King v AG Australia Holdings Limited (formerly GIO Australia Holdings Limited) [2002] FCA 151 (25 February 2002)

Last Updated: 25 February 2002

FEDERAL COURT OF AUSTRALIA

King v AG Australia Holdings Limited (formerly GIO Australia Holdings Limited) [2002] FCA 151

PRACTICE AND PROCEDURE - Discovery - discovery and use of documents which may be the subject of a confidentiality agreement - whether an order for discovery should be made where the contentious documents may be used in breach of a duty of confidentiality - where the proceedings relate to an alleged civil wrong - where the proceedings are not brought by a public authority

Sullivan v Sclanders & Goldwell International Pty Ltd (2000) 77 SASR 419

referred to

Elliott v Ivey (Supreme Court of New South Wales, 23 April 1998, unreported)

referred to

A v Hayden [1984] HCA 67; (1984) 156 CLR 532 referred to

Weld-Blundell v Stephens [1919] 1 KB 520 referred to

Initial Services Ltd v Putterill [1968] 1 QB 396 discussed

Allied Mills Industries Pty Ltd v Trade Practices Commission (1981) 24 ALR

105 referred to

Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434

referred to

Deacon v Australian Capital Territory [2001] FCA 1634 discussed

Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 referred to

The Public Interest Exception to the Breach of Confidence Action: Are the

Lights About to Change? J Pizer (1994) 20 MonLR 67 referred to

SHANE ROBERT KING v AG AUSTRALIA HOLDINGS LIMITED (FORMERLY GIO AUSTRALIA HOLDINGS LTD) (ACN 054 573 401), GRANT SAMUEL & ASSOCIATES PTY LTD (ACN 050 036 372), DAVID MORTIMER, BRUCE HOGAN, STEWART STEFFEY, RONALD ASHTON, MARINA DARLING, ANDREW KALDOR, LLOYD LANCE, DAVID O'HALLORAN AND IAN POLLARD

N 955 OF 1999

MOORE J

25 FEBRUARY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N955 OF 1999

BETWEEN:	SHANE ROBERT KING APPLICANT
AND:	AG AUSTRALIA HOLDINGS LIMITED (formerly GIO AUSTRALIA HOLDINGS LIMITED) FIRST RESPONDENT GRANT SAMUEL & ASSOCIATES PTY LTD SECOND RESPONDENT DAVID MORTIMER THIRD RESPONDENT BRUCE HOGAN FOURTH RESPONDENT STEWART STEFFEY FIFTH RESPONDENT RONALD ASHTON SIXTH RESPONDENT MARINA DARLING SEVENTH RESPONDENT ANDREW KALDOR EIGHTH RESPONDENT LLOYD LANGE NINTH RESPONDENT DAVID O'HALLORAN TENTH RESPONDENT IAN POLLARD ELEVENTH RESPONDENT PRICEWATERHOUSECOOPERS SECURITIES LIMITED CROSS-RESPONDENT TO CROSS-CLAIMS 1A AND 2C MACQUARIE BANK LIMITED CROSS-RESPONDENT TO CROSS-CLAIM 1C GIO INSURANCE LTD CROSS-RESPONDENT TO CROSS-CLAIM 2A TRELSS RICHARD ADAM AND ORS [PRICEWATERHOUSECOOPERS] CROSS-RESPONDENTS TO CROSS-CLAIMS 1A AND 2C PRICEWATERHOUSECOOPERS ACTUARIAL PTY LIMITED CROSS-RESPONDENT TO CROSS-CLAIM 2C
JUDGE:	MOORE J
DATE OF ORDER:	25 FEBRUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. That discovery of the Burton documents (as described in the affidavit of Bernard Murphy sworn 16 October 2001) insofar as they fall within the categories of discovery which are the subject of court orders, be completed within seven days.

2. The parties bring in short minutes of order concerning the discovery of the Australian Securities and Investments Commission documents to give effect to these reasons.

2A Order 1 be stayed until 4pm 28 February 2002.

3. The costs of the motion concerning the documents referred to in orders 1 and 2, be costs in the cause.

3A The parties have liberty to apply on 3 hours notice.

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	N955 OF 1999

BETWEEN:

SHANE ROBERT KING APPLICANT

AND:

AG AUSTRALIA HOLDINGS LIMITED (formerly GIO AUSTRALIA HOLDINGS LIMITED) RESPONDENT GRANT SAMUEL & ASSOCIATES PTY LTD SECOND RESPONDENT DAVID MORTIMER THIRD RESPONDENT BRUCE HOGAN FOURTH RESPONDENT STEWART STEFFEY FIFTH RESPONDENT RONALD ASHTON SIXTH RESPONDENT MARINA DARLING SEVENTH RESPONDENT ANDREW KALDOR EIGHTH RESPONDENT LLOYD LANGE NINTH RESPONDENT DAVID O'HALLORAN TENTH RESPONDENT IAN POLLARD ELEVENTH RESPONDENT PRICEWATERHOUSECOOPERS SECURITIES LIMITED CROSS-RESPONDENT TO CROSS-CLAIMS 1A AND 2C MACQUARIE BANK LIMITED CROSS-RESPONDENT TO CROSS-CLAIM 1C GIO INSURANCE LTD CROSS-RESPONDENT TO CROSS-CLAIM 2A TRELSS RICHARD ADAM AND ORS [PRICEWATERHOUSECOOPERS] CROSS-RESPONDENTS TO CROSS-CLAIMS 1A AND 2C PRICEWATERHOUSECOOPERS ACTUARIAL PTY LIMITED CROSS-RESPONDENT TO CROSS-CLAIM 2C

JUDGE:	MOORE J
DATE:	25 FEBRUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 This judgment deals with a dispute between the applicant and the first respondent, AG Australia Holdings Limited (formerly GIO Australia Holdings Limited) ("GIO"), about discovery. The proceedings are representative proceedings and a summary of the applicant's case can be found in King v GIO Australia Ltd [2000] FCA 617; (2000) 100 FCR 209 at 215. Much of that case is based on allegations that the respondents, including GIO, engaged in conduct in contravention of Part V of the Trade Practices Act 1974 (Cth) ("the TP Act"). The dispute concerning discovery has two aspects. The first is that the applicant now seeks, by notice of motion, discovery from GIO of particular documents in order to facilitate the timely preparation of a witness statement by a Mr Burton. The second is that the applicant also seeks discovery of various documents it asserts are in the possession, custody or control of GIO which have not, but should have been, discovered having regard to orders for discovery made earlier in the proceedings.

Discovery of documents to prepare statement of Mr Burton

2 I turn to consider the first issue, namely whether GIO should now give discovery of certain documents to facilitate the preparation of a witness statement of Mr Burton. The applicant also says that these documents should be discovered to give effect to a representation made by counsel for GIO at a directions hearing on 18 October 2001. It is not in issue that the documents have been or will be discovered pursuant to orders already made and that the final stage of discovery will take place on or before 31 March 2001. In substance the dispute only concerns when the remaining documents will be discovered. It is a question of timing. So much appeared to be conceded by counsel for GIO.

3 GIO did not put in issue that the early production of the documents would facilitate the timely preparation of a witness statement of Mr Burton. However GIO opposed an order effectively accelerating discovery of the documents on the basis that as a matter of discretion, no order should be made. GIO tendered a confidentiality agreement or undertaking signed by Mr Burton. I will set out its contents shortly. Discovery of the documents at this time is resisted by GIO on two bases. First the discovery of the documents now will interrupt the orderly giving of discovery presently in train as a result of orders earlier made. Secondly the documents are sought for a purpose which, at least prima facie, involves Mr Burton breaching the confidentiality agreement or undertaking and duties he owes GIO as a former employee. It would also involve, prima facie, unlawful and improper conduct on the part of the applicant's solicitors.

4 Mr Burton's position was first raised in these proceedings late last year. At a directions hearing on 18 October 2001, counsel for the applicant sought an order seeking discovery of particular documents, namely documents Mr Burton had delivered to GIO in May 2001. On 18 October 2001, counsel for the applicant filed in Court an affidavit of Mr Bernard Murphy (sworn 16 October 2001) setting out his understanding of Mr Burton's position. While the affidavit was not formally read, the hearing on that day proceeded on the assumption that the facts it referred to provided the factual background against which the parties and the Court discussed what would happen in relation to the "Burton documents". Towards the conclusion of the directions hearing, counsel for GIO said:

"[COUNSEL FOR GIO] Your Honour, the reason [for resisting an order for discovery of the Burton documents] is [that] a number of documents which are being referred to as the Burton documents have already been discovered. Others which are relevant, in the sense that they are categories of discovery which are the subject of the court orders, will be discovered in what are, I think, two remaining tranches, one in November and one in December"

And a little later said:

"[COUNSEL FOR GIO] ..... Let me make clear. To the extent that documents returned to us from Mr Burton are discoverable and we've discovered some, we will discover all the discoverable ones and identify in our list the fact that they come from Mr Burton's box. If the documents are not discoverable, we won't discover them.

HIS HONOUR: And will that be completed by the end of discovery to take place, what, in early December?

[COUNSEL FOR GIO] My notes suggests the tranche 11 is due on 31 December, which is not a very attractive date but, at any rate, it is December. I think tranche 9 was 30 September. We did comply with that despite her (counsel for the applicant) suggestion to the contrary. Tranche 11 I have as 31 December. I am told that a lot of the Burton documents will be in tranche 10 which is due in November."

5 After these submissions were made, counsel for the applicant did not pursue an order for particular discovery of the Burton documents. The preceding comments are now relied on by the applicant as the representation that discovery of the Burton documents would be concluded by December 2001.

6 On 31 May 1999 Mr Burton signed a confidentiality agreement in the following terms:

"CONFIDENTIALITY UNDERTAKING

To: GIO AUSTRALIA HOLDINGS LIMITED

In consideration of GIO Australia Holdings Limited (and its related bodies corporate) (the "Employer") disclosing to me certain information:

1. I acknowledge that all of the information described or relating to the matters set out in Schedule 1 below is confidential (the "Confidential Information") and is either the property of the Employer or is the subject of confidentiality obligations of the Employer.

2. I undertake:

(a) not to disclose the Confidential Information to any other person or corporation, including other employees of the Employer, unless they have signed a confidentiality undertaking;

(b) to take or cause to be taken all such precautions as may be necessary to maintain the secrecy and confidentiality of the Confidential Information;

(c) that the Confidential Information will only be used exclusively and only to the extent necessary to perform my duties for the Employer;

(d) not to grant third parties access to the Confidential Information without the prior written approval of the Employer; and

(e) to ensure that any third party to whom access to the Confidential Information is granted under clause 2(d) signs a confidentiality undertaking.

3. The covenants in this agreement shall not apply to any information which becomes generally known to the public otherwise than as a breach of this agreement or the breach of any similar agreement.

4. I acknowledge that this undertaking does not limit the confidentiality obligations under my contract of employment.

Schedule 1

"Confidential Information" means any information relating to the Reinsurance business conducted by GIO Insurance Limited, including but not limited to information concerning the past and future revenue and profitability, and the business, operations and management, of that business (whether I receive such information in writing or by any other form of communication).

Signature: ________________________

Name: Nigel Burton______________

Date: 31 May 1999______________"

7 It was apparent from the affidavit of Mr Murphy of 16 October 2001 (referred to earlier) that Mr Burton had been employed in GIO's reinsurance business and left his employment in approximately December 1999. He took the contentious documents with him when he left his employment. Having regard to the affidavit, it appears to be accepted by the applicant that the documents were documents of GIO, or at least documents given to Mr Burton by GIO in the course of his employment. Mr Burton returned the documents to GIO in May 2001 as a result of a demand made of him by the company. It was clear from the affidavit of Mr Murphy, and submissions made by counsel for the applicant on 18 October 2001, that Mr Burton was co-operating with the applicant's solicitors. At one point during the hearing on that day, I was informed by counsel for GIO that he would seek instructions about whether legal proceedings would be taken against Mr Burton to restrain him from disclosing confidential information to the applicant's solicitors. No such proceedings have been commenced.

8 I have no knowledge, other than what I have gleaned from general observations from the bar table and the affidavit of Mr Murphy of 16 October 2001, what the nature of the communications between Mr Burton and the applicant's solicitors has been to this point. Nor do I know precisely what the applicant's solicitors propose to do, in conjunction with Mr Burton, with the documents sought to be discovered. I was, however, informed from the bar table that correspondence has passed between the applicant's solicitors and the solicitors representing GIO about the nature of the discussions the former has had, or intended to have, with Mr Burton. However I do not know what is proposed by the applicant's solicitors. As noted earlier, GIO does not suggest that the documents are not discoverable. What counsel for GIO submitted was that no order should be made effectively requiring early discovery of some of the contentious documents because it would facilitate what is prima facie unlawful and/or improper conduct on the part of both Mr Burton and the applicant's solicitors.

9 This submission raises for consideration legal issues concerning the use that a former employee may make of confidential documents and information. However neither the submissions of counsel for GIO nor of counsel for the applicant addressed, other than in the most general way, applicable legal principles. As soon as one descends into detail, it is clear that the legal issues raised by GIO are not susceptible of a ready or easy answer. I do not propose to canvass in detail all the applicable authorities. In summary, however, it may be accepted that circumstances can arise where the courts will intervene to restrain the use of confidential information and documents tendered to a solicitor: for a recent example see Sullivan v Schlanders & Goldwell International Pty Ltd (2000) 77 SASR 419. Courts may also restrain evidence being given which involves a breach of confidence: a recent example where the court refused to do so can be found in Elliott v Ivey (Supreme Court of New South Wales, 23 April 1998, unreported) although that case involved Division 1A of the Evidence Act 1995 (NSW) (there is no equivalent provision in the Commonwealth legislation).

10 However the courts have shown a reluctance to intervene if the alleged breach of confidence relates to conduct which was a criminal act or was a civil wrong. Many of the cases were discussed by the High Court in A v Hayden [1984] HCA 67; (1984) 156 CLR 532. At one stage the authorities suggested that an alleged breach of confidentiality would not be enjoined if the confidential information concerned the future commission of a crime or a civil wrong: see Weld-Blundell v Stephens [1919] 1 KB 520. However it now appears to be accepted that a person may not be able to restrain the communication of confidential information if it relates to prior conduct involving a crime or a civil wrong. That is, confidential information concerning a civil wrong already committed.

11 The law in this area developed, relevantly for present purposes, with the judgment of the Court of Appeal in Initial Services Ltd v Putterill [1968] 1 QB 396. In that matter an issue arose about the disclosure by a former employee of information and documents which might have revealed contravention of the Restrictive Trade Practices Act 1956 (UK) and related misrepresentations. A sales manager left his employment and took with him documents of his former employer. The former employee gave those documents to a national newspaper and provided the newspaper with information about the affairs of the former employer. That led to newspaper articles alleging that the former employer and others in the same industry had engaged in collusive and unlawful conduct. The former employer sought to restrain the former employee and the newspaper from further using the confidential information and orders requiring the delivery up of the confidential documents. The Court of Appeal refused to strike out a defence raised by the former employee and the newspaper on the footing that, arguably, the information supplied by the former employee was not within the realm of confidence to which a master could hold his servant.

12 This and a number of other authorities were canvassed by Sheppard J in Allied Mills Industries Pty Ltd v Trade Practices Commission (1981) 24 ALR 105. In that matter, his Honour dismissed a cross-claim by Allied Mills Industries Pty Ltd ("Allied") brought in proceedings (for a penalty and injunctive relief) in which Allied was a respondent. In those proceedings the Trade Practices Commission alleged there had been contravention of s 45 of the TP Act. In the cross-claim, Allied sought to restrain the use of confidential information furnished to the Trade Practices Commission by one of its employees. The employee's contact with the Commission commenced before his employment with Allied terminated and continued after it had. Sheppard J dismissed the cross-claim. His Honour concluded that the disclosure of evidence or material which established or tended to establish the breach of trade practices legislation was the disclosure of iniquity within the rule that the disclosure of information to the appropriate authority and perhaps the press of iniquity will always outweigh the public interest in the preservation of private or confidential information. Of some importance is that his Honour (at 142) indicated that a breach of Part V of the TP Act as well as a breach of Part IV was an iniquity within the applicable rule.

13 The iniquity principle or rule was described by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 at 456:

"That principle [the iniquity rule], in my view, is no wider than one that information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of the iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in addressing such crime, wrong or misdeed."

14 In the present matter, the disclosure in question is by Mr Burton to solicitors acting on behalf of an applicant in civil proceedings in which GIO and others are alleged to have been engaged in a civil wrong. Plainly that distinguishes this case from others where the recipient of the confidential information was a public authority or newspaper. However the proceedings brought by the applicant are representative proceedings on behalf of what is now presently a group comprising approximately 40,000 members. It has been noted in an article The Public Interest Exception to the Breach of Confidence Action: Are the Lights About to Change? J Pizer (1994) 20 MonLR 67 at 76 (footnote 53) that in relation to the disclosure of information relating to the commission of a private wrong:

"The courts must recognise that the public interest in the administration of justice is strengthened where a large number of people are affected by the private wrong."

15 I do not intend to express a concluded view about whether it is open to Mr Burton and the applicant's solicitors now to discuss information known to Mr Burton that is probably confidential (it is put in this qualified way simply because I do not know precisely what the documents are or what they say). Nor do I intend to express a concluded view about whether it will be open to Mr Burton and the applicant's solicitors to discuss such information when documents are received by the solicitors through the discovery process. It may be necessary, at some stage in these proceedings, to deal with these issues more directly and finally and, I would imagine, with the benefit of full submissions.

16 Moreover even if Mr Burton could be restrained from disclosing confidential information and the appellant's solicitors restrained from using it (perhaps on the basis that involved an equitable fraud for the solicitors to be knowingly involved in a breach of confidence or on the basis that it involved an inducement to breach a contract), I simply do not know enough of what is proposed by the applicant's solicitors, in its dealings with Mr Burton, to express a view about whether what he is doing or proposes to do is unlawful (even, as counsel for GIO submitted, on a prima facie basis) or whether (on the same basis) the applicant's solicitors will be acting unlawfully or improperly.

17 A broadly similar issue arose in proceedings in the Supreme Court of the ACT in Deacon v Australian Capital Territory [2001] ACTSC 8. In issue was whether a solicitor acting for a defendant in an action for damages for personal injury (which had occurred in a public hospital) had been in contempt of court for allegedly making comments to the plaintiff's solicitor effectively warning him off interviewing an employee of the defendant. One of the matters which was alleged to have been said was that the employee would not have had lawful authority to make a statement. An affidavit had been sworn by the defendant's solicitor (Mr Bayliss) in which he said:

"I do not recall saying `it is a breach of the law for an employee of the hospital to make any statement to you', I do recall saying `it is potentially a breach of the Public Sector Management Act for any employee of the hospital to make any statement to you about a matter involving the hospital without authority from their supervisor to do so'.

I also said to Mr Harris (the plaintiff's solicitor) that an employee owed a duty of confidentiality to an employer. I further said that in circumstances where the negligence of employees forms the cause of action that it was potentially a breach of that duty for an employee to provide a statement to Mr Harris."

18 On appeal the Full Court of this Court said ([2001] FCA 1634 at [14]):

"A solicitor in Mr Harris' position is wholly within his rights to approach any employee of the hospital seeking a statement from him or her. The only possible qualification to that statement would be that the approach should be outside working hours and not within the hospital's premises.

If a plaintiff's solicitor were to approach a public employee seeking from him or her a statement as a potential witness, the solicitor would not know whether the employee had or did not have "lawful authority" to make such a statement. The solicitor would not know, prior to hearing what the employee might say, whether the acts or omissions that might be the subject of a statement were seen or done or omitted to be done in the performance of the public employee's duties. Finally, the solicitor would not know, prior to the interview, what the employee might say, and whether the acts or omissions (ie the "information") were acquired by the employee "as a consequence of his or her employment". The solicitor, as counsel for the Territory conceded, did not have a duty of care to inquire whether the employee could or could not make a statement. That was the responsibility of the intended witness. If Mr Bayliss said that which has been attributed to him, he was gravely mistaken."

19 GIO and its advisers have had some months to take steps to restrain Mr Burton if they wished to assert whatever rights GIO may have which would preclude him talking to the applicant's solicitors and giving them information or discussing documents with them. I am not satisfied that I should, as a matter of discretion, refrain from making the orders sought by the applicant if there is good reason to make those orders. I do not accept, on the material presently before the Court and on the submissions made, that there is a prima facie case of unlawful conduct (present or future) on the part of Mr Burton or the applicant's solicitors.

20 I should add that while counsel for GIO submitted that any order concerning the Burton documents would impact negatively on the giving of discovery more generally, nothing was specifically put that suggests giving discovery of a limited number of documents (at times described as a box full) would be unduly burdensome. I should add that I do not view the observations of counsel for GIO on 18 October 2001 (if the observations are relevant to when discovery should be given, which I doubt) as an unequivocal commitment to discover all the Burton documents (that were discoverable) by December 2001. While the comments may be viewed that way having regard to the question I asked, they may have meant no more than discovery of them would occur as and when documents of the same class were discovered pursuant to orders then operating.

21 As noted earlier, it appears not be in issue that requiring discovery of all the Burton documents now will facilitate the timely preparation of a witness statement by Mr Burton. He is portrayed by the legal representatives of the applicant as potentially an important witness. He may be. These proceedings have been on foot since 31 August 1999. In my opinion, it is desirable that any steps that might reasonably be taken to expedite the preparation of the matter ought be facilitated. Accordingly I propose to make the order sought by the applicant concerning the discovery of the Burton documents. No issue was raised about the terms of the proposed order.

The documents which should have been discovered

22 The applicant seeks an order requiring discovery of approximately 50 documents which have been produced on subpoena by the Australian Securities and Investments Commission ("ASIC") and inspected, I apprehend, by all parties. The applicant's solicitors have seen the documents and have noted that they include the 50 contentious documents and that many of the 50 contain a bar code and document number used by GIO to code its documents in these proceedings. I am asked to infer that the code and number were affixed before the documents were handed to ASIC (probably no later than March 2000 when ASIC interviewed GIO's actuary). This is probably so. What flows from that fact is another matter.

23 The categories of documents which I understand are in this second contested group are:

1. Documents which GIO has already discovered (there are three documents or bundles of documents in this category).

2. Documents which GIO says it has already discovered but this is disputed (there is one such document).

3. Documents which GIO conceded should have been discovered already but have not been (there are three such documents).

4. Documents which GIO conceded should be discovered and will be discovered in tranche 12.

5. Documents which GIO has in its possession as a result of the subpoena issued to ASIC which do not contain the code used by GIO.

6. Documents with GIO code which GIO's solicitors say do not appear in a data base they have created of relevant documents.

24 There was no detailed analysis of most of these documents by counsel. Indeed only a limited number of them were in evidence. It is unnecessary to say anything further about the first category. There is no basis for inferring, as I understand the evidence, that documents in the fifth category were in the possession, custody or control of GIO before they were provided by ASIC. I see no reason to require GIO to give discovery of them. It may be, that on closer analysis, it might be inferred (at least arguably) from the documents themselves that the documents had been in the possession of GIO before copies were provided by ASIC. If so, their position can be considered further. Documents in the fourth category will be discovered shortly.

25 In my view, it is appropriate discovery should now be given in relation to documents in the second, third and sixth categories. However the parties should be given an opportunity to consider what should happen in relation to documents in the second category and to further investigate whether, as a matter of fact, they have been discovered. While it may be that documents in the sixth category are no longer in the possession of GIO, that does not preclude discovery being ordered and appropriate inquiries made by GIO as to the whereabouts of the documents. Accordingly I propose to order that discovery now be given of documents in categories three and six. I will leave it, at least initially, to the parties to agree on an appropriate form of order. I accept that it is almost certainly the case that giving discovery (by GIO) in this matter has and will require a marshalling of considerable resources and the coordination of a number of personnel. GIO must have the opportunity of giving discovery in a structured and organised way. I would expect that this would be reflected in any order and, in particular, the time at which discovery should be given. If agreement is not reached within 10 days, the applicant is to submit an order giving effect to these reasons.

26 I wish to conclude by making one observation. These proceedings are not straightforward. To this point my impression has been that the legal representatives of all parties have been quite prepared, by and large, to co-operate with each other and with the Court to facilitate the preparation of the matter for trial. From my perspective, the co-operation with the Court has been palpable and has resulted in what I consider is an appropriate balance of formal and informal resolution of issues. It will not be in anyone's interests if there is a lessening of the cooperation between the legal representatives, though I am apprehensive that the matters I have been called upon to consider in this application (particularly the second matter) may suggest there is. I know it is unnecessary to repeat the observations of Mason J in Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 556 or later observations to similar effect concerning the obligations of both barristers and the solicitors that instruct them.

27 It may be appropriate to put in place a regime where parties notify each other ten days before any directions hearing of any order sought and the material each relies on so that instructions can be obtained and issues discussed. This is a matter that can be considered further at the directions hearing on 20 March 2002. The alternative would probably be to insist on strict compliance with the Rules concerning any application a party wished to make and any order a party wished to have made. I would hope that would not be necessary.

Postscript

28 After I had prepared these reasons, my associate received (at approximately 12.30pm on Friday 22 February 2002) a facsimile from the solicitors acting for GIO revising a schedule I had been provided with at the hearing on 15 February 2002. I have not sought to digest the contents of the schedule, though I do note that the solicitors advise that it seems to them "the discovery issue should be capable of being resolved by communication between the parties". While, consistent with what I have earlier said, it is helpful that the matter might be resolved in this way, it is unfortunate the attempts to resolve it are occurring after the hearing and after I have spent some time considering the matter. This state of affairs merely reinforces the need to establish a regime of the type referred to in the preceding paragraph.

Post postscript

29 After the parties were notified on the afternoon of 22 February 2002 (by facsimile sent at 3.18pm) that this judgment was to be given, my associate was sent a facsimile by the solicitors acting for GIO (received at 5.15pm) advising that proceedings had been commenced that day in the Supreme Court of New South Wales against Mr Burton and the applicant's solicitors seeking restraining orders. I was informed that an application for urgent interim orders was returnable before the Supreme Court at 9:30am on 27 February 2002. To this extent, my account of the factual background needs to be revised. However it does not alter the conclusion I have reached. Nonetheless I propose to make an order staying order 2 until 4pm on 28 February 2002 and a further order giving the parties liberty to apply on 3 hours notice.

I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 25 February 2002

Counsel for the applicant:	Dr K Hanscombe
Solicitor for the applicant:	Maurice Blackburn Cashman
Counsel for the first respondent:	Mr I M Jackman
Solicitor for the first respondent	Ebsworth & Ebsworth
Date of Hearing:	15 February 2002
Date of Judgment:	25 February 2002