Morton v Bolinda Publishing Pty Limited

1. The applicant and cross-respondent pay the costs of the appearance of Ms Selwa Anthony and Selwa Anthony Pty Limited at the interlocutory hearing on 3 and 6 April 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BURLEY J: 1 On 2 March 2017, I dismissed an interlocutory application filed by the applicant, Ms Kate Morton, which challenged a claim made by the respondent, Bolinda Publishing, for legal professional privilege in respect of 11 documents included in a list of documents filed pursuant to discovery orders made by the trial judge. At the hearing, Ms Selwa Anthony and her company, Selwa Anthony Pty Limited (referred to below collectively as Ms Anthony), also made a claim for legal professional privilege in respect of two of the 11 documents. Neither is a party to these proceedings, but I granted their legal representative leave to appear at the hearing in order to advance her claim, and they relied on an affidavit sworn by her solicitor in support of that application. 2 I concluded that the claim for legal professional privilege in all of the documents should be upheld. Specifically, I concluded in relation to the two documents in which Ms Anthony has an interest that they each benefit from joint privilege and common interest privilege (see Morton v Bolinda Publishing Pty Limited [2017] FCA 187 at [64] - [77]) and that there had been no express or implied waiver in respect of either ([78] - [89]). 3 In the judgment, I indicated my provisional view that the costs of Ms Anthony's separate representation should follow the event. However, I granted Ms Morton leave to advance short submissions in writing if she wished to make submissions seeking a different outcome, and leave to Ms Anthony to advance short submissions in answer. Each accepted that invitation. 4 I have considered the further submissions made. Ms Morton submits that Ms Anthony provided no advanced notice of her privilege claim, that her affidavit was served on the evening of 30 January 2017 but that her intention to appear was not indicated until three days later; that no written submissions were served in support of her claim; and that she had earlier failed to respond to a subpoena in respect of which any privilege claim would also have become the subject of the application that was heard on 3 and 6 February 2017. These matters, Ms Morton submits, constitute disentitling conduct for the purposes of assessing costs within the principle set out in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. 5 In my view, it was reasonable for Ms Anthony to be represented to advance her claim for privilege. Had Ms Morton and Bolinda Publishing settled the interlocutory application, Ms Anthony was entitled to be present to prosecute her separate claim. I do not consider that advance notice from Ms Anthony of her claim, or the provision of written submissions would have advanced the matter further, the relevant claims for joint and common legal professional privilege having been advanced already by those representing Bolinda Publishing. Nor do I consider that the subpoena in question has a material bearing in relation to the question of costs. In practical terms, had documents been produced in response to the subpoena, it is probable that an equivalent privilege claim would have been raised, in the same form, and heard on 3 February 2017, with the same result. 6 Ultimately, I consider that the appropriate order is that the costs of the claim for privilege should follow the event and that Ms Morton should pay Ms Anthony's costs of her representative's appearance at the hearing. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.