Rouse & Ors v IOOF Australia Trustees (No 6) No. Scgrg-98-257 Judgment No. S292

ROUSE & OTHERS
v
IOOF AUSTRALIA TRUSTEES LIMITED (NO. 6)

[1999] SASC 292

LANDER J. This is an application for leave to appeal against an order made by me on 20 May 1999 where I dismissed the appeal as incompetent.
This application was heard at the same time as an application for leave to appeal against the decision from which the appeal was brought. I have this day dismissed the application for leave to appeal against that decision.
To understand the procedural complications it is necessary to set out some of the background facts.
The plaintiffs except for the 16th and 17th plaintiffs, brought this action on 25 February 1998. The 16th and 17th plaintiffs were added as plaintiffs on 8 May 1998.
The 13th, 14th and 15th plaintiffs are involved in other litigation with the defendant which is currently being heard by Williams J.
On 17 July 1998 the defendant applied to have all of the plaintiffs’ proceedings stayed upon the ground that the proceedings were an abuse of the processes of the court. The defendant relied in support of that application on an affidavit sworn by Linden John Huxtable sworn on 16 July 1998 and in turn upon some documents exhibited to that affidavit, referred to in the interlocutory proceedings as LJH10.
The documents contained in exhibit LJH10 were copies of the plaintiffs’ documents which had been inadvertently left at the defendant’s premises when the plaintiffs’ legal advisers were taking inspection of the defendant’s documents.
Most of the documents would ordinarily attract legal professional privilege.
Although the plaintiffs’ documents had come into the possession of the defendant on about 11 May 1998, and had been copied to the defendant’s solicitors, the defendant’s solicitors in the action being heard by Williams J, counsel in both actions and various officers of the defendant, neither the defendant nor its solicitors made the plaintiffs or their legal advisers aware that they held those documents.
It was not until 16 July 1998 when Mr Huxtable exhibited copies of those documents to his affidavit that the plaintiffs became aware that its documents were in the possession of the defendant.
On either 20 or 23 July 1998 Mr Gray QC, senior counsel for the plaintiffs, applied to the Chief Justice, who was then hearing the defendant’s application for a stay of these proceedings, for the return of all copies of LJH10.
On 23 July 1998 the Chief Justice ordered;
“The court orders by consent; -
1...... That the defendant by close of business on Wednesday 29 July 1998 deliver to my associate/chambers all copies of the document LJH10 to the affidavit of Mr Huxtable sworn on 16 July 1998.
2.That the defendant’s solicitors, Johnson Winter & Slattery be permitted to retain one copy of that document and counsel, Mr Abbott QC, be permitted to retain a further copy of the documents but that the content of the document is not to be communicated by the solicitors or by counsel to any other person except to the extent that it is necessary to do so for the purpose of obtaining instructions from their client in connection with the application for the return of the remaining documents”.
On 21 September 1998 in response to a further application by the plaintiffs the Chief Justice made the following further order:
“1..... That the defendant, by close of business on 30 September 1998, provide full particulars in writing of the matters relied upon by it in support of its application for a stay of these proceedings.
2.That the defendant, by close of business on 30 September 1998; provide particulars of any evidence to be adduced by it in support of its application for a stay of these proceedings.”
That order was partly observed by the defendant. It filed the particulars required to be given in paragraph 1 of the Chief Justice’s order on 2 October 1998. It ignored paragraph 2.
The particulars given in respect of paragraph 1 were;

“PARTICULARS OF ABUSE

In these particulars, the 13th, 14th and 15th defendants are referred to as “Auspine”;
1...... Auspine are defendants in proceedings in the Supreme Court of South Australia numbered 480/93 and 1299/96 (collectively referred to as “the management dispute”) in which the defendant herein (“IOOF”) is a plaintiff.

2. Auspine has instituted these proceedings for the purposes of:
2.1... deflecting IOOF from devoting an appropriate level of effort and resources to the management dispute;
2.2 obtaining information to be used in the management dispute which information would not otherwise be available to them by procedures which can be invoked in the management dispute”.

The proceedings referred to in paragraph 1 of the particulars are the proceedings currently being heard by Williams J.
The important point arising out of the giving of those particulars is that the defendant only claimed that the 13th, 14th and 15th defendants (Auspine), who are the parties in litigation with the defendant before Williams J, were motivated by the improper purposes referred to in paragraph 2 of the particulars.
The defendant did not claim in those particulars that any of the other plaintiffs were motivated by any improper purpose. It was only claimed that three of the seventeen plaintiffs were actuated by an improper purpose.
In those circumstances even if the application for a stay of the proceedings was to succeed it could only have stayed the proceedings instituted by three of the seventeen plaintiffs. The proceedings brought by the other plaintiffs would otherwise continue.
In due course I heard and dismissed the defendant’s application to stay the 13th, 14th and 15th plaintiffs’ proceedings.
In any event, when this matter came on before me the plaintiffs, by their counsel Mr Gray, made an oral application in the following form:
“That the defendant deliver up copies of exhibit LJH10 to the affidavit of Linden John Huxtable sworn on 16 July 1998 in the possession of the defendant or the defendant’s legal advisers.”
If the defendant had complied with the order made by the Chief Justice on 23 July 1998 there should have only been two copies of LJH10 not in the possession of the Chief Justice’s associate. One copy would be in the hands of the defendant’s solicitors and the other in the hands of defendant’s senior counsel.
The defendant resisted giving up the copies in the possession of its solicitors and senior counsel upon the ground that there was no legal professional privilege in the documents because the documents themselves were evidence of the plaintiffs’ abuse of process. As there was no privilege attaching to the documents, the defendant argued it was entitled to use those documents in support of its application for an abuse of process.
The matter proceeded before me upon the basis that the defendant was only entitled to retain any copies of these documents if the defendant could satisfy me that the documents gave some colour to its claim of an abuse of process. It was accepted on both sides that if I was satisfied that the documents would not support an application for a stay of these proceedings then the document were communications of a kind to which legal professional privilege would attach. In particular it was accepted by the defendant that the inadvertent leaving of the documents by the plaintiffs’ legal advisers at the defendant’s premises did not constitute a waiver of any legal professional privilege. Nor implicitly did any other conduct on the part of the plaintiffs implicitly constitute a waiver of whatever privilege might attach to the documents.
The application then fell to be determined by reference to the documents themselves.
I read the documents and reached the conclusion that the documents did not evidence any abuse of process on the part of the 13th, 14th or 15th plaintiffs or any of them and did not add colour to a claim by the defendant that the 13th, 14th or 15th plaintiffs had been actuated by any improper purpose.
In those circumstances I determined that the documents being evidence of communications between the plaintiffs and their legal advisers were subject to legal professional privilege. On 31 March and 1 April 1999 I made orders, consistent with reasons which I delivered on 30 March 1999, requiring the defendant to return to the plaintiffs all copies of exhibit LJH10 not otherwise returned in compliance with the Chief Justice’s order of 23 July 1998.
The defendant did not seek leave to appeal from that decision.
Instead on 13 April 1999 the defendant filed and served a notice of appeal, the grounds of which were;
“1..... That the learned trial judge erred in holding that the documents did not constitute evidence which could support an argument that the proceedings are an abuse of process.
2.That the learned trial judge erred in ordering that the defendant pay the plaintiffs’ costs on an indemnity basis.”
In response to that appeal the plaintiffs applied for an order that the appeal be dismissed as incompetent. That application proceeded before me on 6 May 1999.
At that hearing I asked the defendant through its counsel whether it wished to seek leave to appeal from the decision contained in my reasons of 30 March 1999 and the orders made consequent upon those reasons. Defendant’s counsel eschewed any application for leave to appeal from that decision or those orders.
The defendant argued that I should not dismiss the appeal as incompetent but leave the question of incompetence for the decision of the Full Court. It further argued that the appeal was not incompetent because the orders from which the appeal was brought were the final orders or orders in the nature of injunctions. Because they were final orders or orders in the nature of injunctions no leave was required to be obtained (s.50(3) Supreme Court Act).
I decided that there was no reason why I should not exercise the jurisdiction given to me by Rule 94.08 and hear the application made by the defendant to dismiss the appeal as incompetent. I concluded that the orders were neither final orders nor orders in the nature of injunctions and that the appeal was incompetent and, pursuant to Rule 95.08 of the Supreme Court Rules, I dismissed the appeal as incompetent.
Subsequent to that decision the defendant filed an application on 3 June 1999 seeking leave to appeal from my original decision made on 30 March 1999 which supported the orders made on 31 March 1999 and 1 April 1999.
I heard that application for leave to appeal at the same time as I heard this application and I have today dismissed that application appeal for reasons which I have separately delivered.
Although the file suggests that this application for leave to appeal was not brought within fourteen days of my decision of 20 May 1999 I am advised by the parties that the file in that regard is misleading. I am told that the application was brought within time and that an extension of time within which to seek leave to appeal is not required. Because the plaintiffs did not argue otherwise I shall assume that this application for leave to appeal against my decision made on 20 May 1999 was brought within time.
It is said by the defendant that if I refuse leave to appeal from my decision made on 30 March 1999 (which I have), then the defendant will have no recourse by way of appeal from that earlier decision, unless I grant leave to appeal from the decision of 20 May 1999.
Of course in a sense that argument is circular. If I was right in my decision of 20 May 1999 that the orders made on 31 March 1999 and 1 April 1999 were neither final orders nor orders in the nature of injunctions then the defendant was simply not entitled to appeal from my decision. The defendant had no more rights than any other party who needed leave to appeal from an interlocutory decision.
It follows from my dismissal of the application for leave to appeal from my decision of 30 March 1999 that I do not believe that that matter is one which raises any matter of general importance or that the refusal of leave would cause any injustice to the defendant.
As I said in those other reasons published today I believe that even if that matter had been decided in favour of the defendant, the defendant would not have succeeded in staying the proceedings except perhaps against the 13th, 14th and 15th plaintiffs. Because of the limits on the stay proceedings the other plaintiffs would have remained in place.
I therefore believe that the original decision is not one which is likely to have any real adverse effect upon the defendant.
It would follow therefore that in a consideration of this application I would need to be satisfied by the applicant that in my decision of 20 May 1999 there are some matters of general importance or some matters which might give rise to an injustice to the defendant if leave was not granted.
The second matter cannot be established because as I have said I do not believe that the defendant’s inability to appeal from that earlier decision would ever cause it an injustice.
It must follow therefore that the applicant on this application must establish that there is some matter of general importance contained in my decision of 20 May 1999.
The notice of appeal which the defendant would file if leave was granted lists seven grounds of appeal. They are;
The learned Trial Judge erred in holding that his order made in relation to the delivery up of copies of the relevant documents was interlocutory in nature.

The learned Trial Judge erred in holding that the order he made in relation to the delivery up of copies of the relevant documents was not in the nature of an injunction.

The learned Trial Judge erred in holding that the order he made for the delivery up of copies of the relevant documents was an adjectival or procedural order made for the purpose of regulating the conduct of the parties within the action itself.

The learned Trial judge erred in holding that the plaintiffs had not invoked the court’s exclusive equitable jurisdiction to restrain disclosure of confidential information.

The learned Trial Judge erred in holding that the court in making the order for delivery up of copies of the relevant documents was not exercising its exclusive equitable jurisdiction to restrain disclosure of confidential information.

The learned Trial Judge erred in holding, if he did so hold, that the attachment of an undertaking is a necessary condition for an order in the nature of an injunction.

The learned Trial Judge erred in holding that the purpose of the argument before him was merely to determine whether or not the subject documents were subject to legal professional privilege for the purposes of discovery and inspection.

I can deal with grounds 6 and 7 quickly. I did not hold that an order could not be an order in the nature of an injunction unless an undertaking was attached to it. Nor did I hold that the purpose of the argument was merely to determine whether or not the subject documents were subject to legal professional privilege for the purposes of discovery and inspection. As my reasons show, I understood that the defendant sought to use those documents in its application for a stay of proceedings.
I did hold as ground 1 claims that the order made were interlocutory and not final in nature. I also held that the orders made were not in the nature of an injunctions
The first question in my opinion does not raise any matter of general importance. The order in this matter was a discrete one brought upon a discrete application on an interlocutory application.
Whether an order is final or interlocutory is not so uncertain as it may have been; Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601; In re Page [1910] 1 Ch 489 at 493. In Licul v Corney (1976) 180 CLR 213 at 225 Gibbs J formulated the test: “Does the judgment or order as made, finally dispose of the rights of the parties.”
Whether these particular orders were final or interlocutory does not raise in my opinion any matter of general importance.
The defendant says my finding that my orders were not in the nature of injunctions does give rise to matters of general importance. It is argued that it is a matter of general importance that the jurisdiction that I exercised be identified and the orders which I made in the exercise of that jurisdiction be categorised.
It was never argued that I did not have jurisdiction to make the orders sought. It was argued that the jurisdiction ought to be exercised sparingly.
There being no question of jurisdiction, in my opinion, the exercise of the jurisdiction is not a matter of general importance.
The categorisation of these orders in my opinion is also not a matter of general importance. It does not matter for the purpose of any other proceedings whether these particular orders have been categorised by me as not being orders in the nature of injunctions. It is highly unlikely that the factual situation which gave rise to the application and the orders sought would be repeated. Even if it was, any order made is most unlikely to be in the same form.
I therefore do not think that my categorisation of these orders is a matter which gives rise to a matter of any general importance.
I can accept from the defendant’s point of view that on the face of it the categorisation of the orders is important. My categorisation means the defendant does not have a right of appeal from my orders.
However for the reasons which I have already given this matter is a discrete matter raised on an interlocutory process which will not decide anything except whether the defendant could use these documents in support of an application to stay three of the plaintiffs’ proceedings.
The application for a stay has already been dismissed. The defendant required me to hear that application notwithstanding it had not exhausted its rights, if any, on appeal. There is no longer in existence any application for a stay. There is no appeal from my failure to grant a stay. Therefore even if the defendant was successful on an appeal all that the defendant would be entitled to would be the return of a copy of the documents. These documents are not relevant to any other issue in these proceedings.
In my opinion a reversal of my decision of 30 March 1999 would not now be to the defendant’s advantage.
I dismiss the application for leave to appeal from my decision and order of 20 May 1999.

[1999] SASC 292

22 July 1999