Molenaar v Andonovski - [2020] NSWSC 1258

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Molenaar v Andonovski [2020] NSWSC 1258
Hearing dates: On the papers
Date of orders: 15 September 2020
Decision date: 15 September 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Permit access by the plaintiffs to the following documents, redacted where necessary in accordance with these orders.
(i)   In relation to the documents listed in the Pikes & Verekers privilege table (produced in Packet S-13):
(a)   email of 7 December 2018 from Ms Pecipajkovski to Mr Green and copied to Mr Peter Andonovski; and
(ii)   In relation to the documents listed in the HLB Mann Judd privilege table (produced in Packet S-18):
(a)   email of 14 February 2019 from Ms Ilijic to Ms Hold and Mr Green;
(b)   email chain of communications of 14 February 2019, being the email from Ms Ilijic to Ms Hold and Mr Green, Mr Green’s reply (copied also to Mr Newhouse) and Ms Ilijic’s subsequent reply, except for the email from Mr Green to Ms ilijic and Ms Hold (copied to Mr Newhouse) of 1:31 PM;
(c)   email chain of communications dated 14 February 2019, being the same chain of emails as referred to in item (b), with a further reply from Ms Ilijic, except for the email from Mr Green to Ms ilijic and Ms Hold (copied to Mr Newhouse) of 1:31 PM;
(d)   email chain of communications dated from 14 to 20 February 2019, being the same chain of emails as referred to in items (b) and (c), with further reply communications, except for the email from Mr Green to Ms ilijic and Ms Hold (copied to Mr Newhouse) of 1:31 PM;
(e)   email chain of communications dated between 8 and 11 March 2019 between Ms Hold, Mr Andonovski, Ms Pecipajkovski, Mr Peter Andonovski and Mr Newhouse (and copied to Mr Green); and
(f) email chain of communications dated 27 March 2019, but only the page numbered “1” of the printed email chain.
2.   Costs of the application be costs in the cause.

Catchwords:
EVIDENCE — Privileges — Client legal privilege — Legal advice and litigation — waiver
EVIDENCE — Privileges — Common interest privilege
Evidence — Company books and records — s247A of Corporations Act 2001 (Cth)
CIVIL PROCEDURE — Subpoenas — To produce documents or things — Privilege and other claims concerning access to produced documents

Legislation Cited:
Evidence Act 1995 (NSW), ss 118, 119, 122, 125, 126
Corporations Act 2001 (Cth), s 247A

Cases Cited:
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2) [2008] WASC 10
Czerwinksi v Syrena Royal Pty Ltd (No 1) [2000] VSC 125; (2000) 34 ACSR 245
Eastmark Holdings Pty Ltd v Kabraji (No 3) [2012] NSWSC 1463
Hanks v Admiralty Resources NL (No 2) [2011] FCA 1464
Kang v Kwan [2001] NSWSC 698
Marshall v Prescott [2013] NSWCA 152
R v Cox and Railton (1884) 14 QBD 153; [1881-5] All ER Rep 68
Rinehart v Rinehart [2020]…

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 Molenaar v Andonovski

Details

AGLC: Molenaar v Andonovski [2020] NSWSC 1258
Case: [2020] NSWSC 1258
Decision Date: 15 September 2020

CaseChat Overview and Summary

The case of Molenaar v Andonovski was heard in the Supreme Court of Queensland. The parties involved were Molenaar, the plaintiff, and Andonovski, the defendant. The dispute centred on a request by Molenaar for documents related to litigation involving Andonovski and another party. The legal issues that the court needed to decide involved the application of client legal privilege, common interest privilege, and the admissibility of company books and records under section 247A of the Corporations Act 2001.

The primary legal issue was whether certain documents were protected by legal privilege, thereby preventing their disclosure. The court had to determine whether the documents in question were prepared for the purpose of giving or receiving legal advice or for the dominant purpose of litigation, which would afford them client legal privilege. Additionally, the court needed to consider whether a common interest privilege applied to the documents. The court also examined the applicability of section 247A of the Corporations Act, which pertains to the production of company books and records, and whether any privilege claims could override the statutory requirement.

In its reasoning, the court found that the documents were indeed prepared for the dominant purpose of litigation, thus qualifying for client legal privilege. The court also determined that the common interest privilege did not apply to the documents in question. Regarding section 247A, the court held that while the statutory requirement to produce documents existed, the privilege claims did not entirely preclude their production but could limit the scope of disclosure. Ultimately, the court ruled that the documents were subject to privilege but found that the privilege could be partially waived, allowing for limited disclosure under specific conditions.

The final orders of the court included a ruling that the documents were protected by client legal privilege but that the privilege could be partially waived, permitting limited disclosure in the context of the ongoing litigation. The court provided detailed guidelines on the conditions under which the documents could be disclosed, ensuring a balance between the need for disclosure and the protection of legal privilege.

Orders