Pascoe v Boensch (No. 2)

[2006] FMCA 1745

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v BOENSCH & ANOR (No. 2) [2006] FMCA 1745

PRACTICE & PROCEDURE – BANKRUPTCY – Where respondent debtors sought injunctive relief to prevent documents produced by a solicitor of the bankrupt claimed to be the subject of legal professional privilege being read in evidence – whether issue of privilege forms a separate question to the substantive proceedings under Part 17 Federal Magistrates Court Rules – whether the applicant for an injunction should commence.

Federal Magistrates Court Rules 2001 Part 17

Applicant: SCOTT DARREN PASCOE

Respondent: FRANZ BOENSCH

Second Respondent SABINE BOENSCH

File Number: SYG1995 of 2006

Judgment of: Raphael FM

Hearing date: 21 November 2006

Date of Last Submission: 21 November 2006

Delivered at: Sydney

Delivered on: 21 November 2006

REPRESENTATION

Counsel for the Applicant: Mr J. Johnson

Solicitors for the Applicant: McLean & Associates

Counsel for the First Respondent:

Mr M. Heath

Mr A. Tsekouras

Solicitors for the First Respondent: Wright Pavuk

Solicitors for the Second Respondent: Shanahan Tudhope

ORDERS

1. The applicant for interim orders shall commence.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1995 of 2006

SCOTT DARREN PASCOE

Applicant

And

FRANZ BOENSCH & ANOR

Respondent

REASONS FOR JUDGMENT

1. On 8 September 2006, an amended interim application was filed in this matter on behalf of both respondents by one firm of lawyers seeking, inter alia:

   “(4) a declaration that exhibit SDP6 to the affidavit of Scott Darren Pascoe and all other documents in the possession of Scott Darren Pascoe being documents obtained from James Pengkong Leong or documents:

   (a)  to which legal professional privilege attaches within the meaning of the common law; and or alternatively

   (b) that fall within the categories of documents referred to in s.118(a) or alternatively paragraph (b) of s.118 of the Evidence Act 1995 (Cth) being documents coming into existence for the dominant purpose of lawyers providing legal advice to the first and second respondents –

   and that privilege in those documents has not been waived by the respondents (the privileged documents);

   (5)an order that Scott Darren Pascoe be restrained from adducing or seeking to adduce the privileged documents in evidence in the proceedings SYG1995/2006;

   (6)an order that Darren Pascoe return to the respondents all the privileged documents and any copies of them and any notes or other records of information derived from the privileged documents within 14 days of this order.”

2. There were some other applications made in that interim application.  These have been dealt with by his Honour Lloyd-Jones FM.  On 5 October 2005, the matter returned before me for the purposes of further directions.  I made orders on that day.  One of those orders was:

   “(6)Hearing of the preliminary issues set down for 21 and 22 November 2006 and any application for security for costs [here I interpose that an application for security for costs was contained in the application of 8 September] all evidence in respect thereto shall be filed and served by the applicant for security on or before 31 October 2006 and by respondent to the application on or before 13 November 2006.”

3. I made some other orders concerning the provisions of outlines of cases and lists of authorities. On 10 November 2006, in response to those orders I received from Mr Heath and Ms Tsekouras, counsel for the respondents (who are now apparently counsel only for the first respondent), a helpful document of some 27 pages which commences with the words “The separate question determination” and then there is set out as paragraphs 1(a) and 1(b) the two questions for determination by me today.

4. When the case commenced this morning Mr Heath sought a clarification of the manner in which the case was to be conducted.  It was his submission that Mr Johnson, who appears on behalf of the trustee, should commence his case by seeking to tender the documents referred to in the amended interim application and in the paragraphs 1(a) and 1(b) of Mr Heath’s submissions, and then Mr Heath would object.

5. Mr Johnson says that this is in effect taking away the separate question and asking him to commence his case, and he objects to the matter proceeding in this way. He argues that where a party proposes a separate question and where such question is accepted by the court as a question for determination pursuant to Part 17 of the Federal Magistrates Court Rules 2001, then the person posing the question should commence.

6. I agree with Mr Johnson.  This matter has always proceeded in relation to this issue on the basis that a separate question was posed and should be determined by me.  The question being posed was whether the documents which Mr Heath’s clients wish to have injuncted are the subject of legal professional privilege.  If they are, Mr Heath will be entitled to the injunction he requests.  If they are not, then when this case opens eventually, they can be led in evidence.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: