Martin v Hillier

• Jurisdiction: Australia Federal only
• Judgment Date: 15 March 2022
• Neutral Citation: [2022] FCA 351
• Date: 15 March 2022
• Court: Federal Court

Federal Court of Australia

Martin v Hillier [2022] FCA 351

Appeal from:	Application for leave to appeal: Hillier v Martin (No 10) [2022] FCA 166
File number(s):	SAD 34 of 2022
Judgment of:	O'SULLIVAN J
Date of judgment:	15 March 2022
Date of publication of reasons:	6 April 2022
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application – application for leave to appeal – production – whether applicant established a decision at first instance is attended with sufficient doubt to warrant it being considered by the Full Court – whether applicant established claim of privilege against self-incrimination – application for leave to appeal dismissed – respondent to this application has liberty to apply
Legislation:	Federal Court of Australia Act 1976 (Cth), ss 24(1)(a) & 24(1A) Federal Court of Australia Rules 2011 (Cth), r 35.11
Cases cited:	Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd (As Trustee for Sadie Ville Superannuation Fund) [2020] FCAFC 23; (2020) 144 ACSR 1 Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 392 ALR 1 Ensham Resources Pty Limited v Aioi Insurance Company Limited [2012] FCAFC 191, (2012) 209 FCR 1 Hillier v Martin (No 10) [2022] FCA 166 Hillier v Martin (No 4) [2021] FCA 710 Martin v Hillier (No 2) [2021] FCA 958 Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547; 1 All ER 434 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 3) [2018] FCA 1107; (2018) 357 ALR 695
Division:	Appeal Division
Registry:	South Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	43
Date of hearing:	15 March 2022
Counsel for the Applicant:	Mr S Ower QC
Solicitor for the Applicant:	Norman Waterhouse
Counsel for the Respondent:	Mr R Whitington QC
Solicitor for the Respondent:	Sykes Bidstrup Solicitors

ORDERS

		SAD 34 of 2022
BETWEEN:	VICTORIA MARTIN Applicant
AND:	JAMES HILLIER Respondent

order made by:	O'SULLIVAN J
DATE OF ORDER:	15 March 2022

THE COURT ORDERS THAT:

1. The application for leave to appeal the decision of Justice Anderson is dismissed.

2. The respondent to this application has liberty to apply generally NOTING that if liberty is exercised, the matter will be listed at 2.00pm on Thursday 17 March 2022.

3. The parties have liberty to apply in relation to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’SULLIVAN J

Introduction

1. The applicant in these proceedings, Ms Victoria Martin (“applicant”), who is the first respondent to Hillier v Martin, Nordburger Operations Pty Ltd and Eric Vari Pty Ltd, SAD 113 of 2020 (“main proceedings”), seeks leave to appeal pursuant to ss 24(1)(a) and 24(1A) of the Federal Court of Australia Act 1976 (Cth) and r 35.11 of the Federal Court Rules 2011 (Cth) from an interlocutory order made 3 March 2022 by Anderson J in the main proceedings. In that order, his Honour dismissed an application to stay an order for production made by Charlesworth J in the main proceedings of a document known as the “Xero database” (or “Xero document”) on the basis of a claim by the applicant for privilege against self-incrimination.

2. Anderson J’s orders made 3 March 2022, provide, amongst other things, in order 4 that:

On or before 9 March 2022, the First Respondent is to produce for inspection the Xero database, in its entirety, by way of electronic access to a read only version of the documents, such access is to be facilitated by the provision of log in access to software that facilitates readable access to the materials.

3. When dismissing the applicant’s application on 3 March 2022, his Honour produced reasons: Hillier v Martin (No 10) [2022] FCA 166 (“Reasons”).

4. The application seeking leave to appeal, which was filed at 4.17pm on Wednesday 9 March 2022, also applied for a stay of order 4. Contrary to those orders, the applicant did not produce the Xero database for inspection.

5. On 11 March 2022, which was the first return date on the application for leave to appeal, I listed the application for leave to appeal for argument on 15 March 2022. Although Mr Ower QC, who appeared for the applicant, did not press for a stay on that occasion, given the listing of the argument on 15 March 20222, I extended the time in order 4, made by Anderson J on 3 March 2020, from 9 March 2022 to 5.00pm on 16 March 2022.

6. At the conclusion of the argument on 15 March 2022, I dismissed the application for leave to appeal and indicated I would publish my reasons at a later time. These are those reasons.

Grounds for leave to appeal and documents relied upon

7. In support of her application, the applicant reads the affidavit of Stefanie Magliani, sworn 9 March 2022 (“Magliani affidavit”). Exhibit SM-1 to that affidavit are Anderson J’s reasons delivered 3 March 2022.

8. The proposed notice of appeal, upon which the applicant relies should leave to appeal be granted, contains 11 grounds and is exhibit SM-2 to the Magliani affidavit. When the matter was called on, the applicant informed the Court that the applicant pressed only grounds 8, 9 and 10 of the proposed notice of appeal: Transcript dated 15 March 2022, p 2, lines 29 - 31.

9. In opposition to the application for leave to appeal the respondent to this application (“respondent”), who is the applicant in the main proceedings, also relied on the Magliani affidavit.

History

10. The issue of production of the Xero database has an extensive history in the main proceedings. That history is irrelevant to my consideration of the merits of the application for leave to appeal against the interlocutory orders of Anderson J made 3 March 2022, however it is relevant to orders that may be made for the production of the Xero database.

11. Charlesworth J has primary conduct of the main proceedings.

12. On 25 June 2021, her Honour made orders for production of the Xero database and published reasons: Hillier v Martin (No 4) [2021] FCA 710 (“Hillier (No 4)”). Her Honour held that the Xero database constituted a single “document” and was both relevant and subject to production: Hillier (No 4) [31], [41], [63]. Her Honour made orders requiring the applicant in these proceedings (ie the respondent in the main proceedings) to produce the Xero database to the applicant in the main proceedings by granting “read only access” to it. That access was to be by way of log in details and password.

13. An application by the applicant in these proceedings for leave to appeal against her Honour’s decision in Hillier (No 4) was heard by Anderson J on 6 August 2021 and dismissed on 12 August 2021: Martin v Hillier (No 2) [2021) FCA 958.

14. On 27 August 2021, the applicant resisted production of the Xero database by claiming legal professional privilege. On 28 September 2021, Charlesworth J noted that the applicant in these proceedings had not complied with her Honour’s orders made on 25 June 2021 for production of the...