RRR Don 6 Pty Limited (In Liquidation) v First Treasure Pty Limited
[2012] FCA 332
•5 March 2012
FEDERAL COURT OF AUSTRALIA
RRR Don 6 Pty Limited (In Liquidation) v First Treasure Pty Limited [2012] FCA 332
Citation: RRR Don 6 Pty Limited (In Liquidation) v First Treasure Pty Limited [2012] FCA 332 Parties: RRR DON 6 PTY LIMITED (IN LIQUIDATION) ACN 109 480 597 and RICHARD ALBARRAN, BLAIR PLEASH AND DAVID ROSS (IN THEIR CAPACITY AS LIQUIDATORS OF RRR DON 6 PTY LIMITED (IN LIQUIDATION) ACN 109 480 597) v FIRST TREASURE PTY LIMITED ACN 131 065 631, AMIR HYSTER, MARK WESTERMAN, PETER STOREY and HYSTER AMIR SUPER FUND PTY LIMITED ACN 123 708 261 (IN ITS OWN CAPACITY AND IN ITS CAPACITY AS TRUSTEE OF THE HYSTER SUPERANNUATION FUND) File number(s): NSD 951 of 2010 Judge: EMMETT J Date of judgment: 5 March 2012 Date of hearing: 28 February and 5 March 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 6 Counsel for the plaintiffs: PR Whitford SC, DH Mitchell Solicitor for the plaintiffs: O’Neill Partners Counsel for the second defendant: T Marskell Solicitor for the second defendant: Gilbert + Tobin Counsel for the first, third, fourth and fifth defendants: The first, third, fourth and fifth defendants did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 951 of 2010
BETWEEN: RRR DON 6 PTY LIMITED (IN LIQUIDATION) ACN 109 480 597
First PlaintiffRICHARD ALBARRAN, BLAIR PLEASH AND DAVID ROSS (IN THEIR CAPACITY AS LIQUIDATORS OF RRR DON 6 PTY LIMITED (IN LIQUIDATION) ACN 109 480 597
Second PlaintiffsAND: FIRST TREASURE PTY LIMITED ACN 131 065 631
First DefendantAMIR HYSTER
Second DefendantMARK WESTERMAN
Third DefendantPETER STOREY
Fourth DefendantHYSTER AMIR SUPER FUND PTY LIMITED ACN 123 708 261 (IN ITS OWN CAPACITY AND IN ITS CAPACITY AS TRUSTEE OF THE HYSTER SUPERANNUATION FUND)
Fifth Defendant
JUDGE:
EMMETT J
DATE OF ORDER:
5 MARCH 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.There be general access to the documents produced on subpoena by McCabe Terrill Lawyers and Christopher Bunnett Lawyers.
2.The plaintiffs’ costs of and incidental to the hearings before Emmett J on 28 February 2012 and 5 March 2012 be the plaintiffs’ costs in the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 951 of 2010
BETWEEN: RRR DON 6 PTY LIMITED (IN LIQUIDATION) ACN 109 480 597
First PlaintiffRICHARD ALBARRAN, BLAIR PLEASH AND DAVID ROSS (IN THEIR CAPACITY AS LIQUIDATORS OF RRR DON 6 PTY LIMITED (IN LIQUIDATION) ACN 109 480 597
Second PlaintiffsAND: FIRST TREASURE PTY LIMITED ACN 131 065 631
First DefendantAMIR HYSTER
Second DefendantMARK WESTERMAN
Third DefendantPETER STOREY
Fourth DefendantHYSTER AMIR SUPER FUND PTY LIMITED ACN 123 708 261 (IN ITS OWN CAPACITY AND IN ITS CAPACITY AS TRUSTEE OF THE HYSTER SUPERANNUATION FUND)
Fifth Defendant
JUDGE:
EMMETT J
DATE:
5 MARCH 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By interlocutory application, the plaintiffs in this proceeding sought access to documents in respect of which the second defendant claimed legal professional privilege, as well as, in some cases, litigation privilege. The proceeding is in the docket of Rares J, who asked that another judge be found to deal with the matter, lest material that might embarrass the hearing come to his attention. Broadly, the proceeding consists of claims involving asserted breaches of fiduciary duty by a director of the first plaintiff, as well as other claims. The assertions made by the plaintiffs relate to the transfer of land owned by the first plaintiff to entities associated with the second defendant. The plaintiffs seek to recover the land for the benefit of the creditors of the first plaintiff.
Directions were made by Rares J that the second defendant file and serve an affidavit setting out in appropriate detail the basis upon which legal professional privilege was attracted. When the matter came before me last week, I was invited to examine a number of the documents that were the subject of the claim for privilege. I indicated that I would look at the documents.
It was clear enough from the material that had been furnished by the second defendant to the plaintiffs that the documents consisted of communications involving solicitors. However, the plaintiffs contended that, if any privilege was attracted, it was the plaintiffs’ own privilege, since the documents in question appeared to relate to the transfer of the land in question. The plaintiffs also said that, in any event, even if the privilege was the privilege of the second defendant, the second defendant would not be entitled to rely on legal professional privilege, having regard to the issues raised by him in his defence. Specifically, the second defendant put in issue, it was said, his state of mind in relation to the transaction in question.
It is fair to say that the description of the documents that was provided by the second defendant was inadequate for the purposes of determining, on the face of the description, whether the documents attracted legal professional privilege or not. I examined a number of the documents and indicated that some appeared to be purely conveyancing documents and therefore would not attract privilege. On the other hand, some of the documents did appear to be advice given to the second defendant in his personal capacity, and I indicated a provisional view that those documents were subject to legal professional privilege. I indicated in open court the nature of the advice in terms that ought to have been included in the description of the documents in the first place. The proceeding was then stood over to enable the parties to see whether the resolution of the dispute could be advanced in light of the provisional rulings that I gave.
When the matter was called on again this morning, I was informed that the parties had reached a compromise, and that it was no longer necessary for the Court to rule on the question of privilege. There remains, however, an issue as to the costs of the application. I am informed that, in the light of the rulings I made provisionally last week, a great majority of the documents have been made available on the basis that there is no privilege. Some other documents have been made available on the basis that, while privilege continues to be asserted, it will be waived in the interest of compromise. A small number of documents have been maintained to be the subject of privilege, and the plaintiffs have agreed not to press their claim in relation to those documents.
In order to determine finally the question of costs, it would be necessary for me to look at the documents to see whether, and to what extent, the compromises that have been reached would have been in accordance with the rulings that I would have made. That is an undesirable and unnecessary expense and effort for the parties. The plaintiffs have been substantially successful in their application. Nevertheless, the second defendant has had some measure of success. In all of the circumstances, I consider the appropriate order to be that the costs of the interlocutory application be the plaintiffs’ costs of the proceeding.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 5 April 2012
0
0
0