Piscopo v Hill
[2008] FMCA 1455
•23 October 2008
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 10th 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 attach.
Mr Allen further submitted that the communications concern litigation both in the Federal Court and the Federal Magistrates Court concerning two reviews of the trustee to refuse the application by the bankrupt, Terry Donald Hill to travel overseas as well as the application presently before the Court.
Conclusions
I have considered the particular pages and have taken note of the test in Pratt Holdings Pty Ltd v Commissioner of Taxation. I make the following findings:
· 84-87 email Small/Piscopo Privileged
· 87-88 emails Small/Piscopo/Foate Privileged
· 91 email Piscopo/Brooks Not privileged
· 93 email Piscopo/Small Privileged
· 97 email Piscopo/Brooks Not privileged
· 99 email Piscopo/Brooks Not privileged
· 99-100 email Chee/Foate Privileged
· 111-112 email Piscopo/Foate Privileged
· 113-114 emails Piscopo/Brooks Not privileged
· 116-120 emails Piscopo/Foate/Small Privileged
· 121 email Piscopo/Brooks Not privileged
· 122-123 emails Piscopo/Foate/brooks Privileged
· 124-125 emails Piscopo/Brooks Not privileged
· 126-127 emails Brooks/Foate Privileged
· 135-157 emails Piscopo/Foate/Allen Privileged
· 164 email Piscopo/Foate Privileged
· 165 email Piscopo/Brooks Not privileged
· 166-167 emails Piscopo/Foate Privileged
· 177-181 emails Piscopo/Brooks Not privileged
· 242-243 emails Foate/Allen Privileged
· 251 emails Foate/Brooks Not privileged
· 252-257 emails Foate/Allen/Piscopo Privileged
· 286-288 emails Foate/Piscopo/Allen Privileged
· 291-292 emails Foate/Allen/Brooks Privileged
· 293-294 emails Brooks/Piscopo/Foate Not privileged
· 303 emails Piscopo/Brooks Not privileged
· 304-305 emails Piscopo/Foate Privileged
· 318-322 emails Foate/Allen/Piscopo Privileged
· 366-367 emails Piscopo/Brooks Not privileged
· 475-478 emails Piscopo/Foate/Brooks Privileged
Those documents that I have found to be privileged are ones where I am of the view that the dominant purpose is for the provision of legal or litigation advice. Communications between Mr Piscopo and Mr Brooks, who I understand is not a lawyer, cannot meet this test and are not privileged. Copying a document to a lawyer does not establish that the dominant purpose of the communication is for the provision of legal or litigation advice.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. L. Coutman
Date:
0
2