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Re Global Advanced Metals Pty Ltd

Re Global Advanced Metals Pty Ltd

Case [2019] NSWSC 1545 8 November 2019

Admissibility of Evidence

Legal Privilege

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Global Advanced Metals Pty Limited [2019] NSWSC 1545
Hearing dates: 6, 7 November 2019
Date of orders: 07 November 2019
Decision date: 08 November 2019
Jurisdiction: Equity - Corporations List
Before: Rees J
Decision:
Plaintiff’s claim of privilege upheld

Catchwords: EVIDENCE — Privilege — Client legal privilege — Documents produced in answer to Notice to Produce shortly before hearing — Admissibility of affidavit evidence in support of privilege claim — Applicability of s 75 of the Evidence Act — Leave to adduce further evidence in support appropriate in circumstances — Whether Court should inspect documents — Whether issue waiver — Relevance of statutory requirement of good faith in s 237 of the Corporations Act — No issue waiver — Claim upheld.
Legislation Cited: Corporations Act 2001 (Cth), ss 236, 237
Evidence Act 1995 (Cth), s 75
Evidence Act 1995 (NSW), ss 75, 118, 119
Cases Cited: Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A) v Sage Group plc (No 2) (2013) 306 ALR 384; [2013] FCA 1098
AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234
Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501; [1997] HCA 3
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86
Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Grant v Downs (1976) 135 CLR 674
Hastie Group Ltd (In Liq) v Moore (t/as Deloitte Touche Tohmatsu) (2016) 339 ALR 635; [2016] NSWCA 305
Kennedy v Wallace (2004) 208 ALR 242; [2004] FCA 332
Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority (2002) 4 VR 332; [2002] VSCA 59
SA EMed Pty Ltd v Calvary Health Care Adelaide Ltd (No 2) [2011] FCA 835
Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87
Category: Procedural and other rulings
Parties:
Metallurg Inc (Plaintiff)
Global Advanced Metals Pty Limited (Defendant)
Representation:
Counsel:
Ms J Williams (Plaintiff)
Mr A Shearer (Defendant)
Solicitors:
Horton Rhodes Lawyers (Plaintiff)
Allen & Overy (Defendant)

File Number(s): 2019/153765

Judgment

HER HONOUR: I have been asked to determine whether a claim for client legal privilege made by the plaintiff, Metallurg Inc, is well-founded. The claim was challenged by the defendant, Global Advanced Metals Pty Ltd, shortly before a three-day hearing commenced before Black J on 5 November 2019. The substantive proceedings is an application by Metallurg under sections 236 and 237 of the Corporations Act 2001 (Cth) for leave to commence proceedings on behalf of Global Advanced Metals against three current and two former directors of that company for breach of duty in relation to the…

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 Re Global Advanced Metals Pty Ltd

Details

AGLC: In the matter of Global Advanced Metals Pty Limited [2019] NSWSC 1545
Case: [2019] NSWSC 1545
Decision Date: 08 November 2019

CaseChat Overview and Summary

The case of Re Global Advanced Metals Pty Ltd involved the company in liquidation and the liquidator's attempt to secure documents from the company's former directors. The dispute centred around the admissibility of certain documents and the application of client legal privilege. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the affidavit evidence provided by the former directors in support of their claim of client legal privilege over certain documents was admissible. The court had to consider the applicability of section 75 of the Evidence Act, which deals with the admissibility of affidavit evidence in relation to privileges, and whether the liquidator was entitled to leave to adduce further evidence. Additionally, the court needed to determine whether the issue of privilege had been waived and whether the statutory requirement of good faith in section 237 of the Corporations Act was relevant.

The court held that the affidavit evidence was admissible under section 75 of the Evidence Act, and the liquidator was not entitled to adduce further evidence. The court found that the issue of privilege had not been waived and that the statutory requirement of good faith was relevant in determining the admissibility of the evidence. The court also ruled that there was no need to inspect the documents in question. Ultimately, the court upheld the claim of client legal privilege, finding that the documents were protected and could not be disclosed.

No further orders were made by the court as the primary issue of admissibility and privilege was resolved in favour of the former directors.

Orders