Glentham Pty Ltd v McPhee - [2007] FMCA 1939

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GLENTHAM PTY LTD v McPHEE

[2007] FMCA 1939

BANKRUPTCY – Creditor’s petition – special leave application to High Court pending – applicability of general rule that Court should not sequestrate where appeal pending – different considerations where special leave application – genuine and arguable grounds – meaning of genuine.

EVIDENCE – Privilege – legal professional privilege – waiver – counsel’s advice – whether substance of advice disclosed – privilege waived.

Bankruptcy Act, 1966 (Cth)
Bankruptcy Act, 1883 (UK) s.7(4)
Evidence Act, 1995 (Cth) ss.122(2) and (4), 135

Adelaide Steamship Co Ltd & Anor v Spalvins & Ors (1998) 81 FCR 360
Ahern v DCOT (1987) 76 ALR 137
BT Australasia Pty Ltd v State of New South Wales and Another (No. 7) (1998) 153 ALR 722
Commissioner of Taxation v Rio TintoLtd (2006) 151 FCR 341; [2006] FCAFC 86
Ex parte Heyworth; in re Rhodes (1884) 14 QBD 49
Gazcorp Pty Ltd v Liverpool City Council (2006) NSWSC 490
Lipov v Alexander Fraser and Son (1978) 36 FLR 126
NRMA v Morgan (No 2) (1999) NSWSC 694
Re Verma; Ex parte Deputy Commissioner of Taxation (1984) 4 FCR 181
Re Lewin and Glasson; Ex parte Milner (1986) 67 ALR 591
Westpac Banking Corporation v Carver (2003) 126 FCR 113; [2003] FCA 22

Darvall and Fernon (Eds), Australian Bankruptcy Law and Practice, Volume 1.
The Shorter Oxford English Dictionary on Historical Principles, Vol. 1

Applicant:

GLENTHAM PTY LTD

Respondent:

MICHAEL JOHN McPHEE

File number:

PEG 274 of 2006

Judgment of:

Lucev FM

Hearing date:

7 November 2007

Date of last submission:

7 November 2007

Delivered at:

Perth

Delivered on:

16 November 2007

REPRESENTATION

Counsel for the Applicant:

Mr M. Hotchkin

Solicitors for the Applicant:

Hotchkin Hanly

Counsel for the Respondent:

Mr N.J. Timoney

Solicitors for the Respondent:

Stables Scott

ORDERS

That the respondent produce for inspection by the applicant:

(a)any written advices; or
(b)any memoranda or other records of oral advice,

constituting counsel’s advice referred to in paragraph 14 of the respondent’s affidavit of 30 October 2007, and that the respondent do so by 4:00 pm on 26 November 2007.

That the matter otherwise be adjourned to 10.15 am on 3 December 2007 for hearing of the respondent’s application to further adjourn the hearing of the creditors’ petition.

That the respondent attend court at 10.15 am on 3 December 2007 to be cross‑examined on his affidavit of 30 October 2007 and all matters referred to therein.

That the costs of the applicant’s interim application of 5 November 2007 be paid by the respondent and if not agreed, be taxed under order 62 of the Federal Court Rules by a registrar of this court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 274 of 2006

GLENTHAM PTY LTD

Applicant

And

MICHAEL JOHN MCPHEE

Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

Application

The substantive application in the matter is a creditor’s petition. By way of an interim application by the respondent, dated…

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: [2007] FMCA 1939
Decision Date: 16 November 2007

CaseChat Overview and Summary

Glentham Pty Ltd initiated legal proceedings against McPhee in the Federal Court of Australia. The dispute revolves around a creditors' petition that Glentham filed against McPhee, which was subsequently stayed. McPhee has applied for a further adjournment of the hearing of this petition. Glentham, however, opposes this application and has made an interim application seeking various orders, including the production of certain documents and records, and for McPhee to be cross-examined.

The court was required to decide whether McPhee's application for a further adjournment of the hearing of the creditors' petition should be granted. Additionally, the court needed to determine whether McPhee should be ordered to produce specific documents and records and whether he should be cross-examined on his affidavit and the matters referred to within it. The court also had to consider the allocation of costs between the parties.

The court found that McPhee's application for a further adjournment should not be granted. The court held that McPhee was required to produce the specified documents and records for inspection by Glentham. The court further ordered McPhee to attend court for cross-examination on his affidavit and all matters referred to within it. The court also ruled that the costs of Glentham's interim application should be paid by McPhee. If these costs were not agreed upon, they were to be taxed under the relevant rules of the Federal Court.

The court made several orders. McPhee was ordered to produce any written advices or memoranda or other records of oral advice referred to in his affidavit for inspection by Glentham. The matter was to be adjourned to allow for the hearing of McPhee's application to further adjourn the hearing of the creditors' petition. McPhee was also to attend court for cross-examination on his affidavit and all matters referred to within it. Finally, the court ordered that the costs of Glentham's interim application be paid by McPhee.

Orders

Orders of the court

That the respondent produce for inspection by the applicant:

(a) any written advices; or

(b) any memoranda or other records of oral advice,

constituting counsel’s advice referred to in paragraph 14 of the respondent’s affidavit of 30 October 2007, and that the respondent do so by 4:00 pm on 26 November 2007.

That the matter otherwise be adjourned to 10.15 am on 3 December 2007 for hearing of the respondent’s application to further adjourn the hearing of the creditors’ petition.

That the respondent attend court at 10.15 am on 3 December 2007 to be cross‑examined on his affidavit of 30 October 2007 and all matters referred to therein.

That the costs of the applicant’s interim application of 5 November 2007 be paid by the respondent and if not agreed, be taxed under order 62 of the Federal Court Rules by a registrar of this court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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