FEDERAL COURT OF AUSTRALIA Longa v Tim Haffner & Associates Pty Limited [2011] FCA 1060 Citation: Longa v Tim Haffner & Associates Pty Limited [2011] FCA 1060 Parties: GABRIEL IGNACIO LONGA v TIM HAFFNER & ASSOCIATES PTY LIMITED ACN 075 423 488, TIMOTHY JAMES HAFFNER and DIANNE HELENE HAFFNER File number(s): NSD 1179 of 2011 Judge: YATES J Date of judgment: 12 September 2011 Date of hearing: 12 September 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 20 Counsel for the Applicant: Mr M Heath Solicitor for the Applicant: MWA Lawyers Counsel for the Respondents: Mr M Smith Solicitor for the Respondents: Paton Hooke Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1179 of 2011 BETWEEN: GABRIEL IGNACIO LONGA Applicant AND: TIM HAFFNER & ASSOCIATES PTY LIMITED ACN 075 423 488 First Respondent TIMOTHY JAMES HAFFNER Second Respondent DIANNE HELENE HAFFNER Third Respondent JUDGE: YATES J DATE OF ORDER: 12 SEPTEMBER 2011 WHERE MADE: SYDNEY THE COURT: 1. ORDERS that subject to the notation in 2 below, the First, Second and Third Respondents ("the Respondents") give discovery to the Applicant of the Applicant's categories of documents for discovery annexed to the interlocutory application filed 1 September 2011 and marked "A", save for category 16, within 14 days; 2. NOTES that in respect of the Applicant's discovery categories 15(iii), (vi), (x) and (xi), the Respondents need only provide discovery of those sub-categories within 14 days of the Applicant's solicitor informing the Respondents of which documents contemplated by those sub-categories are required by the Applicant's expert; 3. NOTES that documents discovered by the Respondents in this proceeding also be made available to the Applicant in proceeding No. NSD 1178 of 2011 (James Tyrpenou v Tim Haffner & Associates Pty Ltd and others), which proceeding is travelling together with this proceeding; 4. ORDERS that the costs of and incidental to the hearing of the interlocutory application filed 1 September 2011 be costs in the cause. Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1179 of 2011 BETWEEN: GABRIEL IGNACIO LONGA Applicant AND: TIM HAFFNER & ASSOCIATES PTY LIMITED ACN 075 423 488 First Respondent TIMOTHY JAMES HAFFNER Second Respondent DIANNE HELENE HAFFNER Third Respondent JUDGE: YATES J DATE: 12 SEPTEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 By interlocutory application filed on 1 September 2011, the applicant seeks discovery against the first, second and third respondents by reference to categories of documents identified in an annexure to the interlocutory application. 2 The proceeding relates to events in mid to late 2006 concerning a tender issued by the New South Wales Department of Commerce for certain valuation services to be carried out by it. In about January 2007 the first respondent was awarded the tender. 3 The second respondent is a registered real estate valuer. The second respondent provided valuation services on behalf of the first respondent. At relevant times, the second respondent and his wife, the third respondent, were the directors and shareholders of the first respondent. 4 The applicant says that, during the course of the tender process, he was recruited by the second respondent to work for the first respondent in respect of the tender on the basis of certain representations and inducements. These included the following: first, he would be initially employed by the first respondent and would receive a certain salary plus superannuation at the statutory rate with a fully maintained motor vehicle and mobile phone; secondly, he and other parties approached to join the first respondent would have an equal equity in the first respondent on and from 1 March 2008; thirdly, the profits of the first respondent's business would be split equally between each of the persons to whom I have referred, including the applicant. 5 The applicant says that he accepted that offer, but as events happened, the first respondent did not grant him the equity in it or pay him the profit share to which he claims to have been entitled. 6 The applicant pleads various causes of action against the respondents, including breaches of contract, contraventions of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW), and inducement of breach of contract. The applicant claims damage at common law and under statute. 7 On 24 June 2011 the respondents gave discovery in accordance with agreed categories of documents. 8 The present application concerns additional discovery sought by the applicant, once again by reference to categories. 9 As events have turned out, the only matters now in dispute are, first, whether discovery should be given in respect of a broad category of documents described as "all documents that support the applicant's case or that adversely affect any respondent's case" (category 16) and secondly, whether confidentiality orders should be made with respect to certain financial records that the respondents have agreed to discover (category 15). 10 As to the first matter, I am not disposed to order that discovery be given by reference to the broad category that is sought. In light of the discovery already given and proposed to be given, all of which has been or is to be by reference to categories, I do not think that the applicant should be granted what is, in effect, an order for standard discovery. 11 The applicant has impressed on me the desirability, if not need, for discovery in accordance with category 16 in light of a mediation that is to take place on or before 31 October 2011. I am not persuaded that that event justifies the giving of discovery by reference to this category. The case as pleaded is a relatively straightforward one, and, although liability is denied, the events and circumstances giving rise to the applicant's claim would be well known by the applicant. This is not to say that appropriately targeted discovery might not be appropriate if sought. That being said, however, the application currently before me is only for the very broad category that the applicant has sought. 12 I do not propose to make an order that discovery be given by reference to that category at the present time. I am not satisfied that the giving of discovery by reference to that category will achieve the objective of facilitating the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. There is, for example, evidence before me that to give the additional discovery sought by reference to category 16 would, on present indications, take another four weeks. 13 As to the second matter, the respondents seek the imposition of a confidentiality order that would see access to the relevant documents restricted to the legal advisers for the parties and experts retained to give what is anticipated to be valuation evidence. 14 The evidence before me on that matter is contained in an affidavit of James David Paton affirmed on 9 September 2011. That evidence speaks only in the vaguest of terms about the relevant financial records being "commercial-in-confidence". 15 The respondents point out that the applicant is in direct competition with the first respondent, now being located in the same geographic area and servicing the same local government authorities. The evidence asserts that production of the financial records to the applicant would reveal to the applicant the respondents' source of income, who to approach to obtain that work, and what the respondents charge or quote. 16 It is to be borne in mind that, in fact, the applicant worked for the first respondent at a high professional and technical level for approximately three years. There is nothing in the evidence before me to suggest that the applicant would not have quite specific knowledge about the first respondent's sources of income, who to approach for work and what the first respondent charges or quotes for that work. 17 The respondents also submit that the documents would reveal to the applicant who the respondents' suppliers are and what the first respondent is being charged by such suppliers. The evidence does not inform me, however, about the nature of "the suppliers" in question. I am not satisfied that that evidence conveys anything that is meaningful that would warrant the imposition by itself of any specific confidentiality regime in respect of documents to be discovered by the respondents. 18 I therefore decline, on the basis of the evidence before me, to impose any specific confidentiality order in respect of the documents or information contained in them that will be produced pursuant to category 15. 19 This proceeding is travelling with another proceeding, being NSD 1178 of 2011. It is proposed that the discovery to be given by the respondents in the present proceeding also be provided in proceeding NSD 1178 of 2011. No specific objection has been raised by the respondents to that course. I am satisfied that it is appropriate that the same discovery be given in NSD 1178 of 2011. 20 In respect of the present application there has been a measure of success and failure by each party. The appropriate order, in my view, is that the costs of and in relation to the hearing of the interlocutory application be costs in the cause. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 13 September 2011