GSM (Operations) Pty Ltd v Suwenda - [2010] QSC 33

SUPREME COURT OF QUEENSLAND

CITATION:

GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33

PARTIES:

GSM (OPERATIONS) PTY LTD
ACN 085 950 803
(first plaintiff)
BILLABONG INERNATIONAL LIMITED
ACN 084 923 956
(second plaintiff)
v
SUWENDA, Suzi Ann
(first defendant)
SUWENDA, Rory
(second defendant)
SUWENDA, Daniel Wayan

(third defendant)

FILE NO/S:

SC 6832 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 January 2010

DELIVERED AT:

Brisbane

HEARING DATE:

12 January 2010

JUDGE:

Margaret Wilson J

ORDER:

1.   that the application be dismissed;

2.   that the letter from Mr Fluit to the Registrar of 1 January 2010, to which is attached a copy of Professor Juwana’s opinions, be placed in an envelope, sealed and marked not be opened without an order of the Court;

3.   that the applicant/plaintiffs pay the respondent/defendants’ costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS – where plaintiffs are engaged in the marketing and distribution of Billabong products – where first plaintiff is the owner of the trademark "Billabong" and associated intellectual property and is a wholly owned subsidiary of the second plaintiff – where defendants are alleged to have been active partners in a business arrangement recognised and established under Indonesian law – where plaintiffs allege licence to conduct the Billabong Indonesian business subject to termination rights – where plaintiffs seek declarations with respect to the termination or expiration of agreement and entitlement to possession of marketing materials – where plaintiffs filed an application for summary judgment – where defendants sought an adjournment of that hearing – where defendants’ solicitor swore affidavit naming professor of law at Indonesian university "who had previously provided opinions on the applicable law" regarding the termination of licences – where plaintiffs bring an application for an order that defendants provide "a copy of the opinions" referred to solicitor's affidavit, pursuant to rule 222 and/or rule 223(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) – whether document attracts legal professional privilege – whether r 222 and/or rule 223(1)(b) engaged

Uniform Civil Procedure Rules 1999 (Qld), r 211, r 222, r 223(1)(b)

Balnaves v Smith [2008] 2 Qd R 413, considered
Century Frilling Limited v Gerling Australia Insurance Company Pty Ltd [2004] 2 Qd R 481, considered
Dubai Bank Limited v Galadari (No 2) [1990] 1 WLR 731, considered
Kennedy v Wallace [2004] FCAFC 337, cited
Lillypond Constructions Pty Ltd v Homann [2006] 1 Qd R 411, considered
Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd [1992] 1 Qd R 91, cited
Marubeni Corporation v Alafouzos [1986] CA Transcript 996, applied
RP Data Limited v Property Data Solutions Pty Ltd [2006] QSC 214, considered
Rubin v Expandable Limited [2008] 1 WLR 1099, considered

Quilter v Heatly (1883) 23 Ch D 42, considered

COUNSEL:

T P Sullivan SC for the applicant/plaintiffs.

R E O’Sullivan for the respondent/defendants.

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: [2010] QSC 33
Decision Date: 18 January 2010

CaseChat Overview and Summary

GSM (Operations) Pty Ltd and Billabong International Limited, trading as Billabong, were involved in a legal dispute with the defendants over the termination of a business arrangement recognised under Indonesian law. The plaintiffs sought declarations regarding the termination or expiration of the agreement and their entitlement to possession of marketing materials. They filed an application for summary judgment, which was opposed by the defendants, who sought an adjournment. The defendants' solicitor referenced an affidavit naming a professor of law from an Indonesian university who had provided opinions on the applicable law regarding the termination of the licenses. The plaintiffs then sought an order for the defendants to provide a copy of the professor’s opinions. The court had to determine whether the document was protected by legal professional privilege and whether rules 222 and 223(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) applied.

The court dismissed the plaintiffs’ application and held that the document in question attracted legal professional privilege. The court found that the communication between the solicitor and the professor was a confidential one, intended to obtain legal advice in anticipation of litigation. The court ruled that the privilege was not lost by the solicitor disclosing the existence of the communication in the affidavit. As a result, the court ordered that the letter from Mr Fluit to the Registrar, which included the professor’s opinions, be sealed and marked not to be opened without a court order. The plaintiffs were also ordered to pay the defendants’ costs of and incidental to the application, to be assessed on the standard basis.

Orders

Orders of the court

1. that the application be dismissed;

2. that the letter from Mr Fluit to the Registrar of 1 January 2010, to which is attached a copy of Professor Juwana’s opinions, be placed in an envelope, sealed and marked not be opened without an order of the Court;

3. that the applicant/plaintiffs pay the respondent/defendants’ costs of and incidental to the application to be assessed on the standard basis.

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:	GSM (Operations) Pty Ltd v Suwenda [2010] QSC 33
PARTIES:	GSM (OPERATIONS) PTY LTD ACN 085 950 803 (first plaintiff) BILLABONG INERNATIONAL LIMITED ACN 084 923 956 (second plaintiff) v SUWENDA, Suzi Ann (first defendant) SUWENDA, Rory (second defendant) SUWENDA, Daniel Wayan (third defendant)
FILE NO/S:	SC 6832 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 January 2010
DELIVERED AT:	Brisbane
HEARING DATE:	12 January 2010
JUDGE:	Margaret Wilson J
ORDER:	1. that the application be dismissed; 2. that the letter from Mr Fluit to the Registrar of 1 January 2010, to which is attached a copy of Professor Juwana’s opinions, be placed in an envelope, sealed and marked not be opened without an order of the Court; 3. that the applicant/plaintiffs pay the respondent/defendants’ costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS – where plaintiffs are engaged in the marketing and distribution of Billabong products – where first plaintiff is the owner of the trademark "Billabong" and associated intellectual property and is a wholly owned subsidiary of the second plaintiff – where defendants are alleged to have been active partners in a business arrangement recognised and established under Indonesian law – where plaintiffs allege licence to conduct the Billabong Indonesian business subject to termination rights – where plaintiffs seek declarations with respect to the termination or expiration of agreement and entitlement to possession of marketing materials – where plaintiffs filed an application for summary judgment – where defendants sought an adjournment of that hearing – where defendants’ solicitor swore affidavit naming professor of law at Indonesian university "who had previously provided opinions on the applicable law" regarding the termination of licences – where plaintiffs bring an application for an order that defendants provide "a copy of the opinions" referred to solicitor's affidavit, pursuant to rule 222 and/or rule 223(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) – whether document attracts legal professional privilege – whether r 222 and/or rule 223(1)(b) engaged Uniform Civil Procedure Rules 1999 (Qld), r 211, r 222, r 223(1)(b) Balnaves v Smith [2008] 2 Qd R 413, considered Century Frilling Limited v Gerling Australia Insurance Company Pty Ltd [2004] 2 Qd R 481, considered Dubai Bank Limited v Galadari (No 2) [1990] 1 WLR 731, considered Kennedy v Wallace [2004] FCAFC 337, cited Lillypond Constructions Pty Ltd v Homann [2006] 1 Qd R 411, considered Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd [1992] 1 Qd R 91, cited Marubeni Corporation v Alafouzos [1986] CA Transcript 996, applied RP Data Limited v Property Data Solutions Pty Ltd [2006] QSC 214, considered Rubin v Expandable Limited [2008] 1 WLR 1099, considered Quilter v Heatly (1883) 23 Ch D 42, considered
COUNSEL:	T P Sullivan SC for the applicant/plaintiffs. R E O’Sullivan for the respondent/defendants.