Brookfield v Yevad Products Pty Ltd

FEDERAL COURT OF AUSTRALIA

Brookfield v Yevad Products Pty Ltd [2006] FCA 1180

LEGAL PROFESSIONAL PRIVILEGE – draft expert report held by respondent’s former solicitors – whether privileged from production

IAN WALTER BROOKFIELD AND SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQUIDATION) v YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD) ACN 004 813 192

SAD 112 OF 1993

MANSFIELD J
31 AUGUST 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 112 OF 1993

BETWEEN:	IAN WALTER BROOKFIELD AND SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQUIDATION) Applicants
AND:	YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD) ACN 004 813 192 Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	31 AUGUST 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Order (5) sought on the applicants’ motion filed on 30 May 2006 is refused. 

2.The costs of the application for inspection of the disputed documents, in particular the report, should be the respondent’s costs in the cause other than the attendance on 15 August 2006.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 112 OF 1993

BETWEEN:	IAN WALTER BROOKFIELD AND SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQUIDATION) Applicants
AND:	YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD) ACN 004 813 192 Respondent

JUDGE:	MANSFIELD J
DATE:	31 AUGUST 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicants seek an order for inspection of a document discovered only in a List of Documents filed on 20 July 2006, in which it is described as ‘Draft Report prepared by Barry Pinder of Pump Technology Pty Ltd dated 7 August 1995’ (the report).  In that list of documents the respondent claims that the report is privileged from production on the ground of legal professional privilege.  In a subsequent list of documents filed on 15 August 2006, the respondent describes the report as being ‘Draft Report prepared by Barry Pinder of Pump Technology Pty Ltd undated but sent 7 August 1995, being a confidential report prepared on the instructions of and for the respondent’s solicitors solely for the purposes of the litigation’.

2. The existence of the report apparently came to light from a disbursement item in a bill of costs of the respondent.  Previously, it had not been specifically itemised in the several lists of documents filed by the respondent, although it was said to come within the generic description of documents covered by legal professional privilege.  By motion filed on 30 May 2006 the applicants sought, inter alia, orders for discovery and production of the report.  That motion apparently promoted in part the further list of documents on 20 July 2006.

3. The applicants now dispute the claim that the report is privileged from production.

4. The applicants accept that the report was commissioned by solicitors then acting for the respondent, and was commissioned by them for the purposes of this proceeding.  I do not…