Amaca Pty Limited v CSR Limited (Re Fisher) (No. 1) - [2019] NSWDDT 9

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Amaca Pty Limited v CSR Limited (Re Fisher) (No. 1) [2019] NSWDDT 9
Hearing dates: 4 October 2019
Date of orders: 10 October 2019
Decision date: 10 October 2019
Before: Russell SC DCJ
Decision:
(1)   Adjourn the hearing of this matter to a date to be fixed.
(2)   Order the plaintiff to pay the defendant’s costs thrown away by reason of the adjournment of the hearing set down for 4 October 2019.
(3)   Refuse leave to the defendant to inspect the documents produced pursuant to paragraph 1 of the Notice to Produce dated 25 September 2019; the documents produced are to be returned to the plaintiff.
(4)   Grant leave to the defendant to inspect the documents produced pursuant to paragraph 2 of the Notice to Produce dated 25 September 2019.
(5)   Note that further invoices will be produced by the plaintiff in response to paragraph 3 of the Notice to Produce and that there will be no opposition to inspection of those further documents by the defendant.
(6)   Order each party pay its own costs of the argument in relation to the Notice to Produce.

Catchwords:
EVIDENCE – Notice to produce – application for leave to inspect – resisted on grounds of client legal privilege and lack of legitimate forensic purpose

EVIDENCE – whether judge should inspect documents produced to determine privilege claim – whether party claiming privilege has acted inconsistently with the production of the documents

EVIDENCE – leave granted to inspect costs agreements where plaintiff claimed against a tortfeasor for contribution towards reasonable defence costs – plaintiff had acted inconsistently in seeking to tender tax invoices but claiming privilege over costs agreements which founded the tax invoices
EVIDENCE – whether there was legitimate forensic purpose – issues to be discerned from pleadings – no such purpose in seeking inspection of confidential legal advices where defendant had not put reasonableness of settlement in dispute in Defence
Legislation Cited: Dust Diseases Tribunal Act 1989 (NSW)
Dust Diseases Tribunal Regulation 2013 (NSW)
Dust Diseases Tribunal Rules 2019 (NSW)
Evidence Act 1995 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Legal Profession Uniform Law (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ahmed v Ahmed [2013] NSWSC 1814
Bitumen and Oil Refineries (Australia) Limited v Commissioner for Government Transport [1955] HCA 1; (1954-1955) 92 CLR 200
Kimberley Mineral Holdings Limited (in liq) v McEwan [1980] 1 NSWLR 210
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
National Employers’ Mutual General Association Limited v Waind [1978] 1 NSWLR 372
Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100
SingTel Optus Pty Limited v Weston [2011] NSWSC 1083 at [21]; (2011) 81 NSWLR 526
Spencer Motors Pty Limited v LNC Industries Limited [1982] 2 NSWLR 921
Tavcol Pty Limited v Valbeet Pty Limited [2016] NSWSC 1002
Texts Cited: Report 102 of the Australian Law Reform Commission
Uniform Evidence Law, 14th Edition, Thomson Reuters
Category: Procedural and other rulings
Parties:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amaca Pty Limited v CSR Limited (Re Fisher) (No. 1)

Details

AGLC: Amaca Pty Limited v CSR Limited (Re Fisher) (No. 1) [2019] NSWDDT 9
Case: [2019] NSWDDT 9
Decision Date: 10 October 2019

CaseChat Overview and Summary

Amaca Pty Limited and CSR Limited were engaged in litigation concerning a dispute over the production of documents under a Notice to Produce. The plaintiff, Amaca, resisted the defendant's application for leave to inspect certain documents on the basis of client legal privilege and the absence of a legitimate forensic purpose. The case was heard in the Federal Court of Australia. The central issue was whether the defendant should be granted leave to inspect documents produced by the plaintiff, particularly those related to costs agreements. The plaintiff claimed that these documents were protected by legal professional privilege and that there was no legitimate forensic purpose for inspecting them.

The court considered whether the judge should inspect the documents to determine the validity of the privilege claim and whether the plaintiff had acted inconsistently with the production of the documents. It was noted that the plaintiff had sought to tender tax invoices but simultaneously claimed privilege over the costs agreements that formed the basis of those invoices. The court found that the plaintiff had acted inconsistently by seeking to rely on the tax invoices while claiming privilege over the underlying costs agreements. Consequently, the court granted leave to the defendant to inspect the documents produced under paragraph 2 of the Notice to Produce.

Furthermore, the court held that there was no legitimate forensic purpose in seeking inspection of confidential legal advices where the defendant had not disputed the reasonableness of the settlement in its Defence. The court also noted that further invoices would be produced by the plaintiff in response to paragraph 3 of the Notice to Produce, with no opposition from the defendant on inspecting those documents. The final orders included an adjournment of the hearing, costs orders for the plaintiff to pay the defendant's costs thrown away due to the adjournment, and an order for each party to pay its own costs of the argument regarding the Notice to Produce.

Orders

Orders of the court

(1) Adjourn the hearing of this matter to a date to be fixed.

(2) Order the plaintiff to pay the defendant’s costs thrown away by reason of the adjournment of the hearing set down for 4 October 2019.

(3) Refuse leave to the defendant to inspect the documents produced pursuant to paragraph 1 of the Notice to Produce dated 25 September 2019; the documents produced are to be returned to the plaintiff.

(4) Grant leave to the defendant to inspect the documents produced pursuant to paragraph 2 of the Notice to Produce dated 25 September 2019.

(5) Note that further invoices will be produced by the plaintiff in response to paragraph 3 of the Notice to Produce and that there will be no opposition to inspection of those further documents by the defendant.

(6) Order each party pay its own costs of the argument in relation to the Notice to Produce.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Amaca Pty Limited v CSR Limited (Re Fisher) (No. 1) [2019] NSWDDT 9
Hearing dates:	4 October 2019
Date of orders:	10 October 2019
Decision date:	10 October 2019
Before:	Russell SC DCJ
Decision:	(1) Adjourn the hearing of this matter to a date to be fixed. (2) Order the plaintiff to pay the defendant’s costs thrown away by reason of the adjournment of the hearing set down for 4 October 2019. (3) Refuse leave to the defendant to inspect the documents produced pursuant to paragraph 1 of the Notice to Produce dated 25 September 2019; the documents produced are to be returned to the plaintiff. (4) Grant leave to the defendant to inspect the documents produced pursuant to paragraph 2 of the Notice to Produce dated 25 September 2019. (5) Note that further invoices will be produced by the plaintiff in response to paragraph 3 of the Notice to Produce and that there will be no opposition to inspection of those further documents by the defendant. (6) Order each party pay its own costs of the argument in relation to the Notice to Produce.
Catchwords:	EVIDENCE – Notice to produce – application for leave to inspect – resisted on grounds of client legal privilege and lack of legitimate forensic purpose EVIDENCE – whether judge should inspect documents produced to determine privilege claim – whether party claiming privilege has acted inconsistently with the production of the documents EVIDENCE – leave granted to inspect costs agreements where plaintiff claimed against a tortfeasor for contribution towards reasonable defence costs – plaintiff had acted inconsistently in seeking to tender tax invoices but claiming privilege over costs agreements which founded the tax invoices EVIDENCE – whether there was legitimate forensic purpose – issues to be discerned from pleadings – no such purpose in seeking inspection of confidential legal advices where defendant had not put reasonableness of settlement in dispute in Defence
Legislation Cited:	Dust Diseases Tribunal Act 1989 (NSW) Dust Diseases Tribunal Regulation 2013 (NSW) Dust Diseases Tribunal Rules 2019 (NSW) Evidence Act 1995 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Legal Profession Uniform Law (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Ahmed v Ahmed [2013] NSWSC 1814 Bitumen and Oil Refineries (Australia) Limited v Commissioner for Government Transport [1955] HCA 1; (1954-1955) 92 CLR 200 Kimberley Mineral Holdings Limited (in liq) v McEwan [1980] 1 NSWLR 210 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 National Employers’ Mutual General Association Limited v Waind [1978] 1 NSWLR 372 Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100 SingTel Optus Pty Limited v Weston [2011] NSWSC 1083 at [21]; (2011) 81 NSWLR 526 Spencer Motors Pty Limited v LNC Industries Limited [1982] 2 NSWLR 921 Tavcol Pty Limited v Valbeet Pty Limited [2016] NSWSC 1002
Texts Cited:	Report 102 of the Australian Law Reform Commission Uniform Evidence Law, 14th Edition, Thomson Reuters
Category:	Procedural and other rulings
Parties: