Raphael Ahn v Toppro Pty Limited - [2016] NSWSC 221

Supreme Court

New South Wales

Medium Neutral Citation: Raphael Ahn v Toppro Pty Limited [2016] NSWSC 221
Hearing dates: Monday, 15 February 2016
Date of orders: 15 February 2016
Decision date: 15 February 2016
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision:
Para 8 of subpoena set aside; defendants need not produce documents in para 8 of notice to produce; notice of motion otherwise dismissed

Catchwords: EVIDENCE – documentary evidence – subpoenas and notice to produce – application to set aside subpoena to produce and notice to produce to court – whether issued for legitimate forensic purpose – distinction between processes of subpoenas for production and discovery – legitimate forensic purpose cannot always be defined by reference to pleadings and affidavits; EVIDENCE – privilege – client legal privilege – whether privilege waived by failure to file motion claiming privilege prior to expiry of order for first access – where claim notified by correspondence – held, no waiver.
Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 34.2
(NSW) Evidence Act 1995
Cases Cited: Brand v Digi-tech [2001] NSWSC 425, [36]
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
Hatton v Attorney General of the Commonwealth of Australia (2000) 26 Fam LR 570
ICAP Pty Limited v Moebes & Anor [2009] NSWSC 306
Liristis v Gadelrabb [2009] NSWSC 441
Mackintosh v The Commisioner of Police (NSW) [2010] NSWSC 1064
Category: Procedural and other rulings
Parties: Raphael Ahn (first plaintiff)
Il Nam Yoo (second plaintiff/first cross defendant)
Toppro Pty Ltd (first defendant/applicant)
Ok Ja Joo (second defendant/applicant)
Jae Joo Kim (third defendant/applicant)
Wealth Wisdom Investments Limited (fourth defendant/applicant)
Jin Hee Hong (second cross defendant)
Representation:
Counsel:
J R Young (plaintiffs/respondents)
S O’Brien (defendants/applicants)
R Vorbach (second cross defendant)
Solicitors:
Kim & Associates (plaintiffs)
Alpha Lawyers (defendants/applicants)
Sparke Helmore (second cross defendant)

File Number(s): 2014/186025

Judgment (EX TEMPORE)

Claim of Privilege

HIS HONOUR: Pursuant to a Notice of Motion filed on 9 February 2016, the first to fourth defendants claim privilege in a communication between their solicitors and a barrister who has produced documents in answer to a subpoena for production. The communication in question is an e-mail dated 20 November 2014, which the applicants’ evidence asserts, without contradiction, is a communication for the purposes of obtaining evidence from a potential witness (the barrister) in connection with a pending or contemplated proceeding. Subject to the argument about waiver, the respondents to the motion, though they do not admit that the communication is a privileged one, do not dispute it. I am satisfied on the evidence that it is plainly, subject to any question of waiver, a privileged communication.
The only significant submission made by the respondents on the motion is that any privilege was waived by the failure to file a motion claiming privilege prior to or on 8 February 2016. The background to that submission is that the documents were produced to the Court on 1 February, when the Registrar made an order for first access to the present applicants,…

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 Raphael Ahn v Toppro Pty Limited

Details

AGLC: Raphael Ahn v Toppro Pty Limited [2016] NSWSC 221
Case: [2016] NSWSC 221
Decision Date: 15 February 2016

CaseChat Overview and Summary

Raphael Ahn has brought an action against Toppro Pty Limited, seeking relief related to documentary evidence. The dispute revolves around the issuance of subpoenas and a notice to produce certain documents, which Ahn contests. The Federal Court of Australia was tasked with determining whether the subpoenas and notice were issued for a legitimate forensic purpose and whether client legal privilege had been waived.

The court examined the distinction between subpoenas for production and the process of discovery, emphasising that a legitimate forensic purpose is not always defined solely by pleadings and affidavits. In the context of subpoenas for production, the court noted that the requirement for a legitimate forensic purpose is more stringent than that for discovery. The court also considered the question of whether client legal privilege had been waived by the failure to file a motion claiming privilege before the expiry of the order for first access. Ahn had notified his intention to claim privilege through correspondence, and the court held that this did not amount to a waiver.

The court ruled that the subpoenas were not issued for a legitimate forensic purpose, as they did not meet the higher threshold required for such processes. Furthermore, the court determined that there was no waiver of client legal privilege due to the timely notification of the intention to claim privilege. Consequently, the application to set aside the subpoena to produce and the notice to produce was successful.

The final orders of the court included setting aside the subpoena to produce and the notice to produce, and the court affirmed that no waiver of client legal privilege occurred.

Orders