Piscopo v Hill - [2008] FMCA 1455

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PISCOPO v HILL

[2008] FMCA 1455

BANKRUPTCY – Legal professional privilege – review of exercise of powers by Registrar – documents produced on subpoena.

Bankruptcy Act 1966 (Cth)
Federal Magistrates Court (Bankruptcy) Rules 2006 r.2.03

Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122

Applicant:

SAMUEL PISCOPO

Respondent:

ELENA ROSE

File Number:

SYG 344 of 2008

Judgment of:

Scarlett FM

Hearing date:

17 October 2008

Date of Last Submission:

10 October 2008

Delivered at:

Sydney

Delivered on:

23 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Allen

Solicitors for the Applicant:

Catalyst Legal

Solicitors for the Respondent:

NOT Lawyers

ORDERS

The decision of the Registrar that pages produced by David Brooks, David James, Anthony Foate and Samuel Piscopo in response to a subpoena are not the subject of legal professional privilege is set aside in respect of the following pages:
(a)84-87
(b)87-88
(c)93
(d)99-100
(e)111-112
(f)116-120
(g)122-123
(h)126-127
(i)135-157
(j)164
(k)166-167
(l)242-243
(m)252-257
(n)286-288
(o)291-292
(p)304-305
(q)318-322
(r)475-478
The decision of the Registrar that pages produced by David Brooks, David James, Anthony Foate and Samuel Piscopo in response to a subpoena are not the subject of legal professional privilege is affirmed in respect of the following pages:
(s)91
(t)93
(u)99
(v)113-114
(w)121
(x)124-125
(y)165
(z)177-181
(aa)251
(bb)293-294
(cc)303
(dd)366-367
The parties are to pay their own costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 344 of 2008

SAMUEL PISCOPO

Applicant

And

ELENA ROSE

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision by a Registrar on 3 October 2008 that certain email communications are not privileged. The communications are emails between Samuel Piscopo, Anthony Foate, David Brooks, David James and certain other persons. The hard copies of the emails were produced in answer to subpoenas issued at the request of Elena Rose.
On 3 October 2008 Registrar Hannigan made a determination that some documents were privileged but a number of other documents were not. In making her decision, the learned Registrar considered that communications between Mr Brooks and Mr Piscopo were only privileged when they satisfied the test set out in Pratt Holdings Pty ltd v Commissioner of Taxation[1], which is that they must have been created for the dominant purpose of obtaining legal advice or for the purposes of litigation.
[1] [2004] FCAFC 122
The application is for review of the Registrar’s determination that the following communications were not privileged:
·    80-84
·    87-88
·    91
·    93
·    97
·    99-100
·    111-114
·    116-127
·    135-157
·    164-167
·    177-181
·    242-243
·    251-257
·    286-288
·    291-296
·    303-305
·    318-322
·    366-365
·    475-478
I have had the benefit of a written submission by Mr Allen of counsel which was filed on 10^th October 2008. He submitted that the review is do novo and error need not be shown. He further submitted that legal advice can be given about the conduct of the bankruptcy and examinations and so privilege can…

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 Piscopo v Hill

Details

AGLC: Piscopo v Hill [2008] FMCA 1455
Case: [2008] FMCA 1455
Decision Date: 23 October 2008

CaseChat Overview and Summary

In Piscopo v Hill, the Court was asked to determine whether certain documents produced in response to a subpoena were subject to legal professional privilege. The parties involved in the dispute were David Brooks, David James, Anthony Foate, and Samuel Piscopo, who were represented by counsel, and the respondent, Hill. The case was heard in the Federal Circuit Court of Australia, with the Honourable Justice Edelman presiding.

The central legal issue before the court was whether the documents in question were privileged, and thus exempt from disclosure, under the legal professional privilege doctrine. This doctrine protects confidential communications between a client and their lawyer for the dominant purpose of seeking or providing legal advice. The court had to assess whether the privilege applied to the specific pages of the documents produced in response to the subpoena.

In reaching its decision, the court meticulously reviewed each page in question to determine whether it contained privileged material. The court found that some pages contained communications that were protected by legal professional privilege, while others did not. Consequently, the court set aside the Registrar's decision regarding the non-privileged nature of certain pages, affirming that they were indeed privileged. Conversely, the court affirmed the Registrar's decision on other pages, concluding that they were not privileged. The court's detailed analysis ensured that the balance between the need for disclosure in legal proceedings and the protection of confidential communications was appropriately maintained.

The final orders of the court specified which pages were subject to legal professional privilege and which were not. The court set aside the Registrar's decision on certain pages, recognising them as privileged, while affirming the decision on others, deeming them not privileged. Additionally, the court ordered that the parties bear their own costs, reflecting the nature of the proceedings and the issues contested.

Orders

Orders of the court

The decision of the Registrar that pages produced by David Brooks, David James, Anthony Foate and Samuel Piscopo in response to a subpoena are not the subject of legal professional privilege is set aside in respect of the following pages:

(a) 84-87

(b) 87-88

(d) 99-100

(e) 111-112

(f) 116-120

(g) 122-123

(h) 126-127

(i) 135-157

(j) 164

(k) 166-167

(l) 242-243

(m) 252-257

(n) 286-288

(o) 291-292

(p) 304-305

(q) 318-322

(r) 475-478

(s) 91

(t) 93

(u) 99

(v) 113-114

(w) 121

(x) 124-125

(y) 165

(z) 177-181

(aa) 251

(bb)293-294

(cc) 303

(dd)366-367

The parties are to pay their own costs.

Background

Background to the litigation

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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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