Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd - [2008] FCA 1041

FEDERAL COURT OF AUSTRALIA
Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041
PRACTICE AND PROCEDURE - discovery - whether further discovery should be required – whether grounds for a belief that documentation exists - whether legal professional privilege waived by limited disclosure – whether confidentiality orders made by consent should be varied – whether blanket claims for privilege have been made - whether parts of discovered documents may be masked for confidentiality
Federal Court Rules O 15 r 2, O 15 r 6, O 15 r 8
Brookfield v Yevad Products Pty Ltd [2002] FCA 1376 cited
Chanel Ltd v F.W. Woolworth and Co Ltd (1981) 1 WLR 485 cited
Fylas Pty Ltd and Vynal Pty Ltd (1992) 2 Qd R 593 cited
Gray and Associated Book Publishers (Aust) Pty Limited [2002] FCA 1045 cited
Interchase Corporation Ltd in Liquidation v Grosvenor Hill Qld (Pty Ltd) No 2 (1999) 1 Qd R 163 cited
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 241 ALR 88 cited
Kyocera Mita Australia Pty Ltd v Mitronics Corporation Pty Ltd [2005] FCA 242 cited
Mann v Carnell (1999) 201 CLR 1 cited
Menkens v Wintour [2007] 2 Qd R 40 cited
FIG TREE DEVELOPMENTS LTD (ABN 47 081 797 033) v AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LTD AS RESPONSIBLE ENTITY FOR THE PRIME RETIREMENT AND AGED CARE PROPERTY TRUST (ABN 74 095 474 436)
QUD338 OF 2007
LOGAN J
27 JUNE 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD338 OF 2007

BETWEEN:

FIG TREE DEVELOPMENTS LTD (ABN 47 081 797 033)
Applicant/Cross-Respondent

AND:

AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LTD AS RESPONSIBLE ENTITY FOR THE PRIME RETIREMENT AND AGED CARE PROPERTY TRUST (ABN 74 095 474 436)
Respondent/Cross-Claimant

JUDGE:

LOGAN J

DATE OF ORDER:

27 JUNE 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Leave is granted to the Applicant to amend its statement of claim in the form filed on 23 June 2008.
2.Insofar as it may be necessary for the Respondent to plead to any amendments made by that amended statement of claim, the Respondent have leave to amend its further amended defence and cross-claim, within seven days.
3.With respect to the Applicant/Cross-Respondent's notice of motion filed on 12 June 2008:
awithin 7 days, the Respondent/Cross-Claimant, file and serve an affidavit stating whether any document of the classes identified in paragraphs 1, 4, 9, 22 and 36(3) of the schedule to the notice of motion, is or has been in its possession, custody or power and, if it has been, but is not then in its possession, custody or power, when it parted with the document and what has become of the document;
bthe Applicant/Cross-Respondent have liberty to apply regarding each of the classes of documents identified in paragraphs 31, 32, 33 and 35 of the schedule to the notice of motion; and
cthe Respondent/Cross-Claimant pay the Applicant/Cross-Respondent's costs of and incidental to the notice of motion, to be taxed, if not agreed.

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: [2008] FCA 1041
Decision Date: 27 June 2008

CaseChat Overview and Summary

Fig Tree Developments Ltd brought an action against Australian Property Custodian Holdings Ltd in the Federal Court of Australia. The dispute concerns a series of financial transactions and related documents, and whether those documents are discoverable in the context of the proceedings. The case involves applications for leave to amend pleadings, disclosure of documents, and related costs. The central issues for the court to determine were whether leave should be granted for amendments to the statement of claim and defence, the scope of disclosure for specific classes of documents, and the allocation of costs between the parties. The court considered the necessity and relevance of the documents in question, the timeliness of the applications, and the principles governing discovery and disclosure in litigation. The court concluded that leave should be granted for amendments to the pleadings to reflect the evolving nature of the case and to ensure that all relevant issues are properly before the court. Regarding the disclosure of documents, the court issued specific orders for certain classes of documents to be produced, while excluding others from disclosure due to claims of legal professional privilege. The court also directed the parties to exchange outlines of their arguments in sealed envelopes, to be opened only with leave of the court, to manage the flow of information and arguments in the case. The final orders included directions for the parties to amend their pleadings, produce certain documents, and pay costs associated with the motions.

Orders

Orders of the court

1. Leave is granted to the Applicant to amend its statement of claim in the form filed on 23 June 2008.

2. Insofar as it may be necessary for the Respondent to plead to any amendments made by that amended statement of claim, the Respondent have leave to amend its further amended defence and cross-claim, within seven days.

3. With respect to the Applicant/Cross-Respondent's notice of motion filed on 12 June 2008:

a within 7 days, the Respondent/Cross-Claimant, file and serve an affidavit stating whether any document of the classes identified in paragraphs 1, 4, 9, 22 and 36(3) of the schedule to the notice of motion, is or has been in its possession, custody or power and, if it has been, but is not then in its possession, custody or power, when it parted with the document and what has become of the document;

b the Applicant/Cross-Respondent have liberty to apply regarding each of the classes of documents identified in paragraphs 31, 32, 33 and 35 of the schedule to the notice of motion; and

c the Respondent/Cross-Claimant pay the Applicant/Cross-Respondent's costs of and incidental to the notice of motion, to be taxed, if not agreed.

4. With respect to the Respondent/Cross-Claimant's notice of motion filed on 18 June 2008:

a paragraphs 1, 2(a), 2(b) and 3 of the notice of motion be dismissed;

b within seven days, the Applicant/Cross-Respondent, produce for inspection by the Respondent/Cross-Claimant, unmasked copies of its discovered documents that have been masked, save that such of the masked documents as are subject to a claim for legal professional privilege be excluded from the scope of this order;

c the Respondent/Cross-Applicant have liberty to apply in respect of any document over which a claim for privilege is made under paragraph 4(b) above;

d the Respondent/Cross-Claimant pay the Applicant/Cross-Respondent's costs of and incidental to paragraphs 1, 2(a), 2(b) and 3 of the notice of motion, to be taxed, if not agreed; and

e the Applicant/Cross-Respondent pay the Respondent/Cross-Claimant's costs of and incidental to paragraph 2(c) of the notice of motion, to be taxed, if not agreed.

5. Copies of the parties’ written outlines of argument in relation to the motions heard and determined on 26 and 27 June 2008, be lodged with the Registry in separate sealed envelopes, which envelopes are not to be opened except with the leave of the Court.

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

LOGAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LOGAN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD338 OF 2007

BETWEEN:	FIG TREE DEVELOPMENTS LTD (ABN 47 081 797 033) Applicant/Cross-Respondent
AND:	AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LTD AS RESPONSIBLE ENTITY FOR THE PRIME RETIREMENT AND AGED CARE PROPERTY TRUST (ABN 74 095 474 436) Respondent/Cross-Claimant

JUDGE:	LOGAN J
DATE OF ORDER:	27 JUNE 2008
WHERE MADE:	BRISBANE