Aboriginal Nations Pty Limited v John Fairfax Publications Pty Limited and West Australian Newspapers Limited [1998] ACTSC 201 (29 April 1998)

  
  
  
  

  
   

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

   Practice and Procedure - notice
given by plaintiff to third party for non
party production under O.34B r.2 - defendant objects under r.7 to inspection
by plaintiff
- Master over-rules defendant's objection - solicitors for
defendant inform plaintiff's solicitors of intention to appeal and apply
for
order to prevent inspection pending appeal - plaintiff's solicitors inspect
documents rendering appeal and application nugatory
- plaintiff's solicitors
to pay costs of application.

   Practice and Procedure - costs - plaintiff's solicitors to pay costs of
application rendered nugatory by their own conduct.

   Legal Practitioners - duty of solicitors to act responsibly - wide powers
of solicitors under new rules for non-party production.

  

  

   CANBERRA, 29 April 1998 (hearing and decision)

   #DATE 29:4:1998

   Appearances

   Counsel for the first Defendant/Applicant: Mr. M.J. Will

   Instructing Solicitors: Freehill Hollingdale &
Page

   Counsel for the Plaintiff/Respondent: Mr. T. Williams

   Instructing Solicitors: Snedden Hall & Gallop

  

  

  
THE COURT ORDERS THAT:

   1. The plaintiff's solicitors pay the costs of this application.

  

  

   MILES CJ

   1. The system
of non party production of documents was introduced with the
agreement, if not the insistence, of the Law Society which represents
the
practitioners of this Territory. As the explanatory note accompanying the
introduction of the rule explains, the system is subject
to review by the
Court. The system places great power in the hands of legal practitioners which
may not be matched elsewhere in Australia
or anywhere in the world. The system
will work properly only if legal practitioners use it responsibly. In the
present case, although
I may have had doubts about the first defendant's role
in seeking to prevent the plaintiff getting inspection of documents produced
by third parties, the fact is that the plaintiff through its solicitors knew
on Friday that the first defendant intended to appeal
against the order of the
Master dismissing the first defendant's application to prevent inspection, and
it knew this when its solicitors
inspected some of the documents on Monday. I
am not sure of the position as it would have been when inspection of some of
the documents
took place on Friday.

   2. But at any rate, in relation to inspection on Monday, the plaintiff's
solicitors did not act responsibly.
They achieved the object of making any
appeal by the defendants pointless and they made any application for a
temporary order pending
appeal also pointless. The present application is in
the latter category. The plaintiff's solicitors should pay the costs of this
application and I so order.