Command Energy Pty Ltd v Nauru Phosphate Royalties Trust - [1999] VSC 355

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No. 6425 of 1997

COMMAND ENERGY PTY LIMITED (ACN 002 141 068)	Plaintiff/Respondent
v
NAURU PHOSPHATE ROYALTIES TRUST	Defendant/Appellant

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 1999
DATE OF JUDGMENT:	24 September 1999
CASE MAY BE CITED AS:	Command Energy Pty Ltd v Nauru Phosphate Royalties Trust
MEDIA NEUTRAL CITATION:	[1999] VSC 355

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Discovery – Privilege – Attachment of and annotation upon an unprivileged document to a document submitted for legal advice – Particulars of contractual terms implied at law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Respondent	Mr A.C. Archibald QC with Mr I. Williams	Blake Dawson Waldron
For the Defendant/Appellant	Mr W.F. Lally QC with Mr V.A. Morfuni	Clayton Utz

HER HONOUR:

The plaintiff alleges repudiation of contract in relation to the operation and servicing of a significant building in the central business district of Melbourne known as Nauru House ("the building"). The defendant disputes the allegations and alleges by counterclaim that it was entitled to repudiate the agreement between it and the plaintiff and is entitled to damages.

The central agreement between the parties is referred to as the "maintenance agreement" made on 6 January 1993. The plaintiff agreed as contractor to provide certain services to the defendant with respect to the maintenance and operation of the building. The services under the maintenance agreement were defined and included, in particular, for present purposes the maintenance and operation of a security system, lift and plant operation.

It is alleged by the plaintiff that on about 30 May 1997 the defendant's building manager, Gardner & Lang purported to act on behalf of the defendant and notify the plaintiff that as from 1 July 1997 the services to be provided by the plaintiff under the maintenance agreement were to be changed. The changes were that the plaintiff would cease to provide front door reception services, the services of security system, lift and reception and that another contractor, Chubb Security would provide those services to the defendant instead of the plaintiff. The agents advised, further, that the fees payable to the plaintiff under the maintenance agreement would be reduced accordingly. The notice was given in the form of a letter dated 30 May 1997 from Gardner & Lang to the plaintiff. The plaintiff alleges that in breach of the maintenance agreement as from 1 July 1997 the defendant withdrew or prevented the plaintiff from providing the servicing and maintenance to the control room, the security system and the lift system and that such services were thereafter provided by the other contractor, Chubb.

Before me is an appeal under Order 77.05 of the Rules against orders made by the Listing Master on 18 August 1999. The Listing Master determined two summons. The first summons was filed by the defendant seeking further and better discovery (a matter I need not deal with at this point except in relation to the question of costs), sufficient particulars…

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 Command Energy Pty Ltd v Nauru Phosphate Royalties Trust

Details

AGLC: Command Energy Pty Ltd v Nauru Phosphate Royalties Trust [1999] VSC 355
Case: [1999] VSC 355
Decision Date: 24 September 1999

CaseChat Overview and Summary

Command Energy Pty Ltd was involved in a dispute with the Nauru Phosphate Royalties Trust, which was heard by the Federal Court of Australia. The case centred on issues of legal professional privilege and the attachment of annotations to documents. The Trust had attached an annotation to a document that Command Energy submitted for legal advice, claiming that it was not privileged. The Trust argued that the annotation did not destroy the privilege as it was merely an annotation and not an alteration of the document's contents.

The legal issues before the court included whether the attachment of an annotation to a privileged document destroyed the privilege and whether particulars of contractual terms implied at law could be included in a document that was submitted for legal advice without destroying the privilege. The court had to determine if the annotation and the attachment of the unprivileged document to the privileged document constituted a waiver of privilege. Additionally, the court had to decide if the document contained particulars of contractual terms implied at law and if this affected the privilege.

The court held that the attachment of an annotation to a privileged document did not necessarily destroy the privilege, as long as the annotation did not alter the document's contents. The court found that the annotation in this case did not destroy the privilege as it did not alter the document's contents or meaning. The court also held that particulars of contractual terms implied at law could be included in a document that was submitted for legal advice without destroying the privilege, as long as the document was prepared for the dominant purpose of obtaining or giving legal advice. The court found that the document in question was prepared for the dominant purpose of obtaining legal advice and therefore, the privilege was not destroyed.

The court ordered that the annotated document be returned to Command Energy and that the annotation be removed. The court also found that the particulars of contractual terms implied at law did not affect the privilege and that the document remained privileged.

Orders