Pigozzo v Mineral Resources Ltd

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FEDERAL COURT OF AUSTRALIA

Pigozzo v Mineral Resources Ltd [2022] FCA 1166

File number:

WAD 103 of 2022

Judgment of:

FEUTRILL J

Date of judgment:

29 September 2022

Catchwords:

PRACTICE AND PROCEDURE - application to restrict inspection of documents - application to strike out - application for injunction and non-publication of documents - pleadings dispute - strike-out principles - confidential information - legal professional privilege - principles of inferred waiver of privilege - privilege not waived - paragraphs struck out of statement of claim - statement of claim not to be published

Legislation:

Corporations Act 2001 (Cth) ss 180, 181, 182, 1317AA, 1317AC, 1317AD, 1317AAC, 1317AAC(1)

Evidence Act 1995 (Cth) ss 117, 118, 119, 120, 121, 122, 122(2), 123, 124, 125, 125(1), 126, 131(1), 131(2)

Fair Work Act 2009 (Cth) ss 340, 340(1), 341, 341(1), 342, 343, 360, 361, 539, 546, 550

Federal Court of Australia Act 1976 (Cth) ss 17(1), 23, 31A, 31A(2), 37AE, 37AF(1), 37AF(2), 37AG, 37AH, 37AI, 37AJ, 37M

Federal Court Rules 2011 (Cth) rr 1.32, 1.34, 1.35, 1.36, 2.32(2), 2.32(3), 2.32(4), 2.28, 2.29, 6.01, 16.02, 16.02(1), 16.02(2), 16.21, 16.21(1), 16.42, 16.43, 16.43(1), 26.01

Cases cited:

AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464

Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; (1994) 217 ALR 226

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

Aquatic Air Pty Limited v Siewert (No 3) [2018] NSWSC 624

Arnold Bloch Leibler (A Firm) v Slater & Gordon Limited [2020] FCA 1496

Ashbury v Reid [1961] WAR 49

Attorney-General v Wentworth (1988) 14 NSWLR 481

Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; (2015) 235 FCR 181

Australian Securities & Investments Commission v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267; (2005) 53 ACSR 305

AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82

Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] ATPR 41-434

Batistatos v Roads Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 25

Berry v CCL Secure Pty Ltd [2017] FCA 1546

Blake v Albion Life Assurance Society (1876) 45 LJCP 663

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500

Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115

Cashin v Cradock (1876) 3 Ch D 376

Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629

Christie v Christie (1873) LR 8 Ch App 499

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46

Commissioner of Australian Federal Police v Propend Finance Pty…

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Details
Case
[2022] FCA 1166
Decision Date

CaseChat Overview and Summary

The interlocutory orders in the case of Pigozzo v Mineral Resources Ltd address applications to strike out, restrict inspection of documents, and obtain an injunction and non-publication orders. The dispute involves confidential information and legal professional privilege, and the court had to decide whether certain paragraphs of the statement of claim should be struck out, restricted, or published. The court ruled that some paragraphs would be struck out, while others would remain restricted from inspection. Additionally, certain paragraphs of the statement of claim will not be published.

The court considered the principles of striking out pleadings under Rule 16.21(1) of the Federal Court Rules 2011 (Cth) and the basic function of pleadings in ensuring procedural fairness. The court also evaluated affidavits filed by the parties and determined that some parts of these affidavits should be struck out. The court's reasoning led to the decision to strike out specific paragraphs of the statement of claim and to continue the interim orders for non-publication and restriction of inspection.

The court's outcome was to strike out certain paragraphs of the statement of claim and to continue the interim orders for non-publication and restriction of inspection. The plaintiff, Mr Pigozzo, has the opportunity to apply to amend the statement of claim and re-plead the allegations that have been struck out. The interim orders for non-publication will cover specific paragraphs of the statement of claim, while the interim orders for restriction of inspection will remain in place. The court's final orders also include reserving the costs of the applications.

Orders

Orders of the court

1. The orders of the Court made on 1 June 2022 and varied on 13 June 2022 are continued such that until further order, a person who is not a party is not permitted to inspect the statement of claim filed on 1 June 2022 in the proper Registry, but may make an application in accordance with r 2.32(2) and (4) of the Federal Court Rules 2011 (Cth) for leave to inspect that document and, otherwise, the first, second and third respondents’ interlocutory application of 1 June 2022 for orders to restrict inspection and publication of the statement of claim is dismissed.

2. Paragraphs 24-36, 55-60, 102, 103 (the word ‘falsely’), 104(a)-(c), 105-109, 111-113, 116, 127, 130(e), 131(a)-(d), 132(k), 133(i)-(ii), 135(a)-(b), 137(iv)-(v), 143, 144, 146-152, 153(b)-(c) 153(e), 153(l)-(m), 155(a), 155(c)-(d) of the statement of claim are struck-out and, otherwise the first and second respondents’ interlocutory application of 7 June 2022 for orders striking out the statement of claim is dismissed.

3. The first and second respondents’ interlocutory application of 8 June 2022 for an interim injunction and non-publication orders is listed for hearing as to the final orders at 9.15 am on 13 October 2022 (AWST).

4. The costs of the applications to strike-out, to restrict inspection and for an interim injunction and non-publication orders and the hearing of 13 June 2022 are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

These reasons address the interlocutory orders made on each of the applications to strike out, application to restrict inspection and application for an interim injunction and non-publication orders. For the reasons set out below, parts of the statement of claim will be struck out. Mr Pigozzo may apply to amend the statement of claim and to re-plead the allegations that have been struck out. The interim orders made on the application to restrict inspection will be continued and made an interlocutory order. The interim orders made on the application for an interim injunction and non-publication orders will be dissolved and replaced with an interlocutory order for non-publication of paragraphs 26 – 31, 35 and 102 of the statement of claim.EVIDENCE A number of affidavits were filed, served and read on the applications. Certain parts of some of the affidavits were struck out. These were dealt with in orders made on 13 June 2022. Reasons were then given for striking out the applicable parts of the affidavits. The affidavits in evidence on the applications were as follows. An affidavit of Mr Nicholas Parkinson affirmed on 1 June 2022 was filed and read on behalf of MRL, Mr Ellison and Bennett & Co on the application to restrict inspection (Parkinson affidavit). An affidavit of Mr Thomas Coltrona sworn 7 June 2022 was filed and read in support of the application to strike out (Coltrona affidavit). Affidavits of Mr Coltrona sworn 8 June 2022 (second Coltrona affidavit) and sworn 9 June 2022 (third Coltrona affidavit) were filed and read in support of the application for an interim injunction and non-publication orders. An affidavit of Mr Michael Harmer affirmed on 10 June 2022 was filed and read in opposition to the applications to restrict inspection and for an interim injunction and non-publication orders (Harmer affidavit). Parts of the Harmer affidavit were struck out and removed from the Court file and replaced with a redacted affidavit. An affidavit of Mr Coltrona sworn on 12 June 2022 was filed and read in support of objections to certain parts of the Harmer affidavit (fourth Coltrona affidavit). Parts of the fourth Coltrona affidavit were struck out or not read and removed from the Court file and replaced with a redacted affidavit. Where relevant to one or more of the applications, the affidavit evidence is addressed in the reasons below.STRIKE-OUT: APPLICABLE PRINCIPLES The principles applicable to applications to strike-out pleadings under r 16.21(1) of the Federal Court Rules 2011 (Cth) are well established. Those that are relevant to the strike out application are as follows.Basic function of pleadings Pleadings and particulars perform the important function of ensuring a basic requirement of procedural fairness. To meet that requirement pleadings must state the case with sufficient clarity to allow the other party a fair opportunity to meet it: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287; Gould v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490 at 517. Pleadings define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial. Apart from cases where the parties choose to disregard the pleadings and fight the case on different issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664.

Decision

Reasons for decision

On 13 June 2022, Bennett & Co made an interlocutory application for summary judgment alternatively a permanent stay of the proceedings against Bennett &Co. That application was not heard on 13 June 2022 and is yet to be heard. These reasons address the interlocutory orders made on each of the applications to strike out, application to restrict inspection and application for an interim injunction and non-publication orders. For the reasons set out below, parts of the statement of claim will be struck out. Mr Pigozzo may apply to amend the statement of claim and to re-plead the allegations that have been struck out. The interim orders made on the application to restrict inspection will be continued and made an interlocutory order. The interim orders made on the application for an interim injunction and non-publication orders will be dissolved and replaced with an interlocutory order for non-publication of paragraphs 26 – 31, 35 and 102 of the statement of claim.EVIDENCE A number of affidavits were filed, served and read on the applications. Certain parts of some of the affidavits were struck out. These were dealt with in orders made on 13 June 2022. Reasons were then given for striking out the applicable parts of the affidavits. The affidavits in evidence on the applications were as follows. An affidavit of Mr Nicholas Parkinson affirmed on 1 June 2022 was filed and read on behalf of MRL, Mr Ellison and Bennett & Co on the application to restrict inspection (Parkinson affidavit). An affidavit of Mr Thomas Coltrona sworn 7 June 2022 was filed and read in support of the application to strike out (Coltrona affidavit). Affidavits of Mr Coltrona sworn 8 June 2022 (second Coltrona affidavit) and sworn 9 June 2022 (third Coltrona affidavit) were filed and read in support of the application for an interim injunction and non-publication orders. An affidavit of Mr Michael Harmer affirmed on 10 June 2022 was filed and read in opposition to the applications to restrict inspection and for an interim injunction and non-publication orders (Harmer affidavit). Parts of the Harmer affidavit were struck out and removed from the Court file and replaced with a redacted affidavit. An affidavit of Mr Coltrona sworn on 12 June 2022 was filed and read in support of objections to certain parts of the Harmer affidavit (fourth Coltrona affidavit). Parts of the fourth Coltrona affidavit were struck out or not read and removed from the Court file and replaced with a redacted affidavit. Where relevant to one or more of the applications, the affidavit evidence is addressed in the reasons below.STRIKE-OUT: APPLICABLE PRINCIPLES The principles applicable to applications to strike-out pleadings under r 16.21(1) of the Federal Court Rules 2011 (Cth) are well established. Those that are relevant to the strike out application are as follows.Basic function of pleadings Pleadings and particulars perform the important function of ensuring a basic requirement of procedural fairness. To meet that requirement pleadings must state the case with sufficient clarity to allow the other party a fair opportunity to meet it: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287; Gould v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490 at 517. Pleadings define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial. Apart from cases where the parties choose to disregard the pleadings and fight the case on different issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664.

Ratio Decidendi

Legal Principle Established

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