Lanton Productions Pty Ltd v Edward Rushton Pty Ltd
[1996] FCA 337
•9 MAY 1996
CATCHWORDS
PRACTICE AND PROCEDURE - third party discovery - inconsistent grounds of privilege claimed - examination of documents by Court
Grant v Downs (1976) 135 CLR 674 Refd
Lanton Productions Pty Ltd v Edward Rushton Pty Ltd; Electronic Learning Systems International Pty Ltd; Graeme Charles Pitts, Moorgate Finance Pty Ltd and Frank Edge
No QG 160 of 1992
Kiefel J Brisbane 9 May 1996
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 160 of 1992
BETWEEN:LANTON PRODUCTIONS PTY LTD
Applicant
AND:EDWARD RUSHTON PTY LTD
First Respondent
AND:ELECTRONIC LEARNING SYSTEMS INTERNATIONAL PTY LTD
Second Respondent
AND:GRAEME CHARLES PITTS
Third Respondent
AND:MOORGATE FINANCE PTY LTD
Fourth Respondents
AND:FRANK EDGE
Fifth Respondent
AND:FRANK EDGE
First Cross-Claimant
AND:MOORGATE FINANCE PTY LTD
Second Respondent to the First Cross-Claim
AND:EDWARD RUSHTON PTY LTD
Second Cross-Claimant
AND:MOORGATE FINANCE PTY LTD
First Respondent to the Second Cross-Claim
AND:FRANK EDGE
Second Respondent to the Second Cross-Claim
AND:EDWARD RUSHTON PTY LTD
Third Cross-Claimant
AND:ELECTRONIC LEANING SYSTEMS INTERNATIONAL PTY LTD
First Respondent to the Third Cross-Claim
AND:GRAEME CHARLES PITTS
Second Respondent to the Third Cross-Claim
AND:ELECTRONIC LEARNING SYSTEMS INTERNATIONAL PTY LTD
Fourth Cross-Claimant
AND:EDWARD RUSHTON PTY LTD
First Respondent to the Fourth Cross-Claim
AND:GRAEME CHARLES PITTS
Fifth Cross-Claimant
AND:EDWARD RUSHTON PTY LTD
First Respondent to the Fifth Cross-Claim
AND:ELECTRONIC LEARNING SYSTEMS INTERNATIONAL PTY LTD
Sixth Cross-Claimant
AND:LANTON PRODUCTIONS PTY LTD
First Respondent to the Sixth Cross-Claim
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 9 May 1996
WHERE MADE: Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The documents listed as numbers 1-21 inclusive in the list of documents filed on 21 April 1994 be produced for the inspection of the first respondent Edward Rushton Pty Ltd at the solicitors' office of the respondents to the application within fourteen days from the date hereof or such other time and place as may mutually be agreed, save that, with respect to the documents listed below, only that part identified is required to be produced for inspection:
Document 5 - the first paragraph together with that part of the document headed "Lanton matter";
Document 7 - the first paragraph and that part entitled "Legal Action - Lanton Productions Pty Ltd";
Document 15 - the handwritten note only;
Document 21
Page 4- That part entitled "Lanton Productions Pty Ltd" to the end of the paragraph entitled "legal discovery" (at the top of page 6);
Page 7- That appearing under the heading "Background";
Page 8- That appearing under the heading "Legal Action";
Page 10- That appearing under the heading "Lanton Productions Pty Ltd";
Page 13- Last two "·" points in the paragraph on that page under the heading "Downside if forced sale";
Page 14- The last paragraph commencing with the word "Encouragement";
Schedule ARe Lanton Pty Ltd;
The document entitled "Lease and Asset Purchase" in so far as it refers to Lanton at the foot;
Page 16- That appearing under the heading "Asset Purchase - Lanton Productions Pty Ltd"
The respondents to the application for production pay the first respondents' costs of and incidental to the motion to be taxed including reserved costs.
The costs associated with the production, inspection and copying of the documents be paid by the first respondent.
The documents comprising Exhibit A be released.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 160 of 1992
BETWEEN:LANTON PRODUCTIONS PTY LTD
Applicant
AND:EDWARD RUSHTON PTY LTD
First Respondent
AND:ELECTRONIC LEARNING SYSTEMS INTERNATIONAL PTY LTD
Second Respondent
AND:GRAEME CHARLES PITTS
Third Respondent
AND:MOORGATE FINANCE PTY LTD
Fourth Respondents
AND:FRANK EDGE
Fifth Respondent
AND:FRANK EDGE
First Cross-Claimant
AND:MOORGATE FINANCE PTY LTD
Second Respondent to the First Cross-Claim
AND:EDWARD RUSHTON PTY LTD
Second Cross-Claimant
AND:MOORGATE FINANCE PTY LTD
First Respondent to the Second Cross-Claim
AND:FRANK EDGE
Second Respondent to the Second Cross-Claim
AND:EDWARD RUSHTON PTY LTD
Third Cross-Claimant
AND:ELECTRONIC LEANING SYSTEMS INTERNATIONAL PTY LTD
First Respondent to the Third Cross-Claim
AND:GRAEME CHARLES PITTS
Second Respondent to the Third Cross-Claim
AND:ELECTRONIC LEARNING SYSTEMS INTERNATIONAL PTY LTD
Fourth Cross-Claimant
AND:EDWARD RUSHTON PTY LTD
First Respondent to the Fourth Cross-Claim
AND:GRAEME CHARLES PITTS
Fifth Cross-Claimant
AND:EDWARD RUSHTON PTY LTD
First Respondent to the Fifth Cross-Claim
AND:ELECTRONIC LEARNING SYSTEMS INTERNATIONAL PTY LTD
Sixth Cross-Claimant
AND:LANTON PRODUCTIONS PTY LTD
First Respondent to the Sixth Cross-Claim
CORAM:Kiefel J.
DATE:9 May 1996
PLACE:Brisbane
FURTHER REASONS FOR JUDGMENT
Consistent with my preliminary views in this matter published on 3 May 1996 the respondents to the application produced to the Court the twenty one documents in question. There appears to me to have been no basis for claiming the privilege on either of the grounds claimed. Those said to have been the subject of without prejudice discussions between Lanton and AGC were not observably referable to the resolution of any particular dispute between them. Rather the correspondence comprised allegations made by Mr Birt by which, putting it at its highest, it was hoped to influence AGC or
Westpac in relation to monies Mr Birt's companies may have owed to them as financiers. There is simply no basis shown for legal professional privilege save in one respect and concerning document 15. The typewritten parts of that document do appear to record advices from solicitors and the steps to be taken in consequence appear inextricably linked to the advices. Document 18 requires specific mention. It is a lengthy record of conversations at a meeting between another respondent in the litigation, AGC and AGC's solicitors. The meeting was promoted by Mr Birt. Whilst some legal advice may have been obtained at the conclusion of the meeting, this does not satisfy the "sole purpose" test (Grant v Downs(1976) 135 CLR 674, 687-9) where, as here, it appears it was also to inform AGC of allegations concerning its servants or agents. It also occurred to me that that other respondent and Lanton may have been engaged in without prejudice discussions in the litigation, but I am unable to sufficiently connect the discussions with AGC with any such negotiations. Document 21 refers to the whole of the Birt group of companies and a larger number of unassociated dealings. I cannot see that the financing of the group, as distinct from Lanton, can be said to relate to any issue in the proceedings even in the wider sense of that term.
I shall then order that the documents listed as numbers 1-21 inclusive in the list of documents filed on 21 April 1994 be produced for the inspection of the first respondent Edward Rushton Pty Ltd at the office of AGC's solicitors and within fourteen days from the date hereof, or such other time and place as may mutually be agreed, save that, with respect to the documents listed below, only that part identified is required to be produced for inspection:
Document 5 - the first paragraph together with that part of the document headed "Lanton matter";
Document 7 - the first paragraph and that part entitled "Legal Action - Lanton Productions Pty Ltd";
Document 15 - the handwritten note only;
Document 21
Page 4- That part entitled "Lanton Productions Pty Ltd" to the end of the paragraph entitled "legal discovery" (at the top of page 6);
Page 7- That appearing under the heading "Background";
Page 8- That appearing under the heading "Legal Action";
Page 10- That appearing under the heading "Lanton Productions Pty Ltd";
Page 13- Last two "·" points in the paragraph on that page under the heading "Downside if forced sale";
Page 14- The last paragraph commencing with the word "Encouragement";
Schedule ARe Lanton Pty Ltd;
The document entitled "Lease and Asset Purchase" in so far as it refers to Lanton at the foot;
Page 16- That appearing under the heading "Asset Purchase - Lanton Productions Pty Ltd"
My concerns earlier expressed, that the inconsistencies in the grounds for privilege claimed might suggest that there was no valid basis at all, has largely been shown to be correct. I propose to order that the respondents to the application for production pay the first respondents' costs of and incidental to the motion to be taxed including reserved costs.
I certify that this and the preceding three pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date:9 May 1996
Counsel for the First Respondent: Mr L Bowden
Solicitors for the First Respondent: Bowdens
Counsel for Australian Guarantee
Corporation Limited and AGC (Advances)
Limited:Mr A Ryan
Solicitors for the respondents: Clayton Utz
Date of Hearing: 7 May 1996
Place of Hearing: Brisbane
Date of Judgment: 9 May 1996
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