Cheung and Cheung - [2008] FamCA 624

FAMILY COURT OF AUSTRALIA

CHEUNG & CHEUNG

[2008] FamCA 624

FAMILY LAW – PROPERTY – Third Party privilege – Professional privilege – Costs

APPLICANT:

MR CHEUNG

1^ST RESPONDENT:

MS CHEUNG

2^ND RESPONDENTS:

C CHEUNG and
Y CHEUNG

3^RD RESPONDENT:

G PTY LTD

FILE NUMBER:

BRF

1286

2006

DATE DELIVERED:

11 June 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

The Honourable Justice Jordan

HEARING DATE:

11 June 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Cooper, Charles Cooper Lawyers

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Beacham

SOLICITOR FOR THE 1^ST RESPONDENT:

Jones Mitchell Lawyers

COUNSEL FOR THE 2^ND RESPONDENTS

Mr Williams

SOLICITOR FOR THE 2^ND RESPONDENTS:

Hopgood Ganim Lawyers

SOLICITOR FOR THE 3^RD RESPONDENT

Mr Black, Anthony Black Family
Law Services

Orders

That the Application in a Case filed 6 May 2008 be dismissed.
That the Applicant Husband pay the Respondent G Pty Ltd’s costs of and incidental to the Application in a Case filed 6 May 2008.
That the privileged documents produced by G Pty Ltd pursuant to a subpoena filed 14 March 2008 be returned to G Pty Ltd forthwith.

IT IS NOTED that publication of this judgment under the pseudonym CHEUNG & CHEUNG is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1286 of 2006

MR CHEUNG

Applicant

And

MS CHEUNG

1^st Respondent

And

C CHEUNG and Y CHEUNG

2^nd Respondents

And

G PTY LTD

3^rd Respondent

REASONS FOR JUDGMENT

EX TEMPORE

I have had the benefit of Mr Cooper's submissions. In addition, I have had the benefit of submissions made on behalf of G Pty Ltd (“G”)and earlier submissions made by Mr Jones, who was a solicitor appearing on a previous occasion.
I have now received some further submissions by counsel appearing on behalf of the wife. They seem to be largely a reflection of the types of sentiments expressed by Mr Jones in his earlier submission. I understand the logic of the dominant purpose argument advanced by Mr Cooper on behalf of his client. In the course of my reading, I have had particular regard to the observations of a number of other courts, in particular, the Court of Appeal in Victoria in Spotless Group Ltd and Others v Premier Building and Consulting Group Pty Ltd (2006) 16 VR 1; [2006] VSCA 201; the unreported decision of Carmody J in Brine & Brine [2007] FamCA 1444, and the decision of Santow J in Re Global Medical Imaging Management Ltd (in liq); Australian Mezzanine Investments Pty Ltd [2001] NSWSC 476.
I broadly endorse and follow the principles and sentiments set out in those cases. In particular, I note in the Spotless case that the majority of the Court held in a similar situation that, whilst there was no relevant community of interest between the litigant and the bank in that case such as to find a common…

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 Cheung and Cheung

Details

AGLC: Cheung and Cheung [2008] FamCA 624
Case: [2008] FamCA 624
Decision Date: 11 June 2008

CaseChat Overview and Summary

In the matter of *Cheung and Cheung*, Justice Jordan of the Supreme Court of New South Wales was required to determine an application concerning the production of documents. The applicant husband sought to access certain documents from the respondent, G Pty Ltd, which G Pty Ltd had resisted on grounds of privilege.

The central legal issue before the Court was whether G Pty Ltd had successfully established its claim to legal professional privilege over the documents it had produced pursuant to a subpoena. This involved an assessment of whether the documents were created for the dominant purpose of obtaining legal advice or for use in litigation.

Justice Jordan found that G Pty Ltd had not discharged its onus of proving that the dominant purpose for the creation of the documents was for obtaining legal advice or for use in litigation. Consequently, the Court dismissed the applicant husband's application to compel the production of these documents. The Court ordered that the applicant husband pay G Pty Ltd's costs of the application and that the documents produced under the subpoena be returned to G Pty Ltd.

Orders

Orders of the court

That the Application in a Case filed 6 May 2008 be dismissed.

That the Applicant Husband pay the Respondent G Pty Ltd’s costs of and incidental to the Application in a Case filed 6 May 2008.

That the privileged documents produced by G Pty Ltd pursuant to a subpoena filed 14 March 2008 be returned to G Pty Ltd forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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