Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 4)

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FEDERAL COURT OF AUSTRALIA

Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 4) [2019] FCA 453  

File number: VID 1157 of 2017
Judge: O’CALLAGHAN J
Date of judgment: 2 April 2019
Legislation: Federal Court of Australia Act 1976 (Cth)
Cases cited:

Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322

Specsavers Pty Ltd v Optical Superstore Pty Ltd (No 4) [2012] FCA 652

Date of hearing: On the papers
Date of last submissions: 18 March 2019
Registry: Victoria
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: No catchwords
Number of paragraphs: 27
Counsel for the Applicant/First Cross-Defendant: Mr M W Wise QC with Ms N J Hickey
Solicitor for the Applicants/First Cross-Defendant:

K & L Gates

Counsel for the First and Sixth Respondents/Cross-Claimant: Dr S B McNicol QC with Mr A N McRobert
Solicitor for the First and Sixth Respondents/Cross-Claimant:

Norton Rose Fulbright

Counsel for the Second and Eighth Respondents: Mr M S Osborne QC with Mr T P Warner
Solicitor for the Second and Eighth Respondents:

Mills Oakley

Counsel for the Seventh Respondent: Dr W A Rothnie
Solicitor for the Seventh Respondent:

Hall and Wilcox

ORDERS

VID 1157 of 2017
BETWEEN:

DIRECTED ELECTRONICS OE PTY LTD

Applicant

AND:

OE SOLUTIONS PTY LTD

First Respondent

HANHWA AUS PTY LTD

Second Respondent

HAN HWA HIGHTECH AUSTRALIA PTY LTD (and others named in the Schedule)

Third Respondent

AND BETWEEN:

JOHNNY MENESES

Cross-Claimant

AND:

DIRECTED ELECTRONICS OE PTY LTD (and others named in the Schedule)

First Cross-Defendant

JUDGE:

O’CALLAGHAN J

DATE OF ORDER:

2 APRIL 2019

THE COURT ORDERS THAT:

1.The first, second, sixth and eighth respondents pay the costs of the applicant in respect of the applications.

2.The applicant and the seventh respondent bear their own costs of the application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’CALLAGHAN J:

  1. On 6 March 2019, I delivered reasons and made orders to refuse privilege claims by the second and eighth respondents (the Lee Parties, or Hanhwa Parties), and the first and sixth respondents (the Meneses Parties) in respect of certain documents of which the applicant (Directed) sought inspection: Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 3) [2019] FCA 285 (the privilege decision). These reasons should be read with the privilege decision.

  2. The parties were then invited to make submissions as to costs. All parties have filed written submissions, and I will deal with the matter on the papers.

    The findings in the privilege decision

  3. The Meneses Parties resisted inspection by Directed of 111 documents which they claimed were subject to the privilege against self-incrimination and 3031 documents which they claimed were subject to the privilege against exposure to civil penalties. Mr Meneses was the sole director and employee of the first…

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Details
Case
[2019] FCA 453
Decision Date

CaseChat Overview and Summary

In the case of Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 4), the parties were engaged in a legal dispute involving the inspection of documents and the application of legal privilege. The dispute was heard and determined by the Federal Court of Australia. The central issue before the court was whether the respondents could successfully claim legal privilege over certain documents that were sought to be inspected by Directed Electronics OE Pty Ltd.

The legal issues the court was required to decide included whether the party claiming privilege had demonstrated that each document was properly a document of the relevant individual and not a corporation, whether a single director of a company could claim privilege against self-incrimination in respect of company documents, and whether different legal principles applied to documents seized during a search and those discovered independently. Additionally, the court had to determine whether the documents had a real and appreciable tendency to incriminate or expose the respondents to civil penalties.

The court reasoned that the Meneses Parties and the Lee Parties failed to demonstrate that the relevant documents were properly their individual documents and not those of the corporations. Therefore, their claims of privilege were unsuccessful. The court also held that a single director of a company could not claim privilege against self-incrimination for company documents, rejecting any exception to section 187 of the Evidence Act 1995 (Cth). Regarding Mr Mills, the court granted him a certificate under section 128A(7) of the Evidence Act, allowing him to resist the inspection of his documents. Consequently, Mr Mills and Directed were ordered to bear their own costs in relation to his claim for privilege.

In conclusion, the court ordered that the first, second, sixth and eighth respondents pay the costs of Directed Electronics OE Pty Ltd in respect of the applications, while Directed and Mr Mills were to bear their own costs of the application concerning Mr Mills' claim for privilege. This decision underscores the importance of demonstrating the proper ownership of documents and the limitations on claiming privilege for corporate documents.

Orders

Orders of the court

1. The first, second, sixth and eighth respondents pay the costs of the applicant in respect of the applications.

2. The applicant and the seventh respondent bear their own costs of the application.

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

The seventh respondent, Mr Mills, resisted inspection by Directed of documents exhibited to his confidential affidavits on the basis that the documents were subject to privilege, but ultimately he did not resist production provided that the court caused a certificate to be granted to him under s 128A(7) of the Evidence Act 1995 (Cth) (the Evidence Act). I considered the following questions (and gave the following answers):(1)Whether the party claiming privilege had demonstrated that each of the relevant documents was properly a document of the relevant individual, and not a corporation. Answer: (a)In the case of the Meneses’ Parties: No; (b)in the case of the Lee Parties: No; (c)in the case of Mr Mills: The question did not arise. (2)Whether a person who is a single director of a company with no employees could claim privilege against self-incrimination in respect of documents belonging to that company, notwithstanding s 187 of the Evidence Act. Answer: No, no such exception to s 187 should be recognised. (3)Whether the evidence enabled the court to determine which documents were seized and which were “independently” discovered. Answer: Yes. (4)Whether different legal principles applied to those two categories of documents. Answer: Unnecessary to decide. (5)In respect of documents seized during the search: (a)whether Mr Mills could rely on the provisions of s 128A of the Evidence Act; and (b)whether, at common law, the Lee Parties and the Meneses Parties, having elected not to file an affidavit under the provisions of s128A of the Evidence Act, could rely upon the Privilege at common law, and if so, what principles applied. Answer: As to (a): Mr Mills was granted a certificate under s 128A(7) of the Evidence Act. As to (b): Unnecessary to decide. (6)Whether each of the relevant documents had a real and appreciable tendency to incriminate Messrs Meneses, Mills or Lee for a criminal offence or expose them to a civil penalty. Answer: Yes.Costs principles The awarding of costs is, of course, at the discretion of the court and may be awarded with respect to different parts of the proceeding or in specified proportions: s 43 of the Federal Court of Australia Act 1976 (Cth). Usually, in the exercise of this discretion, it is ordered that the costs should follow the event: see Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [241] and Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7 at [3]. The court must use its discretion “in the way that best promotes the overarching purpose of the civil procedure provisions of the FCA Act and Rules”: see Specsavers Pty Ltd v Optical Superstore Pty Ltd (No 4) [2012] FCA 652 at [25]. In some cases, the “event” may be contestable, especially where separate issues have fallen in different ways: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [241]. Parties’ submissions Meneses Parties

Decision

Reasons for decision

The parties were then invited to make submissions as to costs. All parties have filed written submissions, and I will deal with the matter on the papers.The findings in the privilege decision The Meneses Parties resisted inspection by Directed of 111 documents which they claimed were subject to the privilege against self-incrimination and 3031 documents which they claimed were subject to the privilege against exposure to civil penalties. Mr Meneses was the sole director and employee of the first respondent. The Lee Parties resisted inspection of certain documents by Directed on the basis that 39 documents were subject to the privilege against self-incrimination. They opposed Directed’s application substantially for the same reasons as the Meneses Parties. The seventh respondent, Mr Mills, resisted inspection by Directed of documents exhibited to his confidential affidavits on the basis that the documents were subject to privilege, but ultimately he did not resist production provided that the court caused a certificate to be granted to him under s 128A(7) of the Evidence Act 1995 (Cth) (the Evidence Act). I considered the following questions (and gave the following answers):(1)Whether the party claiming privilege had demonstrated that each of the relevant documents was properly a document of the relevant individual, and not a corporation. Answer: (a)In the case of the Meneses’ Parties: No; (b)in the case of the Lee Parties: No; (c)in the case of Mr Mills: The question did not arise. (2)Whether a person who is a single director of a company with no employees could claim privilege against self-incrimination in respect of documents belonging to that company, notwithstanding s 187 of the Evidence Act. Answer: No, no such exception to s 187 should be recognised. (3)Whether the evidence enabled the court to determine which documents were seized and which were “independently” discovered. Answer: Yes. (4)Whether different legal principles applied to those two categories of documents. Answer: Unnecessary to decide. (5)In respect of documents seized during the search: (a)whether Mr Mills could rely on the provisions of s 128A of the Evidence Act; and (b)whether, at common law, the Lee Parties and the Meneses Parties, having elected not to file an affidavit under the provisions of s128A of the Evidence Act, could rely upon the Privilege at common law, and if so, what principles applied. Answer: As to (a): Mr Mills was granted a certificate under s 128A(7) of the Evidence Act. As to (b): Unnecessary to decide. (6)Whether each of the relevant documents had a real and appreciable tendency to incriminate Messrs Meneses, Mills or Lee for a criminal offence or expose them to a civil penalty. Answer: Yes.Costs principles The awarding of costs is, of course, at the discretion of the court and may be awarded with respect to different parts of the proceeding or in specified proportions: s 43 of the Federal Court of Australia Act 1976 (Cth). Usually, in the exercise of this discretion, it is ordered that the costs should follow the event: see Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [241] and Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7 at [3]. The court must use its discretion “in the way that best promotes the overarching purpose of the civil procedure provisions of the FCA Act and Rules”: see Specsavers Pty Ltd v Optical Superstore Pty Ltd (No 4) [2012] FCA 652 at [25]. In some cases, the “event” may be contestable, especially where separate issues have fallen in different ways: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [241]. Parties’ submissions Meneses Parties

Ratio Decidendi

Legal Principle Established

Directed submits that Mr Mills’ attempt to prevent Directed from inspecting relevant documents failed, and that he should consequently pay Directed’s costs. Consideration In my view, as to the Meneses and Lee Parties, Directed should have its costs of the applications. The onus was on the parties claiming privilege to make good their claims, and for the reasons I gave, they did not do so because they did not satisfy me that they had demonstrated that each of the relevant documents was a document of the relevant individual. It was always necessary for them to have done so. And, in circumstances where Directed necessarily could never have known whether they had done that or not, the fact that Directed may have been seen to have given more emphasis to other submissions from time to time during the (protracted) hearing, it seems to me, is beside the point. In my view, Directed has been wholly successful in respect of the Meneses Parties, and there are no special circumstances to justify deviating from the usual rule. For the same reason, I do not accept the Lee Parties’ submission that Directed’s costs should be costs in the cause between it and the Lee Parties with respect to the secret commission claims or that they be discounted so that Directed recover 50% of their costs of the privilege decision whatever the outcome of that trial. The fact of the matter is that, on the view I took of it, the privilege claims failed. The position as to Mr Mills is different. There is merit in the respective contentions that Mr Mills and Directed make. On the one hand, it is the case that Mr Mills sought to rely on the common law and adopted submissions made by the other respondents in that regard. And it is true that it was only on the fourth day that counsel for Mr Mills made it clear that his client in fact had no objection to Directed inspecting the documents, provided that he was given a certificate under s 128A. On the other hand, Mr Mills was successful in obtaining the orders he sought under s 128A. On balance, in my view, the fairest result in those circumstances is that Mr Mills and Directed should bear their own costs in relation to Mr Mills’ claim for privilege.