FEDERAL COURT OF AUSTRALIA
Cygnett Pty Ltd v Souris [2020] FCA 1754
File number(s): VID 1275 of 2019 Judgment of: O’CALLAGHAN J Date of judgment: 7 December 2020 Catchwords: PRIVILEGE – whether common interest privilege available – whether legal professional privilege waived by disclosure of legal advice to co-respondent – application dismissed Legislation: Corporations Act 2001 (Cth) ss 79, 181, 182, 183, 183(1), 1317H(1) Cases cited: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49
Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601
Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027
Hamilton v New South Wales [2016] NSWSC 1213
Inlon Pty Ltd v Celli SpA [2017] NSWSC 569
Marshall v Prescott [2013] NSWCA 152
Media Ocean Ltd v Optus Mobile Pty Ltd (No 10) [2010] FCA 1348
Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275
Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2004] FCA 1249; 211 ALR 272
Rank Film Distributors Ltd v ENT Ltd (1994) 4 Tas R 281
Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234
Woodings v WA Glendinning & Associates Pty Ltd [2019] WASC 54
Division: General Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 37 Date of hearing: 24 November 2020 Counsel for the Applicant: Mr SJ Wood AM QC with Mr D Ternovski and Ms EL Murphy Solicitor for the Applicant: MinterEllison Counsel for the First Respondent: Mr T Donaghey Solicitor for the First Respondent: Norton Rose Fulbright Australia Counsel for the Second Respondent: Mr SJ Maiden QC with Mr A McRobert Solicitor for the Second Respondent: McCabe Curwood ORDERS
VID 1275 of 2019 BETWEEN: CYGNETT PTY LTD (ACN 106 996 114)
Applicant
AND: GEORGE SOURIS
First Respondent
TEMPO (AUST) PTY LTD (ACN 106 100 252)
Second Respondent
ORDER MADE BY:
O'CALLAGHAN J
DATE OF ORDER:
7 DECEMBER 2020
THE COURT ORDERS THAT:
1.The applicant’s application to inspect the second respondent’s discovered documents numbered TEM.001.003.0644, TEM.001.003.0704 and TEM.001.004.1844 is dismissed.
2.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
Introduction
This is a ruling in relation to a dispute about common interest privilege.
The applicant (Cygnett) is an Australian company that produces accessories for digital devices, such as power banks, chargers and cables for mobile phones and tablets.
The second respondent (Tempo) is a global supplier of consumer products, including consumer electronics products, such as televisions and home appliances. It supplies a range of digital accessory products sold under “private label” brands.
The first respondent (Mr Souris) is Cygnett’s former President…
Keep reading for free
Create a free CaseChat account to read Cygnett Pty Ltd v Souris and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] FCA 1754
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the common interest privilege was applicable to the documents in question and if the privilege had been waived by the disclosure of legal advice to Souris. The court also considered whether the inspection of the documents was necessary for the fair administration of justice and whether there were any other factors that should be taken into account.
The court dismissed the application to inspect the documents. It found that the common interest privilege was not available in this case, as there was no common interest between Cygnett and Tempo that would warrant the protection of the documents. The court also held that the disclosure of legal advice to Souris did not constitute a waiver of legal professional privilege. Furthermore, the court found that the inspection of the documents was not necessary for the fair administration of justice, as Cygnett had other means of obtaining the information it required.
The court reserved costs and did not make any orders for the entry of costs at that time. The decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The applicant’s application to inspect the second respondent’s discovered documents numbered TEM.001.003.0644, TEM.001.003.0704 and TEM.001.004.1844 is dismissed.
2. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Cygnett alleges (and Mr Souris denies) that Mr Souris breached, among other things: (i) ss 181, 182 and 183 of the Corporations Act2001 (Cth) (Corporations Act); (ii) his fiduciary duties owed to Cygnett; (iii) various of his duties of confidence owed to Cygnett; and (iv) his contractual duty to render faithful and loyal service to Cygnett. Cygnett also alleges (and Tempo denies) that Tempo:(a)knew that Mr Souris was until 6 December 2019 an officer of Cygnett and employed by Cygnett as its President of Sales;(b)from about early September 2019: (i) knew that some or all of the information that Mr Souris disclosed to Tempo was confidential to Cygnett; (ii) used that information in establishing the Tempo accessories division; (iii) knew that Mr Souris was providing the information to Tempo for the purpose of gaining an advantage for himself and for Tempo; and (iv) encouraged, induced or permitted Mr Souris to provide Cygnett’s confidential information to Tempo;(c)from about early September 2019: (i) knew that Mr Souris was assisting Tempo for the purpose of gaining an advantage for himself and for Tempo; and (ii) encouraged, induced or permitted Mr Souris to continue assisting Tempo;(d)engaged in that conduct without Cygnett’s permission for the purpose of establishing the Tempo accessories division and in order to gain an advantage for Tempo;(e)knew that Mr Souris was improperly using information that he had obtained because he was an employee and officer of Cygnett to gain an advantage for himself and for Tempo and intentionally assisted him to do so; (f)aided, abetted, counselled, procured, induced or was otherwise knowingly concerned in, and a party to, Mr Souris’s contravention of s 183(1) of the Corporations Act, and was involved in that contravention within the meaning of s 79 of the Corporations Act;(g)knew that Mr Souris was exercising his powers and discharging his duties as an officer of Cygnett not in good faith in the best interests of Cygnett and not for a proper purpose, and intentionally assisted Mr Souris to do so; (h)aided, abetted, counselled, procured, induced or was otherwise knowingly concerned in, and a party to, Mr Souris’s contravention of s 181(1) of the Corporations Act, and was involved in that contravention within the meaning of s 79 of the Corporations Act;(i)had actual knowledge: (i) that Mr Souris owed Cygnett certain fiduciary duties; (ii) that Mr Souris was breaching those fiduciary duties; and (iii) that Mr Souris’s breaches of his fiduciary duties amounted to a dishonest and fraudulent design;(j)induced or procured Mr Souris’s breaches of his fiduciary duties and knowingly assisted his dishonest and fraudulent design;(k)breached its (Tempo’s) obligation of confidentiality to Cygnett by using Cygnett’s confidential information in establishing the Tempo accessories division without Cygnett’s consent; and(l)committed the tort of inducing a breach of contract, namely Mr Souris’s contract of employment.