Harrington v Rich

Case [2008] FCAFC 61

FEDERAL COURT OF AUSTRALIA

Harrington v Rich [2008] FCAFC 61

PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory decision – principal proceedings settled after argument had concluded on the application for leave – whether Court should exercise its discretion to proceed to judgment

Constitution, Ch III

Corporations Act 2001 (Cth), s 657A (2)(b)
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 46PO
Judiciary Act 1903 (Cth), s 78B
Sex Discrimination Act 1984 (Cth)

Attorney-General (Cth)vAlinta Ltd (2008) 242 ALR 1 distinguished
Australian Pipeline Ltd v Alinta (2006) 159 FCR 301 referred to
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 discussed
Bonan v Hadgkiss (2007) 160 FCR 29 discussed
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Esso Australia Resources Ltd v Plowman (1995) 128 ALR 391 followed
Federal Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573 cited
Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [2002] ATPR 40,501 (41-733); [1999] FCA 1652 discussed
Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 438 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 cited
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 cited
Rich v Harrington [2007] FCA 1987 discussed
Vanstone v Clark (2005) 147 FCR 299 discussed

ANTHONY HARRINGTON & OTHER RESPONDENTS (OTHER THAN CAMERON ANTHONY CLYNE, DONAL GRAHAM, ANTHONY JOHN RUMBLE AND FRASER GRAHAM ROSS) v CHRISTINA MADELEINE RICH

NSD 2522 OF 2007

SACKVILLE, EMMETT & JACOBSON JJ
18 APRIL 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2522 OF 2007

BETWEEN:

ANTHONY HARRINGTON & THE 675 OTHER RESPONDENTS IN NSD 1865 OF 2005 (OTHER THAN CAMERON ANTHONY CLYNE, DONAL GRAHAM, ANTHONY JOHN RUMBLE AND FRASER GRAHAM ROSS)
Applicants

AND:

CHRISTINA MADELEINE RICH
Respondent

JUDGES:

SACKVILLE, EMMETT & JACOBSON JJ

DATE OF ORDER:

18 APRIL 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal from the judgment of Branson J delivered on 13 December 2007 and from the orders made on 14 December 2007 be stayed permanently.

2.Order 2 made by Edmonds J on 10 January 2008 be amended so as to stay permanently Orders 1 and 4 made by Branson J on 14 December 2007.

3.The cross-appeal filed on 29 January 2008 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2522 OF 2007

BETWEEN:

ANTHONY HARRINGTON & THE 675 OTHER RESPONDENTS IN NSD 1865 OF 2005 (OTHER THAN CAMERON ANTHONY CLYNE, DONAL GRAHAM, ANTHONY JOHN RUMBLE AND FRASER GRAHAM ROSS)
Applicants

AND:

CHRISTINA MADELEINE RICH
Respondent

JUDGES:

SACKVILLE, EMMETT & JACOBSON JJ

DATE:

18 APRIL 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

THE INTERLOCUTORY JUDGMENT

  1. On 17…

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AGLC
Harrington v Rich [2008] FCAFC 61
Case
[2008] FCAFC 61
Decision Date

CaseChat Overview and Summary

The case of Harrington v Rich involved the Partners, who were contesting an interlocutory judgment made by Branson J, regarding the disclosure of certain documents. The Partners sought leave to appeal from the interlocutory judgment, arguing that the substantive proceedings had been resolved but that there were issues surrounding the costs of the proceedings and the uncertainty created by Branson J’s judgment regarding legal professional privilege. The court had to decide whether the Partners' application for leave to appeal should be granted, and if the interlocutory orders should be stayed.

The court considered the factors that suggested the interlocutory orders should be stayed, including the complete resolution of substantive proceedings and the lack of any remaining issues regarding costs. The court also considered the Partners’ argument that Branson J’s judgment created uncertainty regarding legal professional privilege, but found that her judgment was fact-specific and did not lay down broad general principles. The court compared the present case with the case of Attorney-General v Alinta, where the Attorney-General’s application for special leave was granted, but found the circumstances of the two cases to be different.

The court decided that the application for leave to appeal should be stayed permanently, and that Orders 1 and 4 made by Branson J should be permanently stayed. The court dismissed the cross-appeal filed by the Partners.

Orders

Orders of the court

1. The application for leave to appeal from the judgment of Branson J delivered on 13 December 2007 and from the orders made on 14 December 2007 be stayed permanently.

2. Order 2 made by Edmonds J on 10 January 2008 be amended so as to stay permanently Orders 1 and 4 made by Branson J on 14 December 2007.

3. The cross-appeal filed on 29 January 2008 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As we have noted, the Partners point to several factors that they say justify the Court proceeding to judgment in this case. However, there are other circumstances which suggest that the Court should not accept the Partners’ invitation to proceed to judgment.Circumstances Militating Against Proceeding to Judgment First, the substantive proceedings between the parties have been completely resolved. There is no remaining issue as to the costs of the proceedings: cf Vanstone v Clark (2005) 147 FCR 299; Minister for Immigration v Al Masri (2003) 126 FCR 54, at 62 [20]-[21], per curiam; Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573, at 577 [16] (in each of these cases costs remained in issue). Secondly, the Partners have not been granted leave to appeal. They require leave because the orders made by Branson J were interlocutory in character: Federal Court of Australia Act 1976 (Cth), s 24(1A). One of the criteria to be applied on an application for leave to appeal from an interlocutory judgment is whether substantial injustice would result if leave were to be refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, at 398-399, per curiam. As the Court point out in the letter of 31 March 2008 to the Partners’ solicitors, it is difficult to see how any substantial injustice can be occasioned to the Partners if leave is refused, given that the substantive proceedings have been resolved. Even if the orders made by Branson J are not stayed indefinitely, Ms Rich, except with the leave of the Court, cannot make any use of the Documents since the proceedings have been terminated by the consent orders. If necessary, the position can be put beyond doubt by this Court permanently staying Branson J’s orders on the ground that they can no longer serve any useful purpose. Thirdly, the Partners say that the primary judgment creates significant uncertainty as to whether solicitors within OGC will be able to give advice that attracts privilege, in the event of an allegation being made regarding the conduct of a partner of PwC. Branson J’s judgment, insofar as it addresses the role of OGC, is (as might be expected) fact specific. Her Honour emphasises (at [59]) the fact that allegations were made by one partner (Ms Rich) against the others; that the allegations cast aspersions of a personal rather than of a purely professional kind against certain of the Partners; and that General Counsel and her deputy were likely to be respondents in any litigation instituted by Ms Rich. Whatever the merits of her Honour’s conclusions, they do not purport to lay down broad general principles governing the subsistence of legal professional privilege in relation to advice given by legally qualified members of a firm to other members of the firm. Authorities It is instructive to compare the circumstances presented by the present case with those of the cases relied on by the Partners. In Attorney-General v Alinta, the Attorney-General intervened in the proceedings in the Full Federal Court between Australian Pipeline Ltd (‘APL’) and Alinta Ltd (‘Alinta’). The Full Court, among other orders, declared s 657A(2)(b) of the Corporations Act 2001 (Cth) to be invalid on constitutional grounds: Australian Pipeline Ltd v Alinta (2007) 159 FCR 301, at 395-396 [433], per Gyles and Lander JJ. Both the Attorney-General and Alinta sought special leave to appeal to the High Court. The Attorney-General’s application for special leave was granted, while Alinta’s was referred for argument before a Full High Court: Attorney-General v Alinta, at 17 [62], per Hayne J.

Ratio Decidendi

Legal Principle Established

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