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DSE (Holdings) Pty Ltd v InterTAN Inc

DSE (Holdings) Pty Ltd v InterTAN Inc

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Case Copied 30 October 2003 75 min read

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FEDERAL COURT OF AUSTRALIA
DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191
PRACTICE AND PROCEDURE – legal professional privilege – advice privilege as opposed to litigation privilege – third party communications with solicitor – extent to which privileged
A-G (NT) v Maurice (1986) 161 CLR 435 referred to
ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 referred to
Anderson v Bank of British Columbia (1876) 2 Ch D 644 referred to
Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253 discussed
Baker v Campbell (1983) 153 CLR 52 referred to
Balabel v Air-India [1988] 1 Ch 317 applied
C-C Bottlers v Lion Nathan Ltd [1993] 2 NZLR 224 discussed
City of Gotha v Sotheby’s [1997] EWCA Civ 1897 referred to
Commissioner of Taxation v Pratt Holdings Pty Ltd [2003] FCA 6 not followed
Committee of Receivers of Galadari v Zealcastle Ltd (unrep) 6 October 1986   referred to
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 followed
EssoAustralia Resources Ltd v Commissioner of Taxation (1992) 201 CLR 49 referred to
Grant v Downs (1976) 135 CLR 674 referred to
Greenough v Gaskell (1833) 1 My & K 98, 39 ER 618 referred to
Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596 discussed
Hamersley Iron Pty Ltd v Metal and Engineering Workers’ Union WASC 21 September 1998 referred to
International Minerals & Chemical Corp (Canada) v Commonwealth Insurance Co (1991) 47 CCLI 196   referred to
Kennedy v Lyell (1883) 23 Ch D 387 referred to
Lakatoi v Walker [1999] NSWSC 156 referred to
Lawrence v Campbell (1859) 54 Drew 485; 62 ER 186 referred to
Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 referred to
Mann v Carnell (1999) 201 CLR 1 referred to
Meadon Pty Ltd & Ors v Nommack (No 247) Pty Ltd (Receiver and Manager Appointed) (In Prov Liq) & Ors Federal Court Davies J 31 January 1994 referred to
Miley v Flood [2001] 1 EHC 9; [2001] 2 IR 50 not followed
Minet v Morgan (1873) 8 Ch App 361 referred to
Mitsubishi Electric Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 referred to
Morlea Professional Services Pty Ltd v South British Insurance Co Ltd, Foster J 27 September 1984   referred to
Mudgway v New Zealand Insurance [1988] 2 NZLR 283 discussed
National Crime Authority v S (1991) 29 FCR 203 referred to
Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow (a firm) [1995] 1 All ER 976 referred to and discussed
Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 discussed
Packer v Deputy Commissioner of Taxation (Qld) [1985] 1 Q’d R 275 referred to
Price Waterhouse v BCCI Holdings (Luxembourg) SA [1992] BCLC 583 discussed
Propend Finance Pty Ltd & Ors v The Commissioner, Australian Federal Police & Ors unrep 6 May   Davies J    referred to
Re Highgrade Traders Ltd [1984] BCLC 151 discussed
R v Bell; Ex parte Lees (1980)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FCA 1191
Decision Date: 30 OCTOBER 2003

CaseChat Overview and Summary

DSE (Holdings) Pty Ltd v InterTAN Inc involved a dispute concerning the admissibility of certain documents and the application of legal professional privilege. The case was heard in the Federal Court of Australia. The primary issue was whether certain documents could be admitted into evidence and, if so, under what circumstances they could be used. The applicant, DSE (Holdings) Pty Ltd, contested the admissibility of specific documents and affidavits submitted by the respondent, InterTAN Inc, arguing that the affidavits contained statements of opinion and information based on hearsay. The court had to determine the validity of the objections raised and decide on the admissibility of the documents in question.

The court considered the objections raised by the applicant's counsel, Mr Smith SC, regarding the affidavit of Mr Holmes and exhibit PJHH1. The objection centred on the basis that Mr Holmes was purporting to give evidence about the purpose of the creation of the documents without personal knowledge or proper identification of the source of the information. The court acknowledged the force in the submissions but ultimately decided that the exhibits PJHH1 and 2 would be admitted into evidence, along with the evidence of Mr Gingerich and any other evidence tendered. The court made it clear that it would not consider any other documents unless they were formally tendered.

The court's reasoning was grounded in the principle that the admissibility of evidence should be determined on the basis of the documents and evidence actually presented and not on assumptions or speculations about other documents. The court emphasised that it would not look at any documents unless they were formally tendered. The court's decision allowed the exhibits PJHH1 and 2 to be admitted, subject to the evidence of Mr Gingerich and any other evidence that might be formally tendered during the proceedings.

ORDERS:
1. The matter was stood over to a date to be fixed for the making of orders in accordance with these reasons and for the hearing of any further argument.
2. The parties were required to deliver an agreed draft minute of order to the associate of Allsop J by 4 November 2003, reflecting the court's reasons.

Orders

Orders of the court

1. Stand the matter over to a date to be fixed for the making of orders in accordance with these reasons and for the hearing of any further argument.

2. On or before 4 November 2003 the parties deliver to the associate of Allsop J an agreed draft minute of order reflecting these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Objection was initially taken by Mr Smith SC, who, with Mr Whitford, appeared for the applicant, to [4(a)] of Mr Holmes’ affidavit when read with exhibit PJHH1. It was submitted that Mr Holmes was, apparently, purporting to give evidence about the purpose of the creation of the relevant documents; and that he could not do that as someone who had no personal knowledge of those facts and without identifying the source of any information about those facts so as to found appropriately framed evidence on information and belief (which this was not). There was force in these submissions. After some debate, the following exchanges took place:Mr Parker:The question of whether they were created for a dominant purpose is the conclusion. The conclusion we would ask the court to draw based on the descriptions and the dramatis personae. The list of categories is not put forward as evidence.His Honour: No, no, there is a list of categories and there is a schedule. Reading the two together, there is claim … for privilege in terms of PGHH1 and 2 read together. Where you and Mr Smith differ, I think, is that Mr Smith says, as I understand his submissions, Mr Smith would you correct me if I’m wrong please, … that this paragraph is irrelevant because it doesn’t depose to the facts that these documents were created for the dominant purpose.Mr Smith:That’s right. Not only for the dominant purpose but also they involved the giving of legal advice…….Mr Smith:I’m content to proceed with this on the footing that my learned friend says that in effect, on the issue of whether any particular document was brought into existence to give legal advice as distinct from any other category of advice, and for the purpose with which the document or communication was brought into existence, each of those two matters being facts. To the extent that those facts are sought to be proven nothing is relied upon by the respondents apart from the schedule and the inferences you will be invited to draw from that. If that’s the position then I’m content to proceed on this basis.Mr Parker:That is the position together with Mr Gingerich’s evidence.…Mr Parker:If your Honour does find it necessary to look at all the documents obviously ---His Honour: I’m not going to look at anything until someone tenders something or asks me to look at it.Mr Parker:I haven’t done that.…His Honour: …At the moment the evidence is Mr Gingerich’s affidavit, Mr Reid’s affidavit, the exhibit is tendered and does not mean in effect you withdraw the objection, Mr Smith, and simply deal with it on the basis that we have identified.Mr Smith:Yes, your Honour.His Honourthe exhibits PJHH1 and 2 are tendered and will be admitted into evidence and retain the same markings that they bear in the affidavit of Mr Holmes. The objection to paragraph 4 of Mr Holmes is not pressed on the basis that the transcript of the last 10 minutes reveals that it is said that the matter will be dealt with on the basis that the evidence of the dominant purpose and the claims otherwise to privilege will be based on the exhibits PJHH1 and 2 together with the evidence of Mr Gingerich and any other evidence that’s tendered.

Decision

Reasons for decision

ALLSOP J

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Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

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