolved. The respondents were advised that it would be appropriate for some form of initiating process to be prepared which would define the relief that was sought. A draft Notice of Motion was apparently brought into existence on 12 August 2008 and made available to the solicitors for the applicant. Evidence was prepared in anticipation of a hearing of that Notice of Motion by the Court today. A copy of the Notice of Motion was made available to the Court on 18 August 2008. 13 As it transpires, because of the agreement reached on 15 August 2008, there is now no substantive issue outstanding. Copies of the documents, the subject of the order for inspection, have already been provided, as one might have expected would occur, in accordance with Order 15 rule 12 of the Federal Court Rules. 14 The parties are agreed that the time for the respondents to file and serve their lay evidence should be extended for approximately two weeks to compensate for the delay which has occurred between 1 August 2008 and 15 August 2008. 15 I have granted leave to the respondents to file in Court the Notice of Motion dated 19 August 2008 seeking the foreshadowed relief, which is now essentially unnecessary. I did so over the opposition of counsel for the applicant, who suggested that it would be inappropriate to do so just to allow the issue of costs to be ventilated. There is, of course, also the need to formally make the order extending the time for filing by the respondents of their lay evidence. 16 In my opinion, the applicant has brought upon itself the additional costs which have been incurred between 1 August 2008 and today. No good reason is afforded as to why it was appropriate for a claim for confidentiality to be raised only after the consent orders for inspection had been made and inspection was sought. In my opinion, an order for costs should be made. 17 The respondents sought an order initially on an indemnity basis and, in draft Short Minutes of Order apparently provided earlier today, on a normal basis. I am informed by counsel for the respondents that the omission of the reference to indemnity costs was an oversight and that in fact indemnity costs are sought. The draft Short Minutes of Order also seek an order that the costs be taxed and payable forthwith. 18 In my opinion, the respondents are entitled to an order for costs on the normal basis, and an order that they be taxed and payable forthwith. There has been much to-ing and fro-ing over the two week period from 1 to 15 August 2008 that was simply unnecessary and was occasioned by the failure on the part of the applicant to address the question of confidentiality before submitting to an unqualified order for the production of the documents in question. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.