Ingot Capital v Macquarie Equity - [2008] NSWSC 25

CITATION: Ingot Capital v Macquarie Equity [2008] NSWSC 25

HEARING DATE(S): 25 January 2008

JUDGMENT DATE :
25 January 2008

JURISDICTION: 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 960

PARTIES: NCRA - 36th Cross-claimant
Guy Carpenter Parties

FILE NUMBER(S): SC 50169/01

COUNSEL: D Cook - 36th Cross-Claimant
L P Menzies - for Guy Carpenter Parties

SOLICITORS: 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…

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: [2008] NSWSC 25
Decision Date: 25 January 2008

CaseChat Overview and Summary

In the matter of Ingot Capital v Macquarie Equity, the Federal Court of Australia was called upon to consider the extent of client legal privilege in the context of witness evidence. Ingot Capital, the plaintiff, sought to call a witness to provide evidence in their case against Macquarie Equity, the defendant, regarding the alleged failure to provide proper advice on investments. The dispute centred around the production of documents relating to the witness's availability and willingness to give evidence, and whether these documents were subject to privilege and therefore not required to be disclosed.

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