FAI General Insurance Co Ltd v Tidbold - [1999] QCA 524

SUPREME COURT OF QUEENSLAND

CITATION: FAI General Insce v ACN 010 087 573 Pty Ltd and Anor
[1999] QCA 524
PARTIES: FAI GENERAL INSURANCE COMPANY LIMITED
(ACN 004 304 545)
(Appellant/Respondent)
v
ACN 010 087 573 PTY LTD
(First Respondent/First Applicant)
MICHAEL GEORGE TIDBOLD
(Second Respondent/Second Applicant)
FILE NO: Appeal No 5507 of 1999
SC No 520 of 1994
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 21 December 1999
DELIVERED AT: Brisbane
HEARING DATE: 30 July 1999
JUDGES: McPherson JA, Derrington and Byrne JJ
Separate reasons for judgment of each member of the Court;
each concurring as to the orders made.
ORDER: Appeal allowed. Orders below set aside. No order as to
costs.
CATCHWORDS: PROCEDURE – DISCLOSURE – joint legal professional privilege - where insurer took over conduct of defence of insured in earlier proceedings – where information provided to joint solicitor who obtained material for the purpose of joint endeavour – where original action settled yet issue of indemnity as between insurer and insured remains – where each party entitled to access material acquired by joint solicitor in which they showed common interest and joint privilege against others – whether one party may unilaterally waive joint privilege and disclose material to third party during related proceedings in which other party not a party.
PROCEDURE – DISCLOSURE – joint legal professional privilege – confidentiality – whether one party entitled to use materials provided in confidence to joint solicitor by other party – improper purpose.
Ali Shipping Corporation v Shipyard Trogir [1999] 1 WLR
314, cited
Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995)
37 NSWLR 405, 412-3, cited
Atlanta International Insurance Company v Bell 475 NW 2d
294, cited
Boyce v Goodyear Australia Ltd (Unreported, NSW CA, 16
September 1996), considered
Breen v Williams (1996) 186 CLR 71, discussed
Brown v Guardian Royal Exchange Assurance PLC (1994) 2
Ll Rep 325 at 329, considered
CI & D Industries Pty Ltd v Keeling (Unrep NSW SC,
Abadee J, 26 March 1997), cited
Commissioner of Australian Federal Police v Propend
Finance Pty Ltd (1997) 188 CLR 501, cited
Commonwealth of Australia v John Fairfax & Sons Ltd
(1980) 147 CLR 39, discussed
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic)
(1987) 14 FCR 434, 443, discussed
Coulthard v State of South Australia (1995) 63 SASR 531
Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd
[1979] VR 167, cited
Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance
Co Ltd (1973-1974) 130 CLR 1, cited
Esso Australia Resources Ltd v Plowman (1995) 183 CLR
10, discussed
Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39
NSWLR 601, cited
Fractionated Cane Technology Ltd v Ruiz-Avila [1988] 2 Qd
R 610, cited
Global Funds Management (NSW) Ltd v Rooney (1994) 36
NSWLR 122, cited
Groom v Croker (1939) 1 KB 194, cited
re Crocker [1936] Ch 696, cited
Johns v Australian Securities…

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: [1999] QCA 524
Decision Date: 21/12/1999

CaseChat Overview and Summary

In the matter of FAI General Insurance Co Ltd v Tidbold, the High Court of Australia addressed the issue of disclosure of information held under joint legal professional privilege in the context of an indemnity claim between an insurer and its insured. The dispute arose from the settlement of an earlier action where the insurer had taken over the defence of the insured, leading to questions about the scope of privilege and the rights of each party to access and disclose information held by a joint solicitor.

The central legal issue before the court was whether an insurer, having a joint interest with the insured in the outcome of a previous legal proceeding, could unilaterally waive the joint legal professional privilege and disclose the material to a third party during related proceedings in which the insured was not a party. This involved determining the extent to which each party retained control over the disclosure of privileged information under a joint privilege arrangement.

The court held that each party with a joint interest in the outcome of the earlier legal proceedings was entitled to access the material acquired by the joint solicitor, provided there was a common interest and joint privilege against others. However, the court found that neither party could unilaterally waive the joint privilege and disclose the privileged material to a third party during related proceedings where the other party was not a party. The insurer's unilateral action to disclose the privileged material was deemed to be in breach of the joint privilege arrangement. Consequently, the appeal was allowed, and the orders made by the lower courts were set aside. There was no order regarding costs.

Orders

Orders of the court

Appeal allowed. Orders below set aside. No order as to

costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	FAI General Insce v ACN 010 087 573 Pty Ltd and Anor [1999] QCA 524
PARTIES:	FAI GENERAL INSURANCE COMPANY LIMITED (ACN 004 304 545) (Appellant/Respondent) v ACN 010 087 573 PTY LTD (First Respondent/First Applicant) MICHAEL GEORGE TIDBOLD (Second Respondent/Second Applicant)
FILE NO:	Appeal No 5507 of 1999 SC No 520 of 1994
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 December 1999
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 1999
JUDGES:	McPherson JA, Derrington and Byrne JJ Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
ORDER:	Appeal allowed. Orders below set aside. No order as to costs.
CATCHWORDS:	PROCEDURE – DISCLOSURE – joint legal professional privilege - where insurer took over conduct of defence of insured in earlier proceedings – where information provided to joint solicitor who obtained material for the purpose of joint endeavour – where original action settled yet issue of indemnity as between insurer and insured remains – where each party entitled to access material acquired by joint solicitor in which they showed common interest and joint privilege against others – whether one party may unilaterally waive joint privilege and disclose material to third party during related proceedings in which other party not a party.
PROCEDURE – DISCLOSURE – joint legal professional privilege – confidentiality – whether one party entitled to use materials provided in confidence to joint solicitor by other party – improper purpose.
Ali Shipping Corporation v Shipyard Trogir [1999] 1 WLR 314, cited Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405, 412-3, cited Atlanta International Insurance Company v Bell 475 NW 2d 294, cited Boyce v Goodyear Australia Ltd (Unreported, NSW CA, 16 September 1996), considered Breen v Williams (1996) 186 CLR 71, discussed Brown v Guardian Royal Exchange Assurance PLC (1994) 2 Ll Rep 325 at 329, considered CI & D Industries Pty Ltd v Keeling (Unrep NSW SC, Abadee J, 26 March 1997), cited Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, cited Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39, discussed Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, 443, discussed Coulthard v State of South Australia (1995) 63 SASR 531 Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167, cited Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd (1973-1974) 130 CLR 1, cited Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, discussed Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601, cited Fractionated Cane Technology Ltd v Ruiz-Avila [1988] 2 Qd R 610, cited Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122, cited Groom v Croker (1939) 1 KB 194, cited re Crocker [1936] Ch 696, cited Johns v Australian Securities…