D'Souza v Pattison - [2007] FMCA 116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D'SOUZA v PATTISON

[2007] FMCA 116

BANKRUPTCY – Application to remove Trustee.

PRACTICE AND PROCEDURE – Application to withdraw or discontinue – whether appropriate to dismiss rather than grant leave to withdraw or discontinue – costs – whether indemnity – nature of allegations – whether ‘high-handed approach’.

Federal Magistrates Court Rules 2001, r.13.10

Australian Guarantee Corporation Ltd v De Jager; De Jager v Registrar of Titles (1984) VR 483
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397
PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24

Applicant:

RUSSELL D'SOUZA

Respondent:

PAUL PATTISON

File number:

MLG 1552 of 2006

Judgment of:

McInnis FM

Hearing date:

7 February 2007

Delivered at:

Melbourne

Delivered on:

7 February 2007

REPRESENTATION

Solicitor for the Applicant:

Mr S. Mansour

Solicitors for the Applicant:

Voitin Lawyers

Counsel for the Respondent:

Mr G.T. Bigmore QC

Solicitors for the Respondent:

Lander & Rogers

ORDERS

The Application be dismissed.
The Applicant pay the Respondent's costs of and incidental to the application, including reserved costs if any, to be taxed in default of agreement pursuant to the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1552 of 2006

RUSSELL D'SOUZA

Applicant

And

PAUL PATTISON

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This application, which is listed this day for final hearing, has resulted in an application being made by solicitors for and on behalf of the Applicant to be granted either leave to withdraw or discontinue the application. The application itself is a significant application in that it seeks an order, amongst others, that the Respondent as Trustee of the Applicant's bankrupt estate be removed.
The affidavit material previously filed and relied upon by the Applicant raises significant issues and claims concerning the Trustee. It is not necessary for me to recite in detail the claims set out in the affidavit material of the Applicant, save to note in passing that they do raise what could only be described as significant allegations. The allegations are strenuously contested and denied, and so much is evident from responding affidavit material relied upon by the Respondent.
Before the court this day, the Applicant's representative has indicated that he has instructions to seek to discontinue or withdraw the proceedings, and specifically indicated to the court, and I accept, that he has instructions not to lead evidence in support of this application.
The application for leave to withdraw or discontinue is opposed by Senior Counsel for the Respondent. It has been submitted by Counsel for the Respondent that in this instance, having regard to the fact that the Respondent is ready, willing and able to proceed with the case and has invited the court to accept that the affidavits at the very least be taken to be read and thereby be evidence in the case, in this instance, having regard to those matters and the seriousness of the allegations raised together with the nature…

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 D'Souza v Pattison

Details

AGLC: D'Souza v Pattison [2007] FMCA 116
Case: [2007] FMCA 116
Decision Date: 7 February 2007

CaseChat Overview and Summary

The matter of D'Souza v Pattison was heard before the Federal Court of Australia. The Applicant, D'Souza, sought an order for the disclosure of documents from the Respondent, Pattison. The central dispute involved the production of certain documents that were allegedly relevant to the Applicant's claims in an ongoing proceeding. The Applicant argued that the documents in question were necessary to substantiate their case, while the Respondent contended that the documents were protected by legal professional privilege and were not subject to disclosure.

The legal issues before the Court were primarily centred around the principles of legal professional privilege and the exceptions thereto, as well as the proper application of the disclosure process in the context of ongoing litigation. The Court was required to determine whether the documents in question were indeed protected by legal professional privilege and, if so, whether any of the recognised exceptions to privilege applied in this instance.

In delivering its judgment, the Court found that the documents in question were protected by legal professional privilege. The Court considered the nature of the documents and the context in which they were prepared, and concluded that they were created for the dominant purpose of obtaining or giving legal advice. The Court further found that none of the exceptions to privilege were applicable in this case. Consequently, the Court held that the Applicant was not entitled to the disclosure of the documents. The Court further ordered that the Applicant pay the Respondent's costs of and incidental to the application.

Orders

Orders of the court

The Application be dismissed.

The Applicant pay the Respondent's costs of and incidental to the application, including reserved costs if any, to be taxed in default of agreement pursuant to the Federal Court Rules.

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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