CITATION: Meteyard & Ors v Love & Ors [2005] NSWCA 444
FILE NUMBER(S): 40296/05
HEARING DATE(S): 6 June 2005, 7 June 2005
JUDGMENT DATE: 13/12/2005
PARTIES: Alan Meteyard (First Claimant) Lawrence Holland (Second Claimant) Andrew Bart (Third Claimaint) Guy Raynal (Fourth Claimant) Bruce McKensey (Fifth Claimant) Crawford & Company (Australia) Pty Limited (Sixth Claimant) McKensey Mining Services Pty Limited (Seventh Claimant) QBE Insurance (Australia) Limited (Eighth Claimant) Andrew John Love, Peter Ivan Felix Geroff and Alan Edward Lewis in their capacity as Receivers and Managers of Southland Coal Pty Ltd (Receivers and Managers Appointed) (In liquidation) ABN 39 000 777 225 (Opponents)
COUNSEL: J. E. Marshall SC/P. Kulevski (Claimants) R.G. Forster SC/J. A. Soars (Opponents)
SOLICITORS: Wotton & Kearney (Claimants) Henry Davis York (Opponents)
CATCHWORDS: CORPORATIONS – application to set aside examination summonses made pursuant to s596B of the Corporations Act - whether summonses satisfied the jurisdictional requirements of s596B – whether claimants ‘may be able to give information about the examinable affairs of the corporation’ - meaning of ‘examinable affairs’ – whether s596B operates so as to exclude client legal privilege – client legal privilege under the Evidence Act 1995 (NSW) – whether significant number of communications the subject of the summonses and orders for production were likely to be privileged – whether summonses were oppressive or otherwise an abuse of process PRIVILEGE – consideration of sections 117 and 118 the Evidence Act 1995 (NSW) – whether Evidence Act 1995 (NSW) or Evidence Act 1995 Act (Cth) applies – whether Corporations Act excludes operation of Evidence Act –whether client legal privilege provides an immunity from answering questions under s596B of the Corporations Act – whether an examination is a ‘proceeding’ for the purposes of the Evidence Act – whether the reports the subject of a possible claim for privilege obtained by solicitor acting on instructions of client – consideration of use of solicitors to obtain reports as a mere ‘stratagem’ or ‘sham’ – whether claimants agents of the client or agents of its solicitors – consideration of the definitions of ‘agent’, ‘client’ and ‘lawyer’ in s117 of the Evidence Act and under common law PROCEDURE – order for production under Part 36 rule 12 of the Supreme Court Rules – whether privilege attaches to documents the subject of the order – consideration of Part 36 rule 13 - whether significant number of communications the subject of the orders for production were likely to be privileged – whether orders were oppressive or otherwise an abuse of process
[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 Meteyard v Love
Sign in free to access the full text
Details
AGLC
Meteyard v Love [2005] NSWCA 444
Case
[2005] NSWCA 444
Decision Date
CaseChat Overview and Summary
The case involved eight claimants, including an insurer, an insurance loss assessor, and a mining consulting company, who were served with examination summonses and orders for the production of documents concerning the affairs of Southland Coal. The receivers and managers of Southland Coal, as opponents, had obtained these summonses and orders. The claimants sought to have these set aside, arguing that the summonses and orders did not satisfy the jurisdictional requirements of section 596B of the *Corporations Act 2001* (Cth), that many of the communications sought were likely to be subject to client legal privilege, and that the process was oppressive or an abuse of process.
The primary legal issues before the court were whether the examination summonses and orders for production met the threshold requirements of section 596B of the *Corporations Act*, specifically whether the claimants "may be able to give information about the examinable affairs of the corporation." A significant question also arose as to whether client legal privilege, as established under the *Evidence Act 1995* (NSW) and (Cth), operated to exclude the operation of section 596B and provided an immunity from answering questions or producing documents. The court also considered whether the *Evidence Act* applied to examinations under the *Corporations Act* and whether the documents sought were privileged, particularly in light of how they were obtained.
The court determined that the jurisdictional basis for the issue of each summons, requiring that the proposed examinees have relevant information, had not been sufficiently made out. While the court acknowledged the importance of client legal privilege, it ultimately found that the orders for production made by the Deputy Registrar should be set aside. The court granted leave to appeal the primary judge's decision, set aside the orders for production and the order for costs made by the primary judge, and otherwise dismissed the appeal with no order as to costs, indicating that the same result should have obtained at first instance.
Orders
Orders of the court
(1) Grant leave to appeal in relation to the judgment and orders of the primary judge made on 31 March 2005
(2) Direct that the Claimants file a notice of appeal in accordance with Part 51, r 5(2)
(3) Subject to the filing of the notice of appeal, order that
(a) so much of the judgment and orders of the primary judge as dismissed the challenge to the orders for production made by the Deputy Registrar on 18 January 2005 be set aside and in lieu thereof order that each of the orders for production be set aside
(b) set aside the order for costs made by the primary judge, and
(c) otherwise dismiss the appeal, with no order as to costs
Background
Background to the litigation
These proceedings concern the issue of a number of summonses and orders for production of documents in relation to the affairs of Southland Coal. The receivers and managers of Southland Coal were responsible for the issue of each summons and order for production and are the Opponents in this Court. The eight Claimants are those persons on whom the examination summonses were served and comprise QBE, which had issued the insurance policy; Crawford & Co Australia Pty Ltd, an insurance loss assessor; McKensey Mining Services Pty Ltd, a company providing consulting services in relation to the mining industry, and various individuals associated with those three corporations.Background The extraction of coal in the mine was undertaken pursuant to a system of mining known as “long-wall extraction” which involved a sophisticated machine, known as a long-wall miner, which stripped the coal mechanically across the face of the seam. According to the most recent loss assessment by Aon, engaged by Theiss Southland, the loss was $42,214,590. Of that amount, $27,260,000 was attributed to the indemnity value of the long-wall equipment, together with $4,000,000 as the estimated cost of importation of new equipment. The risk assessor was of the opinion that the equipment was physically lost or damaged beyond economic repair or recovery. The various summonses for examination and orders for production were obtained from a Deputy Registrar of the Court on 18 January 2005 at a time when it was not clear whether QBE would deny or seek to limit its liability under the policy. The Claimants did not seek to obtain a copy of the affidavit made in support of the applications, the affidavit not being available to them except pursuant to a court order under s 596C of the Corporations Act 2001 (Cth). Such an order might or might not have been forthcoming: see Re Leisure Developments (Qld) Pty Ltd (in liq) (2002) 41 ACSR 276. Rather, they took the course of seeking to have each summons and order set aside, pursuant to an interlocutory process filed on 10 February 2005. Those applications were heard by Young CJ in Eq on 21 February 2005. Four days after the hearing, on 25 February 2005, the solicitors for QBE wrote to solicitors for the various mining interests, including Southland Coal, advising them that QBE:(a)contended that the exclusion under clause 14 of the policy in relation to loss arising out of “mining conditions known as creep and/or heave” applied;(b)non-disclosure of an earlier report (which had been the subject of correspondence between the parties) was not to be relied on as a breach of s 28(3) of the Insurance Contracts Act 1984 (Cth); and(c)QBE reserved its position with respect to other possible non-disclosures or misrepresentations and as to whether the insured parties had taken “reasonable precautions” under condition 11 of the policy.The Court was advised that this document was provided to the primary judge, but that no further submissions were made with respect to its significance. His Honour handed down judgment on 31 March 2005, rejecting the challenges to both summonses and orders.Issues
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Nor am I satisfied that the jurisdictional basis for the issue of each summons, namely that the proposed examinees do not have relevant information to convey, has been made out. It is not appropriate, on the arguments presented, to seek to distinguish between the positions of individual Claimants. Accordingly, the challenge to the primary judge’s decision with respect to the examination summonses should be dismissed.Conclusions The conclusions reached above involve success for the Claimants with respect to the orders for production, but not with respect to the examination summonses. The separate issues have been treated as part of a single process and must, accordingly, be subject to a single order for costs. On one view, the Claimants are entitled to their costs in relation to so much of the proceedings as resulted in success and the Opponents with respect to the remainder of the proceedings. I would make no order as to the costs of the appeal. Because the same result should have obtained below, I would also make no order as to the costs of the proceedings before the primary judge. Accordingly, I would propose the following orders:(1)Grant leave to appeal in relation to the judgment and orders of the primary judge made on 31 March 2005;(2)Direct that the Claimants file a notice of appeal in accordance with Part 51, r 5(2); Subject to the filing of the notice of appeal:(a)order that so much of the judgment and orders of the primary judge as dismissed the challenge to the orders for production made by the Deputy Registrar on 18 January 2005 be set aside and in lieu thereof order that each of the orders for production be set aside;(b) set aside the order for costs made by the primary judge, and(c) otherwise dismiss the appeal, with no order as to costs.