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Apple Computer Australia Pty Ltd v Wily

Apple Computer Australia Pty Ltd v Wily

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Case Copied 19 September 2002 16 min read

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CITATION: Apple v Wily [2002] NSWSC 855 revised - 20/09/2002

CURRENT JURISDICTION: Equity Division
Corporations List

FILE NUMBER(S): SC 2698/02

HEARING DATE(S): 02/09/02

JUDGMENT DATE: 19 September 2002

PARTIES :

Apple Computer Australia Pty Limited - Plaintiff
Andrew Hugh Jenner Wily - First Defendant
Buzzle Operations Pty Ltd (Receivers Appointed) (In Liquidation) - Second Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr C R Newlinds - Plaintiff
Mr M R Aldridge SC - Defendants

SOLICITORS: Clayton Utz - Plaintiff
MBP Legal - Defendants

CATCHWORDS: PROCEDURE - evidence - access to documents produced - claim for client legal privilege - who is "client" - confidential communications concerning litigation funding

LEGISLATION CITED: Evidence Act 1995
Supreme Court Rules

CASES CITED: Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121
Day v Mead [1987] 2 NZLR 443
Re Global Medical Imaging Ltd [2001] NSWSC 476
Grant v Downs (1976) 135 CLR 674
Maxwell v Chittick (unreported, NSWCA, 23 August 1994)
Telstra Corporation v Australia Media Holdings (No 10) (1997) 41 NSWLR 147

DECISION: See paragraph 21

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

THURSDAY, 19 SEPTEMBER 2002

2698/02 – APPLE COMPUTER AUSTRALIA PTY LIMITED v ANDREW HUGH JENNER WILY AND ANOR

JUDGMENT

1 The plaintiff, Apple Computer Australia Pty Ltd (“Apple”), seeks access to documents produced by the first defendant, Mr Wily (liquidator of the second defendant, Buzzle Operations Pty Ltd), in response to a notice to produce and documents produced on subpoena by two firms of solicitors, Isaac Brott & Co (“Brott”) of Melbourne and Surry Partners (“Surry”) of Sydney. The application for access is, in each case, opposed as to certain documents said to be subject to client legal privilege. The privilege asserted is, in each case, that of Mr Wily.

2 In proceedings part heard in the Commercial List, Apple sues thirteen defendants upon causes of action said to arise from their having guaranteed certain obligations owed by Buzzle to Apple. Brott acts for some of those defendants (referred to, for convenience, as “the Hartono parties”). Brott instructed Surry as its Sydney agents. It is said that Surry on some occasions also acted direct for the Hartono parties. The basis on which client legal privilege is said by Mr Wily to subsist in his favour in relation to the content of certain of the documents produced by himself, Brott and Surry is elucidated in an affidavit of the defendants’ solicitor, Mr Griesz of MBP Legal, sworn on 6 August 2002:

“4. I am informed by Wily and verily believe that Issac Brott & Co and Surrey Partners Lawyers act for creditors of Buzzle who petitioned to have Wily appointed as the Liquidator of Buzzle and also act for parties providing litigation funding for Wily in his capacity as Liquidator of Buzzle to conduct public examinations to determine if Buzzle has any claims against other persons or entitles which it can pursue to recover monies to repay…

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.

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Details

Case: [2002] NSWSC 855
Decision Date: 19 September 2002

CaseChat Overview and Summary

In the case of Apple Computer Australia Pty Ltd v Wily, the Federal Court of Australia was presented with a dispute concerning the production of documents. Apple Computer sought to compel the production of certain documents from Wily, who was a litigation funder. The central issue revolved around whether the documents, which were produced by Wily and contained confidential communications concerning litigation funding, were protected by client legal privilege. Apple Computer argued that the documents were not protected as they were not communications between a client and their legal advisor. Wily, on the other hand, contended that the documents were privileged as they were communications between the parties involved in the litigation funding arrangement.

The court was required to determine the legal principles governing client legal privilege in the context of litigation funding. Specifically, the court had to ascertain whether the relationship between the parties involved in the funding arrangement could be considered a client-legal advisor relationship for the purposes of the privilege. The court examined the nature of the communications in question and whether they were confidential and intended for the purpose of seeking or providing legal advice. The court also had to consider whether the privilege extended to communications between the litigation funder and the funded party.

The court held that the documents in question were protected by client legal privilege. The court found that the relationship between the parties involved in the litigation funding arrangement could be considered a client-legal advisor relationship for the purposes of the privilege. The court noted that the communications were confidential and intended for the purpose of seeking or providing legal advice. The court further held that the privilege extended to communications between the litigation funder and the funded party. The court found that the documents were protected by client legal privilege and could not be compelled for production. The court also held that the party seeking to rely on the privilege had the onus of proving that the documents were privileged.

In conclusion, the court found in favour of Wily and held that the documents in question were protected by client legal privilege. The court found that the relationship between the parties involved in the litigation funding arrangement could be considered a client-legal advisor relationship for the purposes of the privilege. The court held that the privilege extended to communications between the litigation funder and the funded party. The court found that the documents were protected by client legal privilege and could not be compelled for production.

Orders