CIP Group Pty Ltd v So (No 6) - [2024] FCA 1436

FEDERAL COURT OF AUSTRALIA
CIP Group Pty Ltd v So (No 6) [2024] FCA 1436

File number(s): QUD 93 of 2022

Judgment of: COLLIER ACJ

Date of judgment: 12 December 2024

Catchwords: EVIDENCE – legal professional privilege – application of s 198F(1) Corporations Act 2001 (Cth) where company documents claimed by former director – entitlement to claim privilege on behalf of company in liquidation – leave previously granted under s 236 Corporations Act for proceedings to be commenced

Legislation:
Corporate Law Economic Reform Program Bill 1998 (Cth), Explanatory Memorandum

Corporations Act 2001 (Cth) Part 2F.1A, ss 198F(1), 236

Cases cited:
Archer Capital 4A Pty Ltd (as trustee for Archer Capital Trust 4A) v Sage Group plc (No 3) (2013) 306 ALR 414; [2013] FCA 1160

Baker v Campbell [1983] 153 CLR 52

Carter v Managing Partner Northmore Hale Davy & Leake (1995) 183 CLR 121

CIP Group Pty Ltd v So [2022] FCA 1490

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545

Hammond v Quayeyeware Pty Ltd (2021) 389 ALR 248; [2021] FCA 293

Mann v Carnell (1999) 168 ALR 86

Re Dallhold Investments Pty Limited (1994) 53 FCR 339; [1994] FCA 738

Whittenbury v Vocation Limited (No 2) [2020] FCA 653

Worrell & anor (as trustees of estate of Fleming) v Woods (1999) 90 FCR 264

Advent Investors Pty Ltd v Goldhirsch [2001] VSC 59

Karam & Ors v ANZ Banking Group Limited & Anor [2000] NSWSC 596

Re CGB Labour Hire Pty Ltd (In Liq) [2023] NSWSC 17

Sharpe v Grobbel [2017] NSWSC 1065

South Australia v Barrett (1995) 64 SASR 73

The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34

Division: General Division

Registry: Queensland

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 38

Date of hearing: 4 September 2024

Counsel for the Applicants and Second to Thirteenth Respondents: Mr B Walker with Mr A Psaltis and Ms D Tay

Solicitor for the Applicants and Second to Thirteenth Respondents: Bartley Cohen

Counsel for the Fourteenth to Twentieth Respondents: Mr D O’Brien with Mr D Marckwald

Solicitor for the Fourteenth to Twentieth Respondents: Colin Biggers & Paisley

Counsel for the Twenty-Second and Twenty-Third Respondents: Mr T Pincus

Solicitor for the Twenty-Second and Twenty-Third Respondents: Hall & Wilcox

ORDERS

QUD 93 of 2022

IN THE MATTER OF GGPG PTY LTD ACN 609 675 505 (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION)

BETWEEN:
CIP GROUP PTY LTD ACN 610 483 577

First Applicant

CIP 1 PTY LTD ACN 611 408 710

Second Applicant

PYRMONT PORTFOLIO PTY LTD ACN 608 496 617

Third Applicant

AND:
SHAN NGAI SO

First Respondent

GGPG PTY LTD ACN 609 675 505 (RECEIVER AND MANAGER APPOINTED)

Second Respondent

PARK RIDGE 94 PTY LTD ACN 616 893 924 (RECEIVER AND MANAGER APPOINTED) (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

COLLIER ACJ

DATE OF ORDER:

12 DECEMBER 2024

THE COURT ORDERS THAT:
1.By 4.00pm on 17 December 2024,…

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: [2024] FCA 1436
Decision Date: 12 December 2024

CaseChat Overview and Summary

The case of CIP Group Pty Ltd v So (No 6) involved multiple parties, including CIP Group Pty Ltd and several other respondents, with disputes concerning legal professional privilege in relation to corporate documents claimed by a former director. The case was heard in the Federal Court of Australia. The central legal issue was whether certain documents were subject to legal professional privilege, and if so, who had the authority to claim such privilege on behalf of companies that were in liquidation.

The court had to determine whether the applicants, who were granted leave to bring proceedings on behalf of the companies, were entitled to claim privilege on behalf of the companies. The liquidator had not asserted an interest in the litigation or identified the power by which any privilege in respect of documents could be claimed. The court concluded that the applicants were entitled to maintain the claim of privilege over the four specific documents. However, regarding other documents, the court found that privilege had not been substantiated and ordered their production.

The Federal Court ruled that the applicants could claim privilege on behalf of the companies in liquidation, but only for the specific documents identified. For the remaining documents, the court found that the privilege claim was unsubstantiated and ordered their production. The court reserved costs regarding the issues of privilege.

The final orders included a directive for the applicants and the second to thirteenth respondents to produce certain documents by a specified date. The court also granted permission for the parties to uplift specific documents from those produced by Nicholsons Solicitors. Costs were reserved, and the entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. By 4.00pm on 17 December 2024, pursuant to r 20.32 of the Federal Court Rules 2011 (Cth), the applicants and the second to thirteenth respondents are to produce, by electronic means:

(a) to the first respondent, the documents:

(i) identified in Annexure A1 of the submissions of the applicants and the 2nd to 13th respondents dated 19 August 2024; and

(ii) identified in Annexure 1 to these orders;

(b) to all parties to the proceeding, the documents:

(i) identified in rows 1 to 6, 8 to 10, 12, 14 to 16, 20 to 38, 41, 44, 48 to 95, 97 to 104, and 106 to 112 of Annexure R.C to the reply submissions of the applicants and 2nd to 13th respondents dated 30 August 2024 (Reply Submissions);

(ii) identified in annexure R.D (all rows) to the Reply Submissions;

2. From the documents which have been produced to the court by Nicholsons Solicitors, and which are identified on page 7 of the affidavit of Matthew John Russell dated 11 June 2024:

(a) the parties to the proceeding have leave to uplift the dot point diary note of without prejudice meeting dated 25 November 2019 – prepared by Matthew Russell; and

(b) the first respondent has leave to uplift the two emails from Mr Whiteman to Mr Russell dated 5 June 2017.

3. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure 1

RCV.003.010.7511

RCV.003.033.6432

RCV.003.033.6434

RCV.001.004.8015

RCV.003.045.2738)

RCV.001.005.9032

RCV.001.005.9033

RCV.001.005.9034

RCV.001.005.9035

10.

RCV.001.005.9036

11.

RCV.001.005.9037

12.

RCV.003.034.1281

13.

RCV.003.034.1297

14.

RCV.003.034.1844

15.

RCV.003.034.1845

16.

RCV.003.034.1846

17.

RCV.003.034.1851

18.

RCV.003.035.8720

19.

RCV.003.035.8721

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the present case where the applicants were granted leave on 16 December 2022 (as modified on 10 March 2023) to bring proceedings in the name of the 2nd-13th respondents for the claims made, those companies are the “clients”, but decisions in respect of the litigation as concerns those companies are made by the applicants on behalf of those companies. This plainly would extend to a decision concerning whether privilege should be claimed in respect of corporate documents in defending or enforcing claims against or by the relevant companies. The liquidator has, I understand, not asserted an interest in the litigation, nor identified the power by which any privilege in respect of documents could be claimed. I am satisfied that the applicants are entitled to maintain the claim of privilege over the four documents identified in paragraph 36 of the So interests’ submissions. Those documents should not be produced.ISSUES 3, 4 AND 5 In respect of the documents the subject of Issues 3, 4 and 5, I rule as follows. In respect of Issue 3: I am not satisfied that privilege in respect of these documents has been substantiated. It is appropriate that these documents be produced. In respect of Issue 4: I am not satisfied that privilege in respect of these documents has been substantiated. It is appropriate that these documents be produced. In respect of Issue 5: I am not satisfied that privilege in respect of this document has been substantiated. It is appropriate that this document be produced. The parties made no submissions as to costs in respect of these issues. I consider that the appropriate order is that costs be reserved.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	QUD 93 of 2022
Judgment of:	COLLIER ACJ
Date of judgment:	12 December 2024
Catchwords:	EVIDENCE – legal professional privilege – application of s 198F(1) Corporations Act 2001 (Cth) where company documents claimed by former director – entitlement to claim privilege on behalf of company in liquidation – leave previously granted under s 236 Corporations Act for proceedings to be commenced
Legislation:	Corporate Law Economic Reform Program Bill 1998 (Cth), Explanatory Memorandum Corporations Act 2001 (Cth) Part 2F.1A, ss 198F(1), 236
Cases cited:	Archer Capital 4A Pty Ltd (as trustee for Archer Capital Trust 4A) v Sage Group plc (No 3) (2013) 306 ALR 414; [2013] FCA 1160 Baker v Campbell [1983] 153 CLR 52 Carter v Managing Partner Northmore Hale Davy & Leake (1995) 183 CLR 121 CIP Group Pty Ltd v So [2022] FCA 1490 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545 Hammond v Quayeyeware Pty Ltd (2021) 389 ALR 248; [2021] FCA 293 Mann v Carnell (1999) 168 ALR 86 Re Dallhold Investments Pty Limited (1994) 53 FCR 339; [1994] FCA 738 Whittenbury v Vocation Limited (No 2) [2020] FCA 653 Worrell & anor (as trustees of estate of Fleming) v Woods (1999) 90 FCR 264 Advent Investors Pty Ltd v Goldhirsch [2001] VSC 59 Karam & Ors v ANZ Banking Group Limited & Anor [2000] NSWSC 596 Re CGB Labour Hire Pty Ltd (In Liq) [2023] NSWSC 17 Sharpe v Grobbel [2017] NSWSC 1065 South Australia v Barrett (1995) 64 SASR 73 The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	38
Date of hearing:	4 September 2024
Counsel for the Applicants and Second to Thirteenth Respondents:	Mr B Walker with Mr A Psaltis and Ms D Tay
Solicitor for the Applicants and Second to Thirteenth Respondents:	Bartley Cohen
Counsel for the Fourteenth to Twentieth Respondents:	Mr D O’Brien with Mr D Marckwald
Solicitor for the Fourteenth to Twentieth Respondents:	Colin Biggers & Paisley
Counsel for the Twenty-Second and Twenty-Third Respondents:	Mr T Pincus
Solicitor for the Twenty-Second and Twenty-Third Respondents:	Hall & Wilcox

QUD 93 of 2022
IN THE MATTER OF GGPG PTY LTD ACN 609 675 505 (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION)
BETWEEN:	CIP GROUP PTY LTD ACN 610 483 577 First Applicant CIP 1 PTY LTD ACN 611 408 710 Second Applicant PYRMONT PORTFOLIO PTY LTD ACN 608 496 617 Third Applicant
AND:	SHAN NGAI SO First Respondent GGPG PTY LTD ACN 609 675 505 (RECEIVER AND MANAGER APPOINTED) Second Respondent PARK RIDGE 94 PTY LTD ACN 616 893 924 (RECEIVER AND MANAGER APPOINTED) (and others named in the Schedule) Third Respondent

ORDER MADE BY:	COLLIER ACJ
DATE OF ORDER:	12 DECEMBER 2024