Mango Boulevard Pty Ltd v Whitton - [2014] FCA 324

FEDERAL COURT OF AUSTRALIA
Mango Boulevard Pty Ltd v Whitton; In the matter of Spencer (Bankrupt) [2014] FCA 324

Citation: Mango Boulevard Pty Ltd v Whitton; In the matter of Spencer (Bankrupt) [2014] FCA 324

Parties: MANGO BOULEVARD PTY LTD (ACN 101 544 601) and BMD HOLDINGS PTY LIMITED (ACN 010 093 349) v ROBERT WILLIAM WHITTON, RICHARD WILLIAM SPENCER and SILVANA PEROVICH

File number(s): VID 1183 of 2010

Judge(s): GREENWOOD J

Date of judgment: 2 April 2014

Catchwords: PRACTICE AND PROCEDURE – consideration of an application for an order that particular documents the subject of discovery on the part of the applicants in the proceeding be provided to the Court under rule 20.35 of the Federal Court Rules 2011 for the purpose of enabling the Court to determine claims of privilege from production of particular documents

Legislation: Federal Court Rules 2011, r 20.35

Cases cited: Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 - cited
Alstom Power Ltd v Yokogawa Australia Pty Ltd (No 3) [2009] SASC 100; 262 LSJS 265 - cited
Heron Wood Pty Ltd v Ampol Petroleum (Vic) Pty Ltd [1999] VSC 83 – cited
Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 - cited
Formica Ltd v Export Credits Guarantee Department [1995] 1 Lloyd’s Rep 692 - cited

Date of hearing: 17 March 2014

Date of last submissions: 17 March 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 60

Counsel for the Applicants: Ms M Luchich

Solicitor for the Applicants: Minter Ellison

Solicitor for the First Respondent: James Conomos Lawyers

Counsel for the Second and Third Respondents: F Douglas QC with Mr L P Burrow

Solicitor for the Second and Third Respondents: Delta Law

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

VID 1183 of 2010

IN THE MATTER OF THE BANKRUPT ESTATE OF RICHARD WILLIAM SPENCER AND THE BANKRUPT ESTATE OF SILVANA PEROVICH

BETWEEN:
MANGO BOULEVARD PTY LTD (ACN 101 544 601)
First Applicant

BMD HOLDINGS PTY LIMITED (ACN 010 093 349)
Second Applicant

AND:
ROBERT WILLIAM WHITTON
First Respondent

RICHARD WILLIAM SPENCER
Second Respondent

SILVANA PEROVICH
Third Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

2 APRIL 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Documents 1202, 2050, 2053, 2054 and 2057 referred to in the List of Documents and Documents 202, 203, 225 and 226 referred to in the Supplementary List of Documents verified by the affidavits of Jodi Nicole Palmer sworn on 24 March 2012 and 10 April 2013 respectively be produced to the Court pursuant to rule 20.35 of the Federal Court Rules 2011 for inspection within 21 days so as to enable the Court to decide the validity of objections to production of the documents on the ground that each document is privileged from production.
2.The costs of and incidental to paras 1, 3 and 5 of the interlocutory application by the second and third respondents are reserved.

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 Mango Boulevard Pty Ltd v Whitton

Details

AGLC: Mango Boulevard Pty Ltd v Whitton [2014] FCA 324
Case: [2014] FCA 324
Decision Date

CaseChat Overview and Summary

The proceedings in the Federal Court of Australia concern an interlocutory application made by the second and third respondents, Mr Spencer and Ms Perovich, heard on 17 March 2014. The application sought orders for the production of certain documents for the Court's inspection, as well as orders for further discovery and security for costs. The applicants in the principal proceeding, Mango Boulevard Pty Ltd and BMD Holdings Pty Limited, sought particular directions under the Evidence Act 1995 (Cth). The legal issues addressed by the Court were whether certain documents should be produced for inspection by the Court to determine claims of privilege from production, and whether further discovery was required. The Court found that without prejudice privilege attached to certain documents, which had not been waived. It also found that legal professional privilege was made out for certain documents, and that the former trustees had not waived their privilege by disclosing the documents in the circumstances described. The Court declined to order further discovery, finding that Mango and BMD had made discovery as required by the Federal Court Rules 2011 and the Court's orders. The Court ordered that certain documents be produced to the Court for inspection to determine the objection to production on the ground asserted, and reserved the costs of the application for later determination.

Orders