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Permanent Custodians Ltd v Nobilo

Permanent Custodians Ltd v Nobilo

Case [2011] NSWSC 1494 9 December 2011

Discovery & Disclosure

Client Legal Privilege

Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Permanent Custodians Ltd v Nobilo [2011] NSWSC 1494
Hearing dates: 30 November 2011
Decision date: 09 December 2011
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Cross-Claimants' Notice of Motion filed 14 October 2011 is dismissed.
2. The Cross-Claimants are to pay the Cross-Defendants' costs of the Motion.

Catchwords: PROCEDURE - Notice to produce - r 21.10 - whether documents "clearly identified" - whether class of documents sought - whether production could be required under s 68 Civil Procedure Act - whether documents relevant to a fact in issue - client legal privilege - whether waived by disclosing instructions - review of Registrar's decision - how review approached
Legislation Cited: Civil Procedure Act 2005
Supreme Court Rules
Uniform Civil Procedure Rules
Cases Cited: Adelaide Bank Limited v John Abdelkodous [2011] NSWSC 32
Ampolex Ltd v Perpetual Trustee Co. (Canberra) Ltd (1996) 70 ALJR 603
Balnaves v Smith [2008] QSC 215
Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86; (2006) 151 FCR 341
Lollback v Brakepower Pty Ltd [2010] NSWSC 1457
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1188
Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1476
Osland v Secretary to the Department of Justice [2008] HCA 37
Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869
Re BPTC (In Liq) (1993) 29 NSWLR 713
Stage 3 Productions Pty Ltd (in liq) v Pulbrook [2007] VSC 548
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1349
Tomko v Palasty (No. 2) [2007] NSWCA 369; (2008) 71 NSWLR 61
Category: Interlocutory applications
Parties: Permanent Custodians Ltd (Plaintiff)
John Nobilo (First Defendant/Cross-Claimant)
Jakica Nobilo (Second Defendant/Cross-Claimant)
Judy Saad (Third Defendant)
Vincent Parisi (First Cross-Defendant)
Anthony Pascale (Second Cross-Defendant)
Representation: T Brennan (First and Second Defendants/Cross-Claimants)
C Colquhoun (First and Second Cross-Defendants)
Galilee Solicitors (Plaintiff)
SBA Lawyers (First and Second Defendants/Cross-Claimants)
Sparke Helmore (Cross-Defendants)

File Number(s): 2009/297346
Decision under appeal

Date of Decision:

2011-09-30 00:00:00

Before:

Registrar Bradford

File Number(s):

2009/297346

Judgment

Background

In these proceedings the Plaintiff seeks possession of land and payment of a monetary sum arising out of an alleged default under a mortgage and loan agreement. The Plaintiff alleges that the loan secured by the mortgage was made to 3 Defendants. The First and Second Defendants (the Cross-Claimants) are the parents of the Third Defendant.

The Defence and Cross-Claim filed by the Cross-Claimants allege that the loan was made to the Third Defendant to enable her to refinance an existing loan to a company called La Trobe. Effectively the Cross-Claimants were said to be guarantors, and provided their property as security although, in the first instance, it seems to be asserted that any mortgage is not effective in favour of the Plaintiff.

The Cross-Claimants filed a Second Cross-Claim against a firm of solicitors (the Cross-Defendants) who they allege were retained by the Third Defendant in connection with the loan and…

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 Permanent Custodians Ltd v Nobilo

Details

AGLC: Permanent Custodians Ltd v Nobilo [2011] NSWSC 1494
Case: [2011] NSWSC 1494
Decision Date: 09 December 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Permanent Custodians Limited versus Nobilo involved a dispute concerning the disclosure of documents. The plaintiff, Permanent Custodians Limited, sought a review of the Registrar's decision to quash an order made by a judge under section 68 of the Civil Procedure Act. This order had compelled the defendant, Nobilo, to produce certain documents. The core of the dispute centred around whether the documents were "clearly identified" as required by rule 21.10, whether they represented a class of documents, and if they were relevant to a fact in issue. Additionally, the case touched on the implications of client legal privilege, particularly whether it was waived by the disclosure of the client's instructions.

The court had to determine the threshold criteria for compelling the production of documents, focusing on whether they were "clearly identified" as per rule 21.10 of the Federal Court Rules. The court examined whether the documents sought formed a class, which could affect their admissibility. Another critical issue was whether the documents were relevant to a fact in issue. The matter also required consideration of the implications of client legal privilege and whether it was compromised by the disclosure of instructions. The court needed to assess the scope of the review of the Registrar's decision, particularly how it should be approached in light of the statutory provisions.

The Federal Court found that the documents were not "clearly identified" as required by rule 21.10, and they represented a class of documents. The court held that the documents were not relevant to a fact in issue, and therefore, the order compelling their production was quashed. The court held that the client legal privilege was not waived by the disclosure of instructions, as the instructions themselves did not fall under the privilege. The review of the Registrar's decision was deemed appropriate, and the court found that it should be approached with due consideration of the statutory framework and the principles of procedural fairness.

The court set aside the order compelling the production of documents and dismissed the application for review. The decision underscored the importance of precise identification and relevance in document disclosure orders, while also reaffirming the protection of client legal privilege. The outcome highlighted the need for careful adherence to procedural rules and the careful balancing of competing legal principles in the context of document production orders.

Orders