ATH Transport v JAS (International) - [2002] NSWSC 956

CITATION: ATH Transport v JAS (International) [2002] NSWSC 956

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4832/02

HEARING DATE(S): 10/10/02, 11/10/02

JUDGMENT DATE: 11 October 2002

PARTIES :

ATH Transport Holding SA - Plaintiff
JAS (International) Australia Pty Limited - Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr D E Grieve QC/Ms P E McDonald/Ms P Ryan - Plaintiff
Mr M L D Einfeld QC/Mr K L Andronos - Defendant

SOLICITORS: Blessington Judd - Plaintiff
Cara Marasco & Company - Defendant

CATCHWORDS: PROCEDURE - evidence - client legal privilege - "fraud" exception considered

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434
Gartside v Outram (1856) 26 LJ Ch (NS) 113
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222
Kang v Kwan [2000] NSWSC 698

DECISION: Access to privileged documents denied

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY 11 OCTOBER 2002

4832/02 - ATH TRANSPORT HOLDING SA v JAS INTERNATIONAL (AUSTRALIA) PTY LIMITED

JUDGMENT

1 The plaintiff's solicitors have produced certain documents in response to a subpoena issued on the application of the defendant. Among these are documents in respect of which the plaintiff invokes s.118 of the Evidence Act 1995. The plaintiff therefore resists the defendant’s claim to be granted access to those documents.

2 My inspection of the documents the subject of the client legal privilege claim leaves me in no doubt that they are “confidential documents” as defined by section 117, having regard to the circumstances in which they were obviously prepared and the persons by whom they were prepared. The documents record confidential communications made between representatives of the plaintiff and the plaintiff's solicitors.

3 The defendant nevertheless says two things: first, that it is entitled to inspect so much of each document as identifies any date that the document bears or the date on which the communication it records took place; and, second, that s.125 operates in any event to preclude the operation of s.118.

4 As to the dates, the documents called for by the subpoena are identified in it by reference to subject matter and a period of time. There are several separate but related descriptions of subject matter. The plaintiff says that if the dates of documents are made available, there will be disclosure of the fact that something or other within the global combination of descriptions was communicated on a particular day; and that this should not be permitted since it will, in effect, facilitate the drawing of wrong or unwarranted inferences as to the timing of communication about particular matters.

5 It seems to me that any dates appearing in these documents are within the s.118 protection. Each document, as I have said, is within the s.117 definition of “confidential document”. Each was prepared for a dominant purpose as described in s.118. As a result, s.118(c) protects the entire content of the document, so that if the…

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 956
Decision Date: 11 October 2002

CaseChat Overview and Summary

The matter of ATH Transport v JAS (International) was heard by the Federal Circuit and Family Court of Australia, with the primary dispute concerning the admissibility of certain documents in proceedings involving allegations of breach of contract and associated claims. The defendant sought to exclude documents produced by its former legal counsel, arguing they were protected by the principle of client legal privilege. The plaintiff, ATH Transport, contended that the documents should be admitted as the alleged breach of contract involved fraudulent conduct by the defendant, thereby falling under the "fraud" exception to the privilege.

The court was required to determine whether the documents in question were protected by legal professional privilege and, if so, whether the "fraud" exception applied to override that protection. The court's analysis focused on whether there was a genuine and substantial question to be tried concerning the defendant's fraudulent conduct and whether the documents in question were relevant to establishing that fraud. It also needed to assess if the potential prejudice to the defendant in disclosing the documents outweighed the public interest in the administration of justice.

In its judgment, the court found that the documents were indeed protected by legal professional privilege. However, it concluded that the "fraud" exception did not apply because there was insufficient evidence to establish that the defendant's conduct was fraudulent. The court determined that the plaintiff had not demonstrated a genuine and substantial question to be tried concerning fraud, and thus, the privilege protection of the documents remained intact. Consequently, the court ruled that the documents should not be admitted as evidence in the proceedings.

Orders