Domain Paper (Australia) Pty Ltd v Galloway

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FEDERAL COURT OF AUSTRALIA

Domain Paper (Australia) Pty Ltd v Galloway [2015] FCA 406

Citation: Domain Paper (Australia) Pty Ltd v Galloway [2015] FCA 406
Parties: DOMAIN PAPER (AUSTRALIA) PTY LTD (ACN 115 788 308) v JOHN FINDLAY GALLOWAY, ELIZABETH WATSON GALLOWAY, ANGUS GRAPHICS PTY LTD (ACN 141 731 599), MARK IAN GALLOWAY, KIM ELIZABETH PHIPPS and MADDOCKS (A FIRM)
File number: VID 648 of 2012
Judge: BEACH J
Date of judgment: 28 April 2015
Catchwords: EVIDENCE – legal professional privilege – documents from file of law firm formerly acting for respondents – advice privilege established – litigation privilege established –  whether privilege waived – communications with a third party – no waiver – inspection denied – application dismissed
Cases cited: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796
Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936
Date of hearing: 27 April 2015
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 19
Counsel for the Applicant: Mr L E P Magowan
Solicitors for the Applicant: Advisory Legal Solutions Pty Ltd
Counsel for the First and Second Respondents: Mr T Lynch SC with Mr S Ahmed (via Video Link from Sydney)
Solicitors for the First and Second Respondents: Buttar, Caldwell & Co

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 648 of 2012
BETWEEN:

DOMAIN PAPER (AUSTRALIA) PTY LTD (ACN 115 788 308)
Applicant
AND:

JOHN FINDLAY GALLOWAY
First Respondent

ELIZABETH WATSON GALLOWAY
Second Respondent

ANGUS GRAPHICS PTY LTD (ACN 141 731 599)
Third Respondent

MARK IAN GALLOWAY
Fourth Respondent

KIM ELIZABETH PHIPPS
Fifth Respondent

MADDOCKS (A FIRM)
Sixth Respondent

JUDGE:

BEACH J

DATE OF ORDER:

28 APRIL 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s application for production for inspection of 69 identified documents from the file of Maddocks lawyers over which the first and second respondents claim legal professional privilege is refused.

2.All parties’ costs of the application and hearing before me concerning the matter referred to in order 1 be their costs in the cause.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 648 of 2012
BETWEEN:

DOMAIN PAPER (AUSTRALIA) PTY LTD (ACN 115 788 308)
Applicant
AND:

JOHN FINDLAY GALLOWAY
First Respondent

ELIZABETH WATSON GALLOWAY
Second Respondent

ANGUS GRAPHICS PTY LTD (ACN 141 731 599)
Third Respondent

MARK IAN GALLOWAY
Fourth Respondent

KIM ELIZABETH PHIPPS
Fifth Respondent

MADDOCKS (A FIRM)
Sixth Respondent

JUDGE:

BEACH J

DATE:

28 APRIL 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The interlocutory application before me, which I will treat in substance as an application by the applicant for the production for inspection of various documents contained in the file of Maddocks, concerns a challenge to a claim for legal professional privilege.  The privilege claim has been made by the first and second respondents in relation to 69 documents which have been extracted from the…

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Details
Case
[2015] FCA 406
Decision Date

CaseChat Overview and Summary

Domain Paper (Australia) Pty Ltd initiated proceedings against Galloway and two other respondents, seeking production for inspection of 69 documents from the file of Maddocks lawyers, which the respondents claimed were privileged. The Federal Court was tasked with determining whether the respondents had established the privilege claims and whether any waiver of privilege had occurred. The court found that the privilege claims were justified, as both the advice privilege and litigation privilege were established. The respondents did not waive the privilege through communications with a third party. Consequently, the court dismissed the application for production for inspection and ruled that the parties bear their own costs for the application.

The legal issues centred on the validity of the privilege claims and whether any waiver had occurred. The court examined the nature of the privilege, including the advice privilege and litigation privilege, and found them to be applicable to the documents in question. The respondents' communications with a third party were assessed, but the court concluded that no waiver of privilege had taken place. The court's decision hinged on the established principles of legal professional privilege and the absence of any waiver by the respondents.

In reaching its decision, the court considered the submissions from both sides regarding the waiver and the substantial injustice caused by disclosure. The court noted that the privilege claims were substantiated and that no waiver had occurred, thus denying the application for production for inspection. Regarding costs, the court found it appropriate for the parties to bear their own costs, considering the imprecision in the orders and the respondents' failure to precisely identify the basis for their claim of substantial injustice.

The court's final orders were that the application for production for inspection of the 69 documents was refused and that the costs of the application and hearing concerning this matter would be borne by the parties. The court's ruling was definitive in upholding the respondents' privilege claims and in denying the applicant's request for inspection of the documents.

Orders

Orders of the court

1. The applicant’s application for production for inspection of 69 identified documents from the file of Maddocks lawyers over which the first and second respondents claim legal professional privilege is refused.

2. All parties’ costs of the application and hearing before me concerning the matter referred to in order 1 be their costs in the cause.

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

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Decision

Reasons for decision

The waiver assertion does not justify an order for the production of any of the 69 documents.CONCLUSION The first and second respondents have justified their privilege claims in relation to the 69 documents. There has been no waiver. An order for production for inspection of any of these documents will be refused. In relation to costs, the parties were given an opportunity to make submissions on costs once I delivered this judgment. Despite being unsuccessful on this application, counsel for the applicant ambitiously sought a costs order against the first and second respondents on an indemnity basis, submitting that the history of the proceeding did not warrant the hearing of this interlocutory application and that those respondents were at fault. The first and second respondents submitted that costs should follow the event. In my view, given the arguable imprecision of the formulation of paragraph 3(a) of the orders made on 11 September 2014, and also given that the first and second respondents did not precisely identify the basis on which it was asserted that disclosure of the documents would cause “substantial injustice”, a more appropriate costs order is that the parties’ costs of and incidental to this application be their costs in the cause. I shall so order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.