Guy Carpenter and Company Pty Ltd v Grove (No 3)

[2011] FCA 1250

FEDERAL COURT OF AUSTRALIA

Guy Carpenter & Company Pty Ltd v Grove (No 3) [2011] FCA 1250

Citation:		Guy Carpenter & Company Pty Ltd v Grove (No 3) [2011] FCA 1250
Parties:		GUY CARPENTER & COMPANY PTY LTD v SCOTT GROVE, JOHN CARROLL, GRANT HOLLYMAN, PETER CHEESEMAN and AON BENFIELD AUSTRALIA LTD ACN 003 026 668
File number(s):		NSD 427 of 2011
Judge:		JAGOT J
Date of judgment:		27 October 2011
Catchwords:		PRACTICE AND PROCEDURE – discovery of documents – whether respondents should be required to serve further verified list of documents identifying nature of legal advice said to found claim for legal professional privilege
Legislation:		Federal Court Rules 2011 Rule 20.17
Cases cited:		Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88
Date of hearing:	27 October 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	Mr A Moses SC
Solicitor for the Applicant:	Allans Arthur Robinson
Counsel for the First, Second, Third and Fourth Respondents:	Mr M R Elliott
Solicitor for the First, Second, Third and Fourth Respondents:	Harmers Workplace Lawyers
Solicitor for the Fifth Respondent:	Mr A Woods of Henry Davis York

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 427 of 2011

BETWEEN:

GUY CARPENTER & COMPANY PTY LTD
Applicant

AND:

SCOTT GROVE
First Respondent

JOHN CARROLL
Second Respondent

GRANT HOLLYMAN
Third Respondent

PETER CHEESEMAN
Fourth Respondent

AON BENFIELD AUSTRALIA LTD ACN 003 026 668
Fifth Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	27 OCTOBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Paragraph 3 of the applicant’s interlocutory application be dismissed.

2.The matter be listed from 9.00-10.00 a.m. on Thursday 3 November 2011.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 427 of 2011

BETWEEN:

GUY CARPENTER & COMPANY PTY LTD
Applicant

AND:

SCOTT GROVE
First Respondent

JOHN CARROLL
Second Respondent

GRANT HOLLYMAN
Third Respondent

PETER CHEESEMAN
Fourth Respondent

AON BENFIELD AUSTRALIA LTD ACN 003 026 668
Fifth Respondent

JUDGE:	JAGOT J
DATE:	27 OCTOBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. One outstanding issue in relation to the interlocutory application filed on 19 August 2011 is whether the first to fourth respondents (the Executives) should be required to file and serve a supplementary list of discovered documents which describes the substance of the communications contained in each document and so advances the basis of the Executives’ claim for privilege. The application is made pursuant to Part 20 Rule 20.17(3)(b) of the Federal Court Rules 2011, which provides that a party may apply to the Court, before or after a list of documents has been served, for an order that a more detailed list of documents be provided.       

2. The background against which the application is made is that both the Executives and the fifth respondent have filed and served verified lists which identify the basis upon which privilege is claimed and provide a description and the date of the document.  However, in relation to the documents in respect of which the claim for privilege is based on the provision of legal advice, the Executives’ lists, unlike that of the fifth respondent, do not identify the topic about which the advice is said to have been given. 

3. In support of its application, the applicant relied on the principles relating to the obligations of parties seeking to establish a claim for legal professional privilege which is subject to challenge.  These included the principles relating to privilege recorded at [8] of the decision in Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88.

4. I consider that there is a difference between the obligation of a party providing verified discovery in accordance with the Rules, and the evidentiary onus to which a party may be subject if a claim for legal professional privilege is challenged. In other words, I am satisfied that the Executives’ verified lists comply with their obligation under Rule 20.17(2) of the Federal Court Rules2011.  Accordingly, the application is to be determined on the basis that the applicant seeks to be provided with a more detailed list of documents than would otherwise be required.  The mere fact that the fifth respondent has chosen to provide the additional detail sought is not material to the resolution of this issue.

5. In short, I can see no basis upon which the applicant would be entitled to require the Executives to provide the more detailed list.  Although I accept I have a discretion to make that order, I am not satisfied that any considerations weigh in favour of doing so.  Furthermore, it seems evident that even with a limitation to the date of 11 April 2011 – which the applicant has indicated would be satisfactory – substantial costs would be incurred in the provision of such a list.  Accordingly, para 3 of the applicant’s interlocutory application must also be dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:       4 November 2011