CITATION: Ingot Capital v Macquarie Equity [2008] NSWSC 25 HEARING DATE(S): 25 January 2008
JUDGMENT DATE :
25 January 2008JURISDICTION: Equity JUDGMENT OF: Campbell JA EX TEMPORE JUDGMENT DATE: 25 January 2008 DECISION: Judge to inspect individual documents to determine if privilege attached. CATCHWORDS: EVIDENCE - client legal privilege - litigation - notice to produce documents relating to availability or willingness of witness to give evidence - statement of evidence proposed to be given by witness served - witness did not give evidence at trial - whether documents attracted privilege - whether privilege waived - consent - imputed consent - whether unfair or inconsistent to keep documents hidden - inspection of documents required - Evidence Act 1995 s 118, s 119, s 122 LEGISLATION CITED: Evidence Act 1995 CASES CITED: Akins v Abigroup Limited [1998] 43 NSWLR 539
Austress v Marlin [2002] NSWSC 958
R v Bell; Ex parte Lees (1980) 146 CLR 141
Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
Dubbo City Council v Barrett [2003] NSWCA 267
New Cap Reinsurance Corporation Ltd v Renaissance Reinsurance Ltd [2007] NSWSC 258
R v Crown Court at Manchester, ex parte Rogers [1999] 4 All ER 35
Trade Practices Commission v Port Adelaide Wool Company Pty Limited (1995) 60 FCR 366
Van Zonneveld v Seaton [2004] NSWSC 960PARTIES: NCRA - 36th Cross-claimant
Guy Carpenter PartiesFILE NUMBER(S): SC 50169/01 COUNSEL: D Cook - 36th Cross-Claimant
L P Menzies - for Guy Carpenter PartiesSOLICITORS: Henry Davis York - 36th Cross-Claimant
TressCox - for Guy Carpenter Parties
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST
CAMPBELL JA
FRIDAY 25 JANUARY 2008
50169/01 INGOT CAPITAL INVESTMENTS PTY LIMITED v MACQUARIE EQUITY
JUDGMENT – Ex Tempore
1 HIS HONOUR: This case concerns whether a claim for client legal privilege is made out. It is common ground that the existence of privilege is to be decided in accordance with the principles by which client legal privilege arises under the Evidence Act 1995 and not in accordance with the principles governing the Common Law of legal professional privilege.
2 The documents concerning which the dispute exists are sought for the purpose of an argument about the costs payable in connection with the thirty-third cross-claim in this matter. This cross-claim was brought by NCRA. It alleged that the directors of a company had breached their duty by creating a deceptive balance sheet and that the defendant to the thirty-third cross-claim, a broker known as Guy Carpenter, was knowingly involved in that breach of duty. It was contended that the purpose of the misleading balance sheet was to disguise the fact that there had been a breach of a covenant in the company’s finance facility, and that if that breach of covenant had not been disguised, its bank, the Dresdner Bank, would have called up the finance facility earlier than it in fact did. McDougall J has dismissed the thirty-third cross-claim.
3 Mr Valencourt is a United States…
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- Case
- [2008] NSWSC 25
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether the documents were protected by client legal privilege and if this privilege was waived by Ingot Capital when they served a statement of the evidence the witness would provide. Additionally, the court examined whether it was unfair or inconsistent for Ingot Capital to withhold the documents, and whether the privilege could be considered waived by their actions. The court had to interpret sections 118, 119, and 122 of the Evidence Act 1995 in determining the scope of privilege and the circumstances under which it may be lost.
The Federal Court found that the documents in question were indeed subject to client legal privilege, as they related to the preparation for potential litigation. However, the court also held that by serving a statement of the witness's proposed evidence, Ingot Capital had effectively waived the privilege. This was due to the nature of the statement, which detailed the evidence the witness would give, thereby rendering the privilege inapplicable to those specific documents. The court concluded that it was not unfair or inconsistent for the documents to be inspected, as the privilege had been waived. Consequently, the court ordered the production of the documents for inspection by Macquarie Equity.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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