Domain Paper (Australia) Pty Ltd v Galloway

Link copied
Case Copied 36 min read

FEDERAL COURT OF AUSTRALIA

Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936

Citation: Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936
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 and KIM ELIZABETH PHIPPS
File number: VID 648 of 2012
Judge: MURPHY J
Date of judgment: 28 August 2014
Catchwords: EVIDENCE – legal professional privilege – advice privilege – dominant purpose of giving or obtaining legal advice or the provision of legal services – whether legal advice provided to individual in personal capacity or in capacity as director of company – onus of proving claim for privilege – whether onus of proving privilege discharged
Legislation: Competition and Consumer Act 2010 (Cth)
Evidence Act 1995 (Cth)
Fair Trading Act
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Apple Computer Australia Pty Ltd v Wily [2002] NSWSC 855
AWB Ltd v Cole and Another (No 5) (2006) 155 FCR 30
Barnes v Federal Commissioner of Taxation (2007) 242 ALR 601
DSE (Holdings) Pty Ltd v InterTAN Inc (2003)
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Hawksford v Hawksford [2008] NSWSC 31
Kang v Kwan & Ors [2001] NSWSC 698
Re Southland Coal Pty Ltd (receivers and managers appointed)(in liq) (2006) 203 FLR 1
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Date of hearing: 14 August 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 73
Counsel for the Applicant: Mr T North QC and Mr L Magowan
Solicitor for the Applicant: Koornang Legal Services
Counsel for the Respondents: Mr S Ahmed
Solicitor for the Respondents: Buttar Caldwell & Co Solicitors

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

JUDGE:

MURPHY J

DATE OF ORDER:

28 AUGUST 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.On or before 4.00pm on 5 September 2014 Maddocks (a firm) provide to the Victoria District Registry of this Court its complete original file in the name of John Findlay Galloway carrying file number 5637569 (“the Maddocks file”).

2.Until further order the Maddocks file is to remain in the possession and custody of the Court.

3.Each of the parties to this proceeding and their solicitors, and the liquidator of Angus Agencies Pty Ltd, Norman Kenneth Jones, may inspect and copy the Maddocks file upon giving the Registry reasonable notice of their intention to do so, and provided that a Registrar or his or her delegate is available to supervise that process.

4.The First and Second Respondents pay the…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Domain Paper (Australia) Pty Ltd v Galloway and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2014] FCA 936
Decision Date

CaseChat Overview and Summary

In the case of Domain Paper (Australia) Pty Ltd v Galloway, the Full Court was called upon to determine whether Mr and Mrs Galloway could successfully assert a claim of legal professional privilege over certain documents held by Maddocks, a legal firm. The primary dispute revolved around whether the documents in question were created for the dominant purpose of providing legal advice to Mr and Mrs Galloway in their personal capacity or in their roles as directors of Angus Agencies. The central legal issues before the court were whether Mr and Mrs Galloway had discharged their burden of proving the privileged nature of the documents and whether these documents were indeed created for the purpose of obtaining legal advice in their personal capacity. The court examined the evidence provided by both parties and found that Mr and Mrs Galloway had not met the necessary standard of proof required to establish their claim of privilege. The court held that the evidence provided was insufficient, consisting mainly of conclusory assertions rather than specific, focused evidence. Furthermore, the court determined that the documents in question were more likely created for the purpose of providing legal advice to Mr and Mrs Galloway in their capacity as directors of Angus Agencies, thus negating the privilege claim. Consequently, the court ruled in favour of Domain Paper (Australia) Pty Ltd, ordering the production and inspection of the contested documents. The decision underscored the necessity for claimants to provide detailed and specific evidence to support their privilege claims, highlighting the importance of adhering to legal standards and procedures in such matters.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As the Full Court explained in Barnes v Federal Commissioner of Taxation (2007) 242 ALR 601 at [18] per Tamberlin, Stone and Siopis JJ:The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185; 213 ALR 108; [2004] FCAFC 337, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211; 100 ALR 151 at 158-160 (per Lockhart J); Grant v Downs (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ) … mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. (Emphasis added.) Mr and Mrs Galloway failed to establish any basis for their claim of privilege. I will make the orders for production and inspection sought by Domain.Who was Maddocks acting for in respect of the legal advice and services provided? Having concluded that Mr and Mrs Galloway failed to meet their onus it is strictly unnecessary to decide this question. To make out their claim for privilege Mr and Mrs Galloway must establish that the documents in the Maddocks file were brought into existence for the dominant purpose of their obtaining, or Maddocks providing, legal advice and services to them personally rather than in their capacity as directors of Angus Agencies. Documents brought into existence by Maddocks for the dominant purpose of providing legal advice and services to Mr and Mrs Galloway as directors of Angus Agencies cannot be the subject of a claim for privilege by them personally. That privilege rests with Angus Agencies. In support of Mr and Mrs Galloway’s claim of privilege is the fact that the “Disclosure Statement and Costs Agreement” provided by Maddocks to Mr Galloway on 3 February 2010 (“the retainer”) stated that Mr Galloway instructed Maddocks to act in connection with “providing asset protection advice to you, as shareholder of Angus Agencies.” It stated that the scope of the work to be performed included “review of existing group structure” and “advice on asset protection”. The evidence also shows that Maddocks considered that it was acting for Mr and Mrs Galloway personally rather than for the company. There is no written retainer between Maddocks and Angus Agencies but it is not necessary for a retainer to exist in order for a solicitor-client relationship to arise: see Hawksford v Hawksford [2008] NSWSC 31 at [17]-[20] per White J. Nor is the subjective intention of Maddocks in respect of a solicitor-client relationship with Angus Agencies determinative. I respectfully agree with the remarks of Barrett J in Apple Computer Australia Pty Ltd v Wily [2002] NSWSC 855 at [7] where his Honour held that:a “client” vis-à-vis a lawyer is a person for whom the lawyer performs legal services. Whether a relationship of that kind exists is to be determined by reference to the intentions of the parties objectively ascertained.

Decision

Reasons for decision

It is the task of the party claiming legal professional privilege to identify the documents over which the claim is made, and the specific grounds of the claim. I do not accede to the submission that the Court should inspect the file when Mr and Mrs Galloway have made a strategic decision to put on no material whatsoever to assist the Court.Conclusion regarding onus There were a number of straightforward ways in which Mr and Mrs Galloway could have discharged the onus of proving that particular documents in the Maddocks file were created or procured for the dominant purpose of their seeking, and Maddocks providing, legal advice or services to them in their personal capacity. Among other things, they or their legal representatives could have put on an affidavit identifying the documents over which privilege was claimed and setting out:(a)the circumstances and context in which the documents were brought into existence;(b)the purposes of the person who authored the documents or procured their creation; or(c)the nature of the documents supported by argument or submissions.See AWB Principle 1. They chose not to do so. As the Full Court explained in Barnes v Federal Commissioner of Taxation (2007) 242 ALR 601 at [18] per Tamberlin, Stone and Siopis JJ:The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185; 213 ALR 108; [2004] FCAFC 337, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211; 100 ALR 151 at 158-160 (per Lockhart J); Grant v Downs (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ) … mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. (Emphasis added.) Mr and Mrs Galloway failed to establish any basis for their claim of privilege. I will make the orders for production and inspection sought by Domain.Who was Maddocks acting for in respect of the legal advice and services provided? Having concluded that Mr and Mrs Galloway failed to meet their onus it is strictly unnecessary to decide this question. To make out their claim for privilege Mr and Mrs Galloway must establish that the documents in the Maddocks file were brought into existence for the dominant purpose of their obtaining, or Maddocks providing, legal advice and services to them personally rather than in their capacity as directors of Angus Agencies. Documents brought into existence by Maddocks for the dominant purpose of providing legal advice and services to Mr and Mrs Galloway as directors of Angus Agencies cannot be the subject of a claim for privilege by them personally. That privilege rests with Angus Agencies. In support of Mr and Mrs Galloway’s claim of privilege is the fact that the “Disclosure Statement and Costs Agreement” provided by Maddocks to Mr Galloway on 3 February 2010 (“the retainer”) stated that Mr Galloway instructed Maddocks to act in connection with “providing asset protection advice to you, as shareholder of Angus Agencies.” It stated that the scope of the work to be performed included “review of existing group structure” and “advice on asset protection”. The evidence also shows that Maddocks considered that it was acting for Mr and Mrs Galloway personally rather than for the company.

Ratio Decidendi

Legal Principle Established

I note that the determination of the issue of privilege in the present context is interlocutory rather than final, and it is unnecessary that the evidence on the issue be adduced in admissible form as if at trial: Re Southland Coal Pty Ltd (receivers and managers appointed)(in liq) (2006) 203 FLR 1 at [26] per Austin J.CONSIDERATION I have reached the view that Mr and Mrs Galloway’s claim of legal professional privilege must fail. I do so for two main reasons, namely:(a)they failed to adduce any evidence to meet their onus to establish their claim; and(b)the evidence adduced by Domain tends to show that, at least in respect of some important parts of the legal advice and services sought and obtained by Mr Galloway from Maddocks under file number 5637569, Mr Galloway was instructing Maddocks in his capacity as a director of Angus Agencies. At least in respect of such legal advice and legal services I am not satisfied that the documents in the Maddocks file were created or procured for the dominant purpose of providing legal advice and legal services to Mr and Mrs Galloway personally. While I accept the possibility that there may be other documents in the file which were brought into existence by Maddocks for Mr and Mrs Galloway in their personal capacity, the respondents did not identify any such documents or set out the specific ground for their claim. Again, they did not adduce any evidence to meet their onus to establish a claim of privilege in respect of such documents.I now go to these two reasons in more detail.Did Mr and Mrs Galloway fail to discharge the onus? It is uncontentious that Mr and Mrs Galloway have the onus of proving that the documents in the Maddocks file over which they assert a claim of privilege were created or procured by Maddocks for the dominant purpose of Mr and Mrs Galloway seeking or obtaining legal advice or being provided legal services in their personal capacity, rather than as directors of Angus Agencies. In my view they failed to do so. In their sworn Lists of Documents dated 29 July 2013 each of Mr and Mrs Galloway state that the documents under his or her control include the following documents for which privilege is claimed:Various correspondence between Maddocks and [Mr and/or Mrs Galloway], including but not limited to letters of advice, emails, file notes, advices, file notes [sic], memoranda and draft documents. Rule 20.17(2)(c) of the Federal Court Rules 2011 (“the Rules”) requires that a List of Documents must describe “each document in the party’s control for which privilege from production is claimed and the grounds of the privilege.” A claim of privilege cannot be established by the mere assertion that privilege applies to particular documents on the basis that they were created for the purpose of giving or obtaining legal advice or providing legal services: see AWB Principle 3. It was plainly insufficient for Mr and Mrs Galloway to make a general claim for privilege without identifying the documents in respect of which the claim was made. Their Lists of Documents do not comply with the Rules and in my view the claim of privilege is little more than a bald assertion.