Project 28 v Barr (No 2)

I gave judgment in this matter on 4 July 2007. There is before the court today, in accordance with the direction I gave, short minutes of order to give effect to my reasons for judgment.

There is agreement with respect to most of the orders sought by the plaintiff, Project 28 Pty Ltd. There is disagreement over the question of costs. Project 28 argues that the third defendant, Richtech Pty Ltd, should be ordered to pay its costs in respect of the notice of motion before the Associate Justice and its costs of the appeal to me. Richtech argues that the costs should be costs in the cause.

McLaughlin AsJ made an order that before any lay witness was called to give evidence in the case of Richtech, a statement by the solicitor for the Richtech be served upon Project 28 and upon the first defendant, Timothy James Barr, and second defendant, Barr Project Management Pty Ltd, such statement to set forth the nature of the evidence which the solicitor understood would be given by that lay witness.

In my reasons for judgment I indicated that the appropriate order was for the delivery by Richtech of witness statements by a specified date, except in the case of any witness who claimed privilege against self-incrimination. In that case, a witness statement should only be provided to Project 28 at the close of its case against Richtech if it proposed that such witness would give evidence on its behalf.

I accept the submission of Mr West QC for Richtech that neither party was totally successful in the appeal to me. The variation of the order was circumscribed and governed by my concern that, if the order of the Associate Justice stood, it would subvert the decision of the High Court in Environment Protection Authority v Caltex Refinery Co Pty Ltd (1992-1993) 178 CLR 477 .

Mr Dubler SC, who appears for Project 28, argued that, if the order that I proposed had been put forward before the McLaughlin AsJ it would have been accepted. Nevertheless, the matter was argued before me and the proposition was maintained on the part of Project 28 that there was no entitlement in a corporate defendant to claim privilege against self-incrimination.

In my view, neither party was totally successful and the appropriate order is that the costs, both of the notice of motion of 15 August 2006 and the appeal be costs in the cause.