Lake Cumbeline P/L v Effem Foods P/L - [1994] FCA 837

LAKE CUMBELINE PTY LIMITED, IDOBOOK PTY LIMITED, PETER HORROBIN, RICHARD SANDS
AND RAYMOND PRIDMORE v EFFEM FOODS PTY LIMITED trading as UNCLE BEN'S OF
AUSTRALIA
No. NG129 of 1990
FED No. 837/94
Number of pages - 14
Privilege - Corporations
(1994) 13 ACLC 55 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
TAMBERLIN J

CATCHWORDS

Privilege - legal professional privilege - whether privilege can be maintained in respect of documents where the privilege is held by a dissolved company.

Privilege - legal professional privilege - claim for reimbursement of legal costs in previous proceedings as damages in present proceedings - disclosure of memoranda of fees relating to previous litigation - whether unfair to maintain privilege - whether implied or imputed waiver of privilege.

Corporations - dissolution of company - whether legal professional privilege which is held by a company at the time of its dissolution vests in the Australian Securities Commission upon dissolution.

Corporations Law ss 9, 576

Bullivant v Attorney-General (Vic) (1901) AC 196
Prus-Grzybowski v Everingham (1987) 44 NTR 7
Baker v Evans (1988) 77 ALR 565
Attorney-General (N.T.) v Maurice (1986) 161 CLR 475
Goldberg and Ors v Ng and Ors (Unreported 11 July 1994 CA (NSW))
Packer v Deputy Commissioner of Taxation (1985) 1 Qd R 275

HEARING

SYDNEY, 4 November 1994
#DATE 14:11:1994

Counsel for Applicants : Mr A J Sullivan QC

Mr J B Whittle

Solicitors for Applicants : Blake Dawson Waldron

Counsel for Respondent : Mr R J Bainton QC

Mr R M Smith Ms J Deamer

Solicitors for Respondent : Sly and Weigall

ORDER

1. The respondent's application for inspection be dismissed. 2. The costs of this application be reserved.
NOTE : Settlement and entry of orders is dealt with in Order 36 of

JUDGE1

The Nature of the Proceedings
TAMBERLIN J The respondent ("UBA") seeks to have produced for inspection a large number of documents which relate to claims for damages, by the applicants in the present proceedings, comprising legal costs and disbursements and moneys lent or paid by the applicants concerning a number of legal proceedings said to arise out of or relate to investments by them in Trawl Investments Australia Pty Limited ("Trawl") in 1987 and subsequent years. Trawl went into liquidation and was dissolved in April 1994. Trawl is not a party to the present proceedings before me.

In 1989 Trawl brought proceedings for repudiation of contract against UBA in the New South Wales Supreme Court. These were heard by Cole J in the Commercial Division and were unsuccessful. An appeal was taken to the New South Wales Court of Appeal and this appeal too was unsuccessful. Trawl was held liable to pay the costs of those proceedings.
The individual applicants at all material times were directors of Trawl and guarantors of the debts and obligations of Trawl.
The applicants allege that they were induced to invest in and/or to continue their investment in Trawl by reason of deceptive and misleading…

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.

Continue reading Lake Cumbeline P/L v Effem Foods P/L

Details

AGLC: Lake Cumbeline P/L & Ors v. EFFEM Foods P/L [1994] FCA 837 ((1994) 13 ACLC 55)
Case: [1994] FCA 837
Decision Date: 14 NOVEMBER 1994

CaseChat Overview and Summary

Lake Cumbeline P/L and Effem Foods P/L were before the court in a dispute concerning the maintenance of legal professional privilege over certain documents. The documents in question were held by Lake Cumbeline P/L, a company that had since been dissolved. The central issue was whether legal professional privilege could be maintained over these documents when the company that held the privilege no longer existed.

The court was tasked with determining whether the dissolution of Lake Cumbeline P/L had any bearing on the maintenance of legal professional privilege over the documents in question. This involved examining the principles of legal professional privilege and whether the privilege could be preserved despite the dissolution of the company. The court considered the nature of legal professional privilege, which is intended to protect the confidentiality of communications between a client and their legal adviser. The court also considered whether the privilege could be transferred or if it would be lost upon the dissolution of the company.

The court ruled that the privilege could be maintained despite the dissolution of Lake Cumbeline P/L. The court found that the privilege was a property right that could be held independently of the company and that the dissolution of the company did not automatically terminate the privilege. The court held that the privilege could continue to be protected and enforced, even in the absence of the company that originally held it. Consequently, the court dismissed the application for inspection of the documents and reserved the costs of the application for further consideration.

Orders

Orders of the court

1. The respondent's application for inspection be dismissed. 2. The costs of this application be reserved.

NOTE : Settlement and entry of orders is dealt with in Order 36 of

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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