Deep Investments Pty Ltd v Casey (No 1)

FEDERAL COURT OF AUSTRALIA

Deep Investments Pty Ltd v Casey (No 1) [2017] FCA 1643

File number:

NSD 2189 of 2016

Judge:

GLEESON J

Date of judgment:

12 May 2017

Date of publication of reasons:

2 August 2018

Catchwords:

PRACTICE AND PROCEDURE – notices to produce – whether notices in formal compliance with r 30.28 of Federal Court Rules 2011 – whether to require production of documents where legal professional privilege asserted – whether privilege waived

Legislation:

Federal Court Rules 2011 r 30.28

Cases cited:

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2012] FCA 707

DSE (Holdings) Pty Ltd v Intertan Inc & Anor [2003] FCA 384; (2003) 127 FCR 499

Ferella & Another v Official Trustee in Bankruptcy [2010] FCA 766; (2010) 188 FCR 68

Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Date of hearing:

11 May 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Category:

Catchwords

Number of paragraphs:

35

Counsel for the Applicant:

Mr P Dunning QC with Dr W Wild

Solicitor for the Applicant:

K2 Law

Counsel for the First, Second and Third Respondents:

Mr S Donaldson SC with Mr M Friedgut

Solicitor for the First, Second and Third Respondents:

MinterEllison

Counsel for the Fourth Respondent:

Mr AC Harding

Solicitor for the Fourth Respondent:

K&L Gates

Counsel for the Fifth, Sixth and Seventh Respondents:

Mr A McGrath SC with Mr SE Gray

Solicitor for the Fifth, Sixth and Seventh Respondents:

Moray & Agnew

ORDERS

NSD 2189 of 2016

BETWEEN:

DEEP INVESTMENTS PTY LTD (ACN 003 339 319)

Applicant

AND:

KEVIN CASEY

First Respondent

PAUL CLARKE

Second Respondent

CBC PARTNERS PTY LTD (ACN 104 815 483) (and others named in the Schedule)

Third Respondent

JUDGE:	GLEESON J
DATE OF ORDER:	12 MAY 2017

THE COURT ORDERS THAT:

1.Compliance with r 30.28(3) of the Federal Court Rules 2011 be dispensed with in relation to the notice to produce dated 18 April 2017 issued on behalf of the first to third respondents.

2.To the extent necessary, compliance with r 30.28(3) of the Federal Court Rules 2011 be dispensed with in relation to the notice to produce dated 21 April 2017 issued by the fourth respondent.

3.Leave be granted to the first to fourth respondents to issue a notice to produce to the applicant returnable at 9.00 am on 15 May 2017 requiring the production of documents evidencing the receipt of the letter dated 5 April 2012 from Wilson HTM to the Australian Securities and Investments Commission or the form FS80 referred to in that letter prior to 29 January 2016.

4.To the extent necessary, compliance with r 30.28(3) of the Federal Court Rules 2011 be dispensed with in the relation to the notice to produce dated 12 April…