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Carey v Korda

Carey v Korda

Case [2012] WASCA 228 (S) 6 February 2013

Jurisdiction

Standing

Legal Professional Privilege

Abuse of Process

Discovery & Disclosure

Remitter

Civil Litigation & Procedure

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CAREY -v- KORDA [2012] WASCA 228 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 228 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:132/2011	Heard:	8 AUGUST 2012 & ON THE PAPERS
Coram:	MARTIN CJ NEWNES JA MURPHY JA	Delivered:	6/02/13
No of pages:	15	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed in part
Category:	B
PDF Version

Parties:	NORMAN PHILLIP CAREY QUARTZ NOMINEES PTY LTD MARK ANTHONY KORDA As Receiver and Manager of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed (In liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (In liq) and Westpoint Management Ltd (Receivers and Managers Appointed) (In liq) DAVID JOHN WINTERBOTTOM As Receiver and Manager of Huntingdale Village Pty Ltd (Receivers and Managers Appointed), Silkchime Pty Ltd (Receivers and Managers Appointed), Vannin Pty Ltd (Receivers and Managers Appointed), Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed), Paragon Apartments Ltd (Receivers and Managers Appointed), Westpoint Corporation Pty Ltd (Receivers and Managers Appointed) (In liq), Bayview Port Melbourne Ltd (Receivers and Managers Appointed) (In liq) and Westpoint Management Ltd (Receivers and Managers Appointed) (In liq) PERPETUAL NOMINEES LTD
Catchwords:	Practice and procedure Legal professional privilege Claim for privilege not properly made Remitter Whether party claiming privilege should have opportunity to adduce further evidence Costs Special costs orders Turns on own facts
Legislation:	Supreme Court Act 1935 (WA), s 37, s 59 Legal Profession Act 2008 (WA), s 280
Case References:	Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S) Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333 Barnes v Commissioner of Taxation [2007] FCAFC 88 Carey v Korda [2010] WASC 362 Carey v Korda [2012] WASCA 228 Carey v Korda [No 2] [2011] WASC 220 Carter v The Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121 Devereaux-Warnes v Hall [2006] WASCA 268 McLennan v McCallum [2010] WASCA 45 Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd (Unreported, WASCA, Library No 970604, 13 November 1997) Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158 Rayney v AW [2009] WASCA 203 Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79(S) The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Town of Port Hedland v Hodder [No 2] [2012] WASCA 212(S) West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72 Westgate Finance v May [2012] NSWSC 806 Wookey v Radio 6PR Perth Pty Ltd [2012] WASC 132

JURISDICTION : SUPREME COURT OF WESTERN…

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 Carey v Korda

Details

AGLC: Carey v Korda [2012] WASCA 228 (S)
Case: [2012] WASCA 228 (S)
Decision Date

CaseChat Overview and Summary

The case of Carey v Korda [2012] WASCA 228 (S) involved an appeal against a decision by Edelman J in which he upheld a claim for legal professional privilege in respect of certain documents. The Court of Appeal found that the claim for privilege was not properly made, and set aside the orders made by the primary judge. The court considered whether to remit the matter to the primary judge or to order production of the documents, and whether the first respondents should be allowed to adduce further evidence. The court concluded that it was inappropriate to order the production of the documents and that the first respondents should be given the opportunity to adduce further evidence. The court also considered the costs, and ordered that the first respondents pay 75% of the appellants' costs of and incidental to the proceedings. The orders of the court were that leave to appeal be granted, the appeal be allowed in part, the orders of the primary judge be set aside, and the matter be remitted for further evidence to be adduced.

Orders