Whitco Pty Ltd v Weavis, Nicolas & Ors [1994] FCA 1099

since the inception of the proceedings, and two solicitors employed by that firm.

The claim sought to be raised by the cross-claim is in trespass. The application for joinder is opposed by the applicant and also by the second and third respondents. If the application is granted, it will, in my view, necessarily mean that the solicitors who have acted for the applicant from the inception of the proceedings will have to withdraw and new solicitors retained, the new solicitors having to familiarise themselves with the quite complex proceedings

that are on foot between the applicant and the existing respondents.

It is inevitable that further delay will be occasioned. The concern of the second and third respondents is very much at the further delay likely to be caused by the retention of new solicitors and also by the addition of further parties and the introduction of further issues into the litigation. The second and third respondents have put material before me to demonstrate that they have real concerns about delays causing what appears to be quite serious detriment to their businesses. The facts upon which the proposed cross-claim is based arise out of the main

litigation, as I have indicated, but they do form a discrete episode.

Senior counsel for the first respondent, however, submits that it will be necessary to examine in detail, in determining the trespass claim, the same area of fact which will have to be examined in the current proceedings. He says that the Court should hold that there is a discretion to reject unlawfully obtained evidence in civil proceedings; that in view of the concern the Court has to ensure, so far as it can, that Anton Piller orders are enforced strictly in conformity with the limitations incorporated in the order commonly made by the Courts when it is considered appropriate to grant such extraordinary relief as Anton Piller relief, this is the sort of case in which unlawfully obtained evidence might very well be excluded as a matter of

discretion, should the Court hold that such a discretion is available to it.

I have been referred, in support of these submissions, to the decision of Pincus J

in Pearce v Button (1986) 8 F.C.R. 388 and particularly to a passage, obiter, at page 401-402.

His Honour there expressed a clear preference for the notion that there was such a discretion available to courts in civil cases. His Honour seems to have based his view on notions of unfairness which find particular reference in the cases dealing with the existence of the discretion

Senior counsel also referred to a very brief statement by Gibbs J in Miller v Miller (1978) 141 C.L.R. 269 at 277 and to the discussion by the Chief Justice and by Wells J in Mazinski v Bakka (1979) 20 S.A.S.R. 350 at 361 and 381 respectively. Although their Honours recognised, as did Pincus J in Pearce v Button, that there was no decision explicitly establishing the existence of a discretion to reject unlawfully obtained evidence in civil proceedings, there was ground for a court, on some appropriate occasion, to hold that such a discretion should be acknowledged. The Chief Justice and Wells J both saw as a possible foundation for the

existence of such a discretion on the civil side the court's powers to deal with abuses of process.

It was submitted that I should allow the joinder because, even though it was not necessary for me to form a firm view as to whether such a discretion exists, it was arguable that such a discretion did exist and that it would therefore be necessary to canvass, in the course of the existing proceedings, the same questions of fact in order to determine questions of admissibility of the documents seized under the Anton Piller order as will be canvassed in the

I would be very reluctant to adopt such an approach. I think that before relying upon an argument that the same area of fact will need to be canvassed as justifying joinder, I would need to be satisfied that there was such a discretion. It seems to me quit inappropriate to deal with such an important question in circumstances where the applicant is quite unprepared,

through want of notice, to deal with this question and, more particularly, where the first

respondent has not sought to put before me any of the factual material which I think would be

essential before such an argument could sensibly be evaluated and disposed of.

I am not prepared to hold that there is such a discretion available to a judge sitting in civil proceedings to exclude unlawfully obtained evidence. Given that, in my view, the potential for delay by the introduction of new parties at this stage of the litigation and the prejudice that that will occasion, both in my view, the applicant, by reason of having to change legal advisers or solicitors at least, and, more particularly, the second and third respondents, is

It matters not that the admissibility argument will, in all probability, be canvassed at the hearing; if the joinder is allowed, there will be additional issues that will take up additional time at the trial and will require time in the course of preparing the proceedings for hearing. I therefore dismiss the application for leave to cross-claim against the proposed first, second, third,

I certify that this and the preceding four pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Drummond.

Counsel for the first respondent:S.S.W. Couper Q.C.

Counsel for the proposed second and third respondents:

Solicitors for the proposed second and third respondents:

IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 90 of 1994 QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION )

First Respondent AND:MARKETMAKERS (AUST.) PTY. LTD. (A.C.N. 052 290 721)

MINUTES OF ORDERS JUDGE MAKING ORDER: Drummond J DATE OF ORDER: 28 September, 1994 WHERE MADE: Brisbane

1.The notice of motion filed 20 September, 1994 for an order that Whitco Pty. Ltd., Mervyn Harcourt-Cooze, Clayton Utz (a firm), Elizabeth Anne Milner, John Powell and Victor Joseph Lipinski be joined as cross-claimants is dismissed.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.