Griffin v Pantzer [2004] FCAFC 133 (18 May 2004)

PRACTICE AND PROCEDURE – Stay pending application for special leave to the High Court.

DAVID JAMES GRIFFIN v WARREN PANTZER (AS TRUSTEE OF THE BANKRUPT ESTATE OF DAVID JAMES GRIFFIN)
N 822 of 2003

RYAN, HEEREY & ALLSOP JJ
18 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 822 of 2003

BETWEEN:	DAVID JAMES GRIFFIN APPELLANT
AND:	WARREN PANTZER (AS TRUSTEE OF THE ESTATE OF DAVID JAMES GRIFFIN) RESPONDENT
JUDGES:	RYAN, HEEREY & ALLSOP JJ
DATE OF ORDER:	18 MAY 2004
WHERE MADE:	SYDNEY

UPON THE UNDERTAKING OF DAVID JAMES GRIFFIN TO THE COURT THROUGH HIS COUNSEL to pursue any application for special leave with all reasonable expedition and as soon as reasonably practicable to file an application for expedition and to preserve and maintain the privileged documents marked for identification 3.1A, 3.2A, 3.3A and 3.4A in the control of his solicitor Mr John Frederick Stuart North of North & Badgery at its Sydney Office; and

UPON THE UNDERTAKING OF JOHN FREDERICK STUART NORTH TO THE COURT to continue to preserve and maintain the privileged documents at his office in Sydney irrespective of any instructions to the contrary until the determination of the application for special leave and if special leave be granted the determination of the appeal and to deliver the privileged documents immediately to the respondent if the application for special leave be dismissed or if any appeal to the High Court of Australia be dismissed.

THE COURT ORDERS THAT:

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	N 822 of 2003

BETWEEN:	DAVID JAMES GRIFFIN APPELLANT
AND:	WARREN PANTZER (AS TRUSTEE OF THE ESTATE OF DAVID JAMES GRIFFIN) RESPONDENT
JUDGES:	RYAN, HEEREY & ALLSOP JJ
DATE:	18 MAY 2004
PLACE:	SYDNEY

1 On 11 May 2004, the Court dismissed an appeal from orders made by the primary judge dismissing an application by Mr David James Griffin in which he sought orders to the effect that he was not obliged to answer questions at a public examination and produce certain documents by reason of the privilege against self incrimination: see Griffin v Pantzer [2004] FCAFC 113.

2 On that day, 11 May 2004, the solicitors for the trustee (the respondent to the appeal) demanded compliance with order number 3 made by the primary judge, requiring delivery up of the documents over which the claim for privilege had been made. Those documents were in the possession of the solicitors for Mr Griffin. That solicitor had given an undertaking to keep those documents in existence pending the outcome of the litigation.

3 Mr Griffin wishes to seek special leave of the High Court to appeal from the orders made by this Court on 11 May. The trustee of his estate, Mr Pantzer, will not agree to a stay of the orders pending that application. Mr Griffin has agreed to undertake to the Court to pursue any application for special leave with all reasonable expedition and promptly to file an application for expedition of that special leave application. Mr Griffin also undertakes to preserve and maintain the privileged documents marked for identification before the primary judge in control of the solicitor Mr John North of North & Badgery at its Sydney office. Mr North has also undertaken to the Court to continue to preserve and maintain the privileged documents at his office in Sydney until the determination of the application for special leave and if special leave be granted the determination of the appeal and to deliver the privileged documents immediately to the respondent if the application for special leave be dismissed or upon the dismissal by the High Court of any substantive appeal.

4 Mr Street SC who, with Mr Wendler, appeared for Mr Griffin submitted that the subject matter of the litigation would be destroyed unless a stay were granted. That is not entirely accurate. However, part of the subject matter of the proceedings would be destroyed in that the documents over which privilege is claimed would go to the trustee thereby, arguably, destroying the privilege in them or at least its present relevant efficacy. Mr Griffin has not yet been asked questions in an examination.

5 Ms Painter, who appeared for Mr Pantzer, did not dispute in any substantive way that the subject matter of the appeal would, at least in part, be destroyed. Rather, the prejudice pointed to was in the management and conduct of the bankrupt estate and in related investigations and proceedings in relation to Mr Griffin’s wife, such prejudice arising from further delay and costs.

6 We do not propose to approach the application on the basis that there is attendant doubt in our orders. However, we accept the submission of Mr Street that there are matters of public importance in the issues underlying any application for special leave. Whilst we are not prepared to acknowledge that our orders are attended by doubt, we are, nevertheless, of the view that it is appropriate to permit Mr Griffin to seek special leave to appeal. Others may have a different view as to our reasons. In all the circumstances we do not think we should refuse a short stay which refusal would, or may, have the effect of undermining the value in a matter of public importance of an application for special leave to the High Court.

7 Mr Street suggested a short stay until next week in order that he might approach a Justice of the High Court in chambers. We do not think that the stay should be so because it would require a Justice of the High Court to determine the application in an unnecessarily short time. We think that the applicant should have a reasonable, though short, time to prepare an application for special leave and an application for expedition and to approach the High Court with such applications. Within that application, and depending upon the views taken by any Justice or Justices of the High Court it may be that it is thought appropriate that the High Court or this Court deal with any application for a further stay.

8 We think that Mr Griffin should have until 10 June, that is about four weeks, to undertake those matters.

9 We will grant liberty to apply. Also, we grant leave to the parties to approach Allsop J, as a single judge, in the first instance, in relation to any application concerning the stay including its variation, discharge or extension.

Upon the undertaking of David James Griffin to the Court through his counsel to pursue any application for special leave with all reasonable expedition as soon as reasonably practicable to file an application for expedition and to preserve and maintain the privileged documents marked for identification 3.1A, 3.2A, 3.3A and 3.4A in the control of his solicitor Mr John Frederick Stuart North of North & Badgery at its Sydney Office; and

Upon the undertaking of John Frederick Stuart North to the Court to continue to preserve and maintain the privileged documents at his office in Sydney irrespective of any instructions to the contrary until the determination of the application for special leave and if special leave be granted the determination of the appeal and to deliver the privileged documents immediately to the respondent if the application for special leave be dismissed or if any appeal to the High Court of Australia is dismissed.

The Court Orders:

1. Until midnight on 10 June 2004 Order 3 made by the Court on 23 June 2003 be
stayed.

2. Liberty to apply on two days’ notice.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Heerey & Allsop JJ.

Counsel for the Appellant:	Mr A.W. Street SC and Mr G.D. Wendler

Solicitor for the Appellant:	North & Badgery

Counsel for the Respondent:	Ms M. Painter

Solicitor for the Respondent:	Peter Kemp Solicitors

Date of Hearing:	12 May 2004

Date of Judgment:	18 May 2004

Federal Court of Australia - Full Court Decisions

Griffin v Pantzer [2004] FCAFC 133 (18 May 2004)