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Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd

Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd

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FEDERAL COURT OF AUSTRALIA
Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925
EVIDENCE – legal professional privilege – claim in respect of misleading or deceptive conduct – alternative claim for rectification of document - production of documents by applicant’s former solicitors on subpoena – applicant claimed privilege in respect of advice sought and obtained from former solicitors - whether privilege lost by pleading of reliance and the usual elements of a claim for rectification.
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 156 ALR 634 followed
Goldberg v Ng (1995) 185 CLR 83 cited
Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418 referred to
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664 referred to
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419 referred to
PERPETUAL TRUSTEES (WA) LTD v EQUUSCORP PTY LTD
VG 610 of 1996
RYAN, CARR and MARSHALL JJ
7 SEPTEMBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 610 of 1996

On appeal from a Judge of the Federal Court of Australia

BETWEEN:

PERPETUAL TRUSTEES (WA) LTD
Applicant/Appellant

AND:

EQUUSCORP PTY LTD
Respondent

JUDGES:

RYAN, CARR and MARSHALL JJ

DATE OF ORDER:

7 SEPTEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The applicant have leave to appeal from the orders made on 21 May 1999.
2. The appeal be allowed and those orders be set aside.
3.The documents referred to in paragraphs 7, 8 and 9 of the affidavit of Mark Leaker sworn 27 April 1999, produced pursuant to the subpoena dated 20 January 1999, be made available for inspection and copying by the appellant.
4.The respondent pay the appellant’s costs of the appeal and of the hearings on 6 May 1999 and 21 May 1999, including submissions in relation to the waiver of privilege.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 610 of 1996

On appeal from a Judge of the Federal Court of Australia

BETWEEN:

PERPETUAL TRUSTEES (WA) LTD
Applicant/Appellant

AND:

EQUUSCORP PTY LTD
Respondent

JUDGES:

RYAN, CARR and MARSHALL JJ

DATE:

7 SEPTEMBER 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
THE COURT:
Introduction

This is an application for leave to appeal from orders made by a Judge of this Court upholding a claim of legal professional privilege in respect of various documents produced on subpoena by a firm of solicitors which formerly acted for the applicant in the principal proceedings. The application for leave was heard as if it was also the appeal. The hearing of the principal proceedings is scheduled to start on 13 September 1999.
Factual and Procedural Background
In the principal application the applicant, Equuscorp Pty Ltd (“Equus”), sues the first respondent, Kamisha Corporation Ltd (“Kamisha” – a film production company), the second respondent, Mr John Bardin Davis (a…

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.

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Details

Case: [1999] FCA 925
Decision Date: 7 SEPTEMBER 1999

CaseChat Overview and Summary

In this case, the applicant, Perpetual Trustees (WA) Ltd, sought leave to appeal against the orders made by the court on 21 May 1999. The respondent, Equuscorp Pty Ltd, opposed the application. The nature of the dispute revolves around the interpretation and application of certain legal principles in relation to the production of documents under a subpoena. The matter was heard in the Supreme Court of Western Australia. The central legal issues the court had to decide were whether the applicant was entitled to appeal from the orders made on 21 May 1999, and if so, whether the appeal should be allowed. Additionally, the court had to determine whether certain documents, referred to in the affidavit of Mark Leaker, should be made available for inspection and copying by the appellant.

The court, in its reasoning, concluded that the applicant was indeed entitled to appeal from the orders made on 21 May 1999. The court held that the appeal should be allowed, and the orders made on that date should be set aside. The court further determined that the documents referred to in the affidavit of Mark Leaker, produced pursuant to the subpoena, should be made available for inspection and copying by the appellant. The court found that the respondent should pay the appellant's costs of the appeal and of the hearings on 6 May 1999 and 21 May 1999, including submissions in relation to the waiver of privilege. The court's decision was based on the principle that the production of documents under a subpoena should be balanced with the protection of legal privilege, and in this case, the court found that the privilege had been waived.

Orders

Orders of the court

1. The applicant have leave to appeal from the orders made on 21 May 1999.

2. The appeal be allowed and those orders be set aside.

3. The documents referred to in paragraphs 7, 8 and 9 of the affidavit of Mark Leaker sworn 27 April 1999, produced pursuant to the subpoena dated 20 January 1999, be made available for inspection and copying by the appellant.

4. The respondent pay the appellant’s costs of the appeal and of the hearings on 6 May 1999 and 21 May 1999, including submissions in relation to the waiver of privilege.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 610 of 1996

BETWEEN:	PERPETUAL TRUSTEES (WA) LTD Applicant/Appellant
AND:	EQUUSCORP PTY LTD Respondent
JUDGES:	RYAN, CARR and MARSHALL JJ
DATE OF ORDER:	7 SEPTEMBER 1999
WHERE MADE:	MELBOURNE

JUDGES:	RYAN, CARR and MARSHALL JJ
DATE:	7 SEPTEMBER 1999
PLACE:	MELBOURNE