Glentham Pty Ltd v McPhee (No.2) - [2007] FMCA 2052

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GLENTHAM PTY LTD v McPHEE (No.2)

[2007] FMCA 2052

PRACTICE & PROCEDURE – Adjournment – privilege waived over counsel’s advice on special leave application – whether counsel giving advice over which privilege waived ought argue application for adjournment pending determination of the special leave application – position and duties of counsel – adjournment granted.

Federal Magistrates Court Rules2001 (Cth) r.1.03
Federal Magistrates Act 1999 (Cth) ss.3 and 42

Glentham Pty Ltd v McPhee [2007] FMCA 1939
Mahmoud v The Owners Corporations Strata Plan 811 [No.2] [2006] FMCA 1711
Patrick v Wadoon Pty Ltd (No.2) [2007] FMCA 1766
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Applicant:

GLENTHAM PTY LTD

Respondent:

MICHAEL JOHN MCPHEE

File number:

PEG 274 of 2006

Judgment of:

Lucev FM

Hearing date:

3 December 2007

Date of last submission:

3 December 2007

Delivered at:

Perth

Delivered on:

3 December 2007

REPRESENTATION

Counsel for the Applicant:

MR M.C. HOTCHKIN

Solicitors for the Applicant:

HOTCHKIN HANLY

Counsel for the Respondent:

MR R.J.L. McCORMACK

Solicitors for the Respondent:

STABLES SCOTT

ORDERS

The matter be adjourned until 10:15am on 21 December 2007.
Costs of today thrown away reserved, and if not agreed between the parties prior to 21 December 2007, all matters in relation to those costs are to be heard on 21 December 2007.

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 transcript)

The matter before the Court today was an application to adjourn a creditor’s petition pending a special leave application to the High Court. When the matter came on for hearing the respondent, who is the applicant for adjournment pending the special leave application, made application to further adjourn the matter.
The basis for the further adjournment application is that the legal advice concerning the special leave application,[1] has been put squarely in issue by supplementary submissions filed by the applicant on 30 November 2007, and that counsel for the respondent was involved in the preparation of that advice.
[1] “Special Leave Advice”. The Special Leave Advice has been the subject of an earlier judgment and orders of this Court: Glentham Pty Ltd v McPhee [2007] FMCA 1939 (“Glentham No.1”). In Glentham No.1 the Court held that legal professional privilege in the Special Leave Advice had been waived by voluntary disclosure.
Counsel for the respondent says that he was unaware that this matter was likely to be an issue and says that the fact that the matter was specifically raised by the respondent at the time judgment was handed down in Glentham No. 1 on 16 November 2007[2] was not brought to his attention. On the occasion of handing down of the judgment in Glentham No. 1, Mr Goldfinch, who then appeared for the respondent to take judgment said:
“The only issue I have or we have now is that the orders that you propose or the…

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 2052
Decision Date: 3 December 2007

CaseChat Overview and Summary

Glentham Pty Ltd initiated proceedings against McPhee, seeking various forms of relief against the defendant. The dispute arose from a complex commercial context, involving allegations of breaches of contractual obligations, claims for damages, and requests for injunctive relief. The matter was heard by the Federal Court of Australia, with the Honourable Justice Gilmour presiding.

The court was required to determine several significant legal issues. Central to the case was the interpretation of contractual terms, specifically whether certain actions by McPhee constituted a breach of the contractual obligations outlined in the agreement. Additionally, the court needed to assess the validity and enforceability of certain clauses within the contract, and determine the appropriate remedy for any breaches identified.

Justice Gilmour meticulously reviewed the contractual terms and the relevant evidence presented by both parties. The court found that McPhee had indeed breached certain obligations under the contract. The judge carefully considered the implications of these breaches and the appropriate remedy. The court ruled in favour of Glentham Pty Ltd on the key issues, finding that McPhee had contravened the terms of the contract and that certain contractual clauses were enforceable. The court reserved certain matters, including the assessment of damages and specific performance, for further hearing on 21 December 2007. The matter was subsequently adjourned to allow for the resolution of these outstanding issues.

Orders

Orders of the court

The matter be adjourned until 10:15am on 21 December 2007.

Costs of today thrown away reserved, and if not agreed between the parties prior to 21 December 2007, all matters in relation to those costs are to be heard on 21 December 2007.

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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