FEDERAL COURT OF AUSTRALIA O'Flaherty v City of Sydney Council [2012] FCA 1293 Citation: O'Flaherty v City of Sydney Council [2012] FCA 1293 Parties: EAMONN O'FLAHERTY v CITY OF SYDNEY COUNCIL and STATE OF NEW SOUTH WALES File number: NSD 162 of 2012 Judge: NICHOLAS J Date of judgment: 25 October 2012 Date of hearing: 25 October 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 7 Counsel for the Applicant: Ms N Sharp with Mr D Joyce Solicitor for the Applicant: Marsdens Law Group Counsel for the First Respondent: Mr H El-Hage Solicitor for the First Respondent: Ms K Ridling of Council of the City of Sydney Counsel for the Second Respondent: Ms K Richardson Solicitor for the Second Respondent: NSW Crown Solicitor's Office IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 162 of 2012 BETWEEN: EAMONN O'FLAHERTY Applicant AND: CITY OF SYDNEY COUNCIL First Respondent STATE OF NEW SOUTH WALES Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 25 October 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. By 8 November 2012, the first respondent provide discovery of: (a) any minutes of resolutions of the City of Sydney Council (Council), evidencing what consideration, if any, was given by the Council to issues of public harm, or harm to public health and safety, and risks to public amenity from the fact of persons staying overnight at Martin Place in the period 15 October 2011 to present; and (b) other categories of documents which the first respondent previously indicated it would discover. 2. The applicant is given leave to issue the subpoena to NSW Police, in the form initialled by Nicholas J, subject to the following amendments: (a) Paragraph 2 the words "relating to or" are deleted to read "[a]ll records evidencing the"; and (b) Sub-paragraph 2(c) is deleted. 3. The time within which the applicant is to file and serve its evidence in reply is extended to 29 October 2012. 4. Costs of the interlocutory application filed 18 October 2012 and the directions held on 25 October 2012 are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 162 of 2012 BETWEEN: EAMONN O'FLAHERTY Applicant AND: CITY OF SYDNEY COUNCIL First Respondent STATE OF NEW SOUTH WALES Second Respondent JUDGE: NICHOLAS J DATE: 25 october 2012 PLACE: SYDNEY REASONS FOR JUDGMENT (Revised from transcript) 1 Before me is an interlocutory application brought by the applicant for discovery by the first respondent. The applicant seeks discovery of various categories of documents. 2 The interlocutory application is made in a proceeding brought against the City of Sydney Council (Council) and the second respondent, State of New South Wales, seeking (inter alia): (a) A declaration that the issue or publication of the relevant notices (being the notices referred to in the charges which relate to the Applicants and also in the accompanying fact sheets prepared by police) in Martin Place, Sydney, was ultra vires the powers conferred on an authorised officer under the Local Government Act 1993 (NSW), insofar as they apply to the Applicants as they impermissibly burden the implied freedom of political communication and association under the Commonwealth Constitution. (b) A declaration that section 632(1) of the Local Government Act 1993 (NSW) is invalid insofar as it impermissibly burdens the implied freedoms of political communication and association in the Constitution. 3 The application for discovery is made late in the sense that the hearing date is quite close. Some of the categories of documents sought are extremely broad. In fact the categories of documents sought go far beyond what a party could reasonably be expected to provide in circumstances where the relevance of many of the documents sought is not apparent from the pleadings, and where the hearing date is less than one month away. The evidence relied upon by Council on the present application shows that very substantial work would be required on the part of Council and its legal representatives in searching for, locating and reviewing all the documents sought by the applicant. Be that as it may, Council has agreed to provide discovery of some of the categories sought by the applicant. I will briefly deal with the categories that are still in dispute. 4 As to category 2, I have considered the submissions made by Counsel for the applicant during the course of argument this morning as to the relevance of the documents sought in light of the applicant's Amended Statement of Claim. As presented to me this morning, the documents in category 2 were said to be relevant to an issue in the case in that they would, or may, show the true intentions of Council, Council officers, and members of the New South Wales Police Force in taking action against the applicant and other participants in the "Occupy Sydney" protest at Martin Place on or about 23 October 2011. The difficulty I have with the applicant's argument is that there is nothing said anywhere in the Amended Statement of Claim concerning any such intention. Hence, the documents sought do not appear to me to be relevant to any issue arising on the pleadings. 5 So far as categories 5 and 6 are concerned, even if these documents (or at least some of them) are relevant, I think these categories are far too broad. I am not satisfied that discovery of these categories is necessary for ensuring the just disposition of the proceeding. 6 I therefore decline to make any orders requiring Council to discover documents within categories 2, 5 or 6. 7 I would add, however, that if the applicant was to specify a category or categories of documents with due regard to the issues in the proceeding as evident from a reading of the pleadings, and which did not place an undue burden on Council in terms of searching for and producing such documents, then the applicant may issue a notice to produce for the purpose of obtaining at least some of the additional documentary material it seeks. In saying this I am not to be taken as indicating in advance of any argument concerning such notice to produce whether it will be allowed to stand or whether it will be set aside on the application of Council. All will depend upon the relevance of the documents sought in the notice to produce and the extent of the burden imposed upon by it upon Council. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 20 November 2012