Deppro Pty Ltd v Hannah

Case [2008] QSC 193

SUPREME COURT OF QUEENSLAND

CITATION:

Deppro Pty Ltd & Ors v Hannah & Ors [2008] QSC 193

PARTIES:

DEPPRO PTY LTD ACN 070 490 447 & ORS
(plaintiffs)
v
JAMES LACHLAN HANNAH & ORS
(defendants)

JAMES LACHLAN HANNAH & Catherine may Hannah as trustees for the Hannah family trust abn 49 176 472 466
(cross-claimants)
v
PAUL BENNION AS TRUSTEE FOR THE PAUL BENNION FAMILY TRUST ABN 35 773 727 059
(cross-defendants)

FILE NO/S:

6462 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

1 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2008

JUDGE:

Daubney J

ORDER:

1.   I declare that the Notice of Non Party Disclosure issued on 23 June 2008 to the respondent, Eagar & Buck Patent Attorneys, be taken to be effectual

2.   I order that the respondent produce to the applicants within seven days of today the documents over which the respondent has otherwise claimed privilege pursuant to s 200(2) of the Patents Act 1990 (Cth)

3.   I further order that the applicants pay the respondent’s costs of and incidental to this application (including any reserved costs)

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – Grounds for resisting production – Legal professional privilege – particular cases – where Notice of Non Party Disclosure given under Uniform Civil Procedure Rules 1999 (UCPR) r 242 – where respondents claim privilege under s 200(2) of Patents Act 1990 (Cth) – where applicants allege communications with the respondent were for the purpose of furthering an improper purpose – whether the documents over which the respondent claimed privilege should be disclosed

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – Documents in possession of person not a party – where documents sought pursuant to Notice of Non Party Disclosure under UCPR
r 242 – where Notice referred to numbered paragraphs and enclosed copies of the pleadings – whether notice complied with UCPR r 243

Patents Act 1990 (Cth)
Uniform Civil Procedure Rules 1999 (Qld)

AWB Limited v Cole (No 5) (2006) 155 FCR 30

Commissioner of Australian Federal Police v Propend

Finance Pty Ltd (1997) 188 CLR 501

Exequatur Pty Ltd v Advanced Components & Peripherals Pty Ltd [1999] VSC 547
Leighton Contractors Pty Ltd v Western Metal Resources Ltd [2000] QSC 27
Wundowie Foundry Pty Ltd v Milson (1993) 44 FCR 474

SOLICITORS:

Tucker & Cowen for the applicants
RJ Winter & Associates for the respondents

  1. This application concerns a Notice of Non Party Disclosure (‘the Notice’), under Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) rule 242, issued on 23 June 2008 and served by the cross-claimants  in the proceeding (‘the applicants’) on Eagar & Buck Patent Attorneys (‘the respondent’). 

  1. The Notice relevantly stated:

‘Between 7 and 14 days after the day of service of this notice on you, you must (for the purpose of the court determining this proceeding) produce the documents…

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Details
AGLC
Deppro Pty Ltd v Hannah [2008] QSC 193
Case
[2008] QSC 193
Decision Date

CaseChat Overview and Summary

Deppro Pty Ltd, along with several other applicants, sought disclosure of documents from Eagar & Buck Patent Attorneys, who were not parties to the proceedings. The applicants alleged that the documents were necessary for the purpose of the litigation, while the patent attorneys claimed privilege over some of the documents under the Patents Act 1990 (Cth). The dispute was heard and determined in the Federal Court of Australia.

The primary legal issue before the Court was whether the documents claimed to be privileged should be disclosed to the applicants. The Court had to consider whether the privilege claimed by the patent attorneys was valid and, if so, whether the applicants had shown an overriding public interest that should outweigh the privilege. The Court also had to determine whether the Notice of Non Party Disclosure issued to the patent attorneys complied with the relevant procedural rules.

The Court found that the Notice of Non Party Disclosure complied with the Uniform Civil Procedure Rules 1999 (UCPR) and was effectual. The Court further found that the privilege claimed by the patent attorneys was not absolute and could be overcome if the public interest in disclosure outweighed the need for confidentiality. The Court held that the applicants had shown sufficient cause to require the disclosure of the privileged documents, as they were necessary for the just disposal of the proceedings. The Court ordered the patent attorneys to produce the documents to the applicants and ordered the applicants to pay the costs of the application.

Orders

Orders of the court

1. I declare that the Notice of Non Party Disclosure issued on 23 June 2008 to the respondent, Eagar & Buck Patent Attorneys, be taken to be effectual

2. I order that the respondent produce to the applicants within seven days of today the documents over which the respondent has otherwise claimed privilege pursuant to s 200(2) of the Patents Act 1990 (Cth)

3. I further order that the applicants pay the respondent’s costs of and incidental to this application (including any reserved costs)

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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