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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 April 2003 82 min read

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FEDERAL COURT OF AUSTRALIA
DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384
EVIDENCE – practice – legal professional privilege – alleged implied waiver by pleading in a defence – extent of operation of any relevant waiver
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 considered
Mann v Carnell (1999) 201 CLR 1 considered and applied
Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925 (Full Court) considered
Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 considered
BP Australia Pty Limited v Nyran Pty Ltd [2002] FCA 1302 (per Nicholson J) referred to
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 applied
Northern Territory v GPAO (1999) 196 CLR 553 applied
Lillicrap v Nalder & Son [1993] 1 WLR 94 considered
Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976 considered
Kershaw v Whelan [1996] 1 WLR 358 considered
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 561 applied
Paragon Finance Plc v Freshfields [1999] 1 WLR 1183 considered
Hayes v Dowding [1996] PNLR 578   referred to
Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 considered
Mathisen v Wallarah Coal Co Ltd (1937) 37 SR 530   considered
In re Coomber [1911] 1 Ch. 723 referred to
Inche Noriah v Shaik Allie Bin Omar [1929] A.C. 127 referred to
Barilla v James (1964) 81 WN (Pt 1) (NSW) 457   considered
United States Surgical Corp v Hospital Products International Pty Limited (McLelland J unreported 11 October 1981, Equity Division No 2094/81)   considered
Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 considered
Attorney General (NT) v Maurice (1986) 161 CLR 475 referred to
Ampolex Limited v Perpetual Trustee Co (Canberra) Limited (1995) 37 NSWLR 405 considered
Benecke v National Australia Bank (1993) 35 NSWLR 110 referred to
Torcasio Developments Pty Ltd v Country Park Developments Pty Ltd (Byrne J Supreme Court of Victoria, 9 September 1991)   referred to
Bayliss v Cassidy (No 2) [2000] 1 Qd R 464 considered
Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419 referred to
Farrow Mortgage Services Pty Ltd v Webb 39 (1996) NSWLR 601 referred to
Southern Equities Corporation Ltd (In Liq) v Arthur Andersen & Co (1997) 70 SASR 166 referred to
Data Access Corporation v Powerflex Services Pty Ltd [1994] AIPC 91-112 not followed
Wardrope v Dunne [1996] 1 Qd R 224 not followed
Liquorland (Australia) Pty Ltd v Anghie [2003] VSC 73 referred to
Goldberg v Ng (1995) 185 CLR 83 referred to
Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 considered
Akins v Abigroup Ltd (1998) 43 NSWLR 539 referred to
Esso Australia Resources Limited v Federal Commissioner of Taxation (1998) 83 FCR 511 referred to
Equuscorp Pty Ltd v Kamisha Corp Ltd (1999) ATPR 41-697 considered
John Tanner Holdings Pty Ltd v Mortgage Management Ltd (2001) 182…

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 384
Decision Date: 30 APRIL 2003

CaseChat Overview and Summary

DSE (Holdings) Pty Ltd v InterTAN Inc was a case in the Australian court system that involved a dispute between the parties over the relevance of certain communications and their impact on the formation of a state of mind. The legal issues that the court was required to decide involved the interpretation of the term "relevance" as it related to the formation of a state of mind and whether certain communications were privileged or not. The court had to determine whether the later communications, which were concerned with the preparation of a case, were relevant to the formation of the state of mind or not.

The court's reasoning was that the relevance of a communication to the formation of a state of mind is not dependent on its relevance to the suit that contains the issue of the formation of the state of mind. The court held that the earlier communications relevant to formation of the state of mind may be scrutinized, but the later communications about preparing the case were not. The court found that the pleading of the state of mind may throw open to scrutiny the earlier communications relevant to formation of the state of mind; however, they did not throw open for scrutiny the later communications about preparing the case.

The court dismissed paragraphs numbered one in the notices of motion filed by both the applicant and the respondents. The balance of the motions, including any question of costs, stood over to a date to be fixed. The court also extended the time for filing of any application for leave to appeal from these orders or any of them to seven days from the pronouncement of judgment on the balance of the orders sought in both of the notices of motion referred to above.

Orders

Orders of the court

1. Paragraph numbered one in the notice of motion filed by the applicant, dated 10 February 2003 and filed in Court on 11 February 2003, be dismissed.

2. Paragraph numbered one in the notice of motion filed by the respondent, dated 10 February 2003 and filed in Court on 11 February 2003, be dismissed.

3. The balance of the said motions (including any question of costs) stand over to a date to be fixed.

4. Subject to further order, the time for filing of any application for leave to appeal from these orders or any of them be extended to seven days from the pronouncement of judgment on the balance of the orders sought in both of the notices of motion referred to above.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP J

The submission to the contrary by the respondents misunderstands, with respect, the notion of “relevance” adverted to by the majority in Telstra, supra at 167 A-B: It is the relevance to the formation of the state of mind, not the relevance to the suit that contains the issue of the formation of the state of mind, which brings about the unfairness. This is made clear by what the majority said in Telstra supra at 168 in the last sentenced in the passage quoted at [87] above: “legal advice which the party had, before or at the time of the relevant events, material to the formation of that state of mind”. A communication does not cease to be privileged because its subject matter is an earlier non-privileged occasion or circumstance. The later communication is concerned with the preparation of a case. What is then said does not contribute to the earlier formation of the state of mind. The pleading of the state of mind may throw open to scrutiny the earlier communications relevant to formation of the state of mind; but they do not throw open for scrutiny the later communications about preparing the case.Conclusions and Orders For these reasons I would dismiss paragraphs numbered 1 in the notices of motion filed by both the applicant and the respondents each dated 10 February 2003 and each filed in Court on 11 February 2003. Various other orders were sought by the applicant in its motion. The respondents indicated at the hearing a desire to file further evidence on those matters. I have been provided with helpful submissions on those further orders. The convenient course to take is to stand the balance of the motions (including the question of costs) over to a date to be fixed, initially for directions. Given that it may be more convenient, if any application for leave to appeal is to be made, for all matters to be the subject of one application, subject to hearing the parties in due course, I will extend the time for filing an application for leave to appeal against the orders that I propose to make until seven days from the pronouncement of judgment on the balance of the matters raised by the two notices of motion.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

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