Pascoe v Boensch (No. 2)

[2007] FMCA 1409

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v BOENSCH & ANOR (No.5) [2007] FMCA 1409

BANKRUPTCY – EVIDENCE – whether documents the subject of legal professional privilege –where the question of the validity of the declaration of a trust an essential integer of the decision in relation to legal professional privilege – where separate decision on that question ordered pursuant to Pt 17 Federal Magistrates Court Rules 2001.

Evidence Act 1995, s.125
Federal Magistrates Court Rules 2001, Pt 17

Applicant: SCOTT DARREN PASCOE

First Respondent: FRANZ BOENSCH

Second Respondent: SABINE BOENSCH

File number: SYG 1995 of 2006

Judgment of: Raphael FM

Hearing date: 10 August 2007

Date of last submission: 10 August 2007

Delivered at: Sydney

Delivered on: 10 August 2007

REPRESENTATION

Counsel for the Applicant: Mr J Johnson

Solicitors for the Applicant: McLean & Associates

Counsel for First & Second Respondents: Mr M Heath

Solicitors for the First Respondent: Wright Commercial Lawyers

Solicitors for the Second Respondent: Shanahan Tudhope

ORDERS

1. Applicant and trustee to file written submissions on the amended interlocutory application on or before 17 August 2007.

2. Respondents to file written submissions on or before 24 August 2007.

3. Proceedings to continue by the hearing of a separate question pursuant to Pt 17 Federal Magistrates Court Rules.  Such question to be formulated by the parties on or before 31 August 2007 and in default the matter restored for directions on 6 September 2007 at 9.30am.

4. Subpoenas and notices to produce returnable before the Registrar on 12 September 2007.

5. Any evidence in support of the separate question to be filed and served on or before 16 September 2007.

6. Parties to file with my associate and serve outline of case and list of authorities on the separate question on or before 31 October 2007.

7. The matter be listed for hearing on 20-21 November 2007 at 10.15am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1995 of 2006

SCOTT DARREN PASCOE

Applicant

And

FRANZ BOENSCH

First Respondent

SABINE BOENSCH

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

1. I have just completed, subject to submissions, the hearing of a lengthy interim application for a declaration that certain documents are the subject of legal professional privilege.  The proceedings in which this application is made relate to the ownership of certain property which the bankrupt and the second respondent, his former wife, claim was placed into a trust for the benefit of their children in 1999.  The application for the declarations related to certain legal advice received by the first applicant in about 2004 as a result of which certain actions took place in relation to the property that purported to confirm the trust allegedly created in 1999.

2. It is the submission of the trustee that the activities of 2004 were activities that would fall within the ambit of s.125 of the Evidence Act1995 (Cth) and would thus result in the loss of any legal professional privilege. Evidence was produced in relation to these matters. At the end of the hearing I came to the conclusion that the validity, or otherwise, of the declaration of trust of 1999 was an essential integer of any decision in relation to the existence, or otherwise, of legal professional privilege. It seemed to me that if the declaration of trust was found to have been valid then it mattered not, save in a very narrow compass described by Mr Johnson, what the parties thought at the meetings and by the actions which were evidenced in the documents.

3. It is my understanding from discussion with Mr Johnson and Mr Heath that that proposition is generally accepted. In those circumstances I propose to take the somewhat, but not completely unusual, step of ordering a separate decision on a question pursuant to Pt 17 of the Federal Magistrates Court Rules.  I am satisfied that the finding on that separate question could lead to a complete termination of the proceedings, at best, and to a significant narrowing of the issues to be determined, at worst.  Therefore the costs involved, which I do not believe will be great in the scheme of things, would not militate against the making of the orders. 

4. I should state that the court was prepared to offer quite early dates for the hearing of the separate issue and it is only the unavailability of counsel that has required the hearing to be put off for approximately three months.  I have requested that the parties prepare a short minute setting out the question to be tried as a separate issue and my orders will reflect this. 

5. The orders are the applicant trustee to file written submissions on the amended interlocutory application on or before 17 August 2007. The respondent is to file his written submissions on or before 24 August 2007. Proceedings to continue by the hearing of a separate question pursuant to Pt 17 of the Federal Magistrates Court Rules and such questions to be formulated by the parties on or before 31 August 2007, and in default the matter will be restored for directions at 9.30 am on 6 September 2007.  The subpoenas and notice to produce are returnable before the Registrar on 12 September 2007.  Any evidence to be filed in support of the separate question is to be filed and served on or before 14 September 2007.  Parties are to file with my associate and serve outline of case and list of authorities on the separate question on or before 31 October 2007.  The hearing will be 20 and 21 November 2007.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  24 August 2007

CORRECTIONS

1.    

Page 1 – “Pascoe v Boensch & Anor (No. 5)” amended to “Pascoe v
Boensch & Anor (No.2)”.