'X' and ANOR v 'A' [NO 2] [1995] NSWCA 1

'X' and ANOR v 'A' [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and HANDLEY JA 18 May 1995, 18 May 1995 [1995] NSWCA 1

PRACTICE AND PROCEDURE — confidential information — application for orders disclosing communication of information whether leave should be granted to challenge refusal of such orders — held: (by maj): Leave refused — discretionary case management decision in sensitive matter. PRIVILEGE — disclosure — corporate defendant has no privilege — individual defendant waived — discretionary order leave refused.

PRACTICE AND PROCEDURE — case management of urgent proceedings — alleged possession of confidential information — interlocutory application for order that party in possession disclose identity of person or persons to whom the information has been communication or who has been given access to it — suggested objective of the application is to obtain orders to prevent further communication — primary judge (Bryson J) declines orders and lists proceedings for urgent hearing before himself — on application for leave to cross-appeal against refusal of such orders — held: (Gleeson CJ, Handley JA concurring; Kirby P dissenting): Leave should be refused as the order was made in the discretionary management of sensitive and difficult litigation, the hearing of which had been expedited and which needed to be strictly controlled. Norwich Pharmacal Co and Ors v Customs and Excise Commissioners [1974] AC 133 (HL) and Golf Lynx v Golf Scene Pty Ltd T/as Custom Golf Club Co (1984) 59 ALR 343 (SCSA) considered.

PRIVILEGE — self-incrimination — document produced by solicitors — failure to raise privilege against self-incrimination — whether Court could and should order return of documents produced by mistake — whether privilege available to corporate defendant — held: (1) Any such privilege did not belong to a corporate defendant. Environment Protection Authority y Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Trade Practices Commission y Abbco Ice Works Pty Ltd (1994) 52 FCR 96; (1994) 123 ALR 503 (FFC) applied; (2) As to any privilege of the individual party, the refusal to order return of the document was a discretionary decision with which the Court of Appeal would not interfere. Hooker Corporation Ltd v Darling Harbour Authority and Ors (1987) 9 NSWLR 538 (SC) considered.