Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 5)

[2021] FCCA 1596

FEDERAL CIRCUIT COURT OF AUSTRALIA

Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 5) [2021] FCCA 1596

File number(s):	SYG 2771 of 2019
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	12 July 2021
Catchwords:	PRACTICE AND PROCEDURE – documents produced in answer to notice to produce redacted in relation to information said not to answer the documents called by notice to produce – whether redactions covered material that answered notice to produce.
Legislation:	Evidence Act 1995 (Cth) ss 118, 119
Number of paragraphs:	10
Date of hearing:	12 July 2021
Place:	Sydney
Counsel for the Applicants:	Mr C McMeniman, by video
Solicitor for the Applicants:	Gilbert + Tobin
Counsel for the Ninth and Fourteenth Respondents:	Mr M Heath, by video
Solicitor for the Ninth and Fourteenth Respondents:	Matthews Folbigg Lawyers

ORDERS

SYG 2771 of 2019

BETWEEN:

SELF CARE CORPORATION PTY LTD

First Applicant

SELF CARE IP HOLDINGS PTY LTD

Second Applicant

AND:

GREEN FOREST INTERNATIONAL PTY LTD ACN 607 602 988

First Respondent

YAOAN (ERIC) CHEN

Second Respondent

YILIN TRADING PTY LTD ACN 626 244 479 (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	12 JULY 2021

THE COURT ORDERS THAT:

1.All outstanding issues on questions of privilege stand over to 10:00 am on 13 July 2021.

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 2 July 2021 I made orders setting aside paragraphs 2 and 6 of a notice to produce dated 16 June 2021 issued by the applicants against the ninth and fourteenth respondents (respondents). That notice to produce was issued in relation to a dispute arising out of an application by the respondents to vary freezing orders previously made by the Court.

2. After I pronounced my orders the respondents produced documents; and the respondents identified documents falling within the paragraphs of the notice to produce that survived the application to set aside in relation to which they claimed legal professional privilege.

3. The matter came before me on 8 July 2021, the result of which was an agreement by counsel for the parties to discuss the extent to which the documents over which privilege had been claimed could be redacted. I granted the parties liberty to restore the matter before me on short notice to the extent the parties could not agree. I granted that liberty to apply having regard to the fact that the dispute relating to the variation of the freezing orders had been set down for hearing before me at 10:00 am on Tuesday 13 July 2021.

4. The matter was relisted at 2:15 pm on Monday 12 July 2021. Before I came on to the bench my associate was emailed a document titled “Part 2 - Documents in the control of Ninth Respondent and Fourteenth Respondent for which privilege from production is claimed” (List of Documents). That lists and briefly describes 49 documents, and specifies the grounds on which legal professional privilege is claimed in relation to each document. The grounds were claimed by reference to s 118 and s 119 of the Evidence Act 1995 (Cth), but there is no dispute that those sections, in substance, reflect the common law principles dealing with legal professional privilege.

5. In the course of discussion two disputes became apparent. The first concerned the extent of the redactions in relation to documents contained in the List of Documents that had been highlighted in that document. The perception of Mr McMeniman, who appeared for the applicants, was that the redactions may have been greater than warranted; but, of course, he was not in a position to say anything more than that because the only documents he did see were the redacted documents. In those circumstances it was proposed that I would review the redacted and unredacted documents. I decided that I would adjourn the matter until 4:15 pm, and in the meantime the respondents’ lawyers would provide electronically to my associate two files, one containing the documents in their redacted form, being the version in which they were given to the applicants, and the other one containing the unredacted documents. In due course I will formally mark the documents that my associate received.

6. During the adjournment I downloaded the documents. They were in zip files. I have the benefit of dual screens. I called up each and every one of the highlighted documents, one of which was redacted, and the other of which was unredacted. I then read the unredacted versions of the documents. Given the relatively limited time I had, the broad principle I applied was whether the documents appeared to me to refer or relate to the ability of the respondents to pay legal fees, and I identified the portions of the documents which referred or related to that question. I went through the highlighted documents in the List of Documents, and wrote “appropriate” next to the documents listed in the List of Documents whose redactions I considered to be appropriate and which redacted no more than ought to have been redacted; and wrote “allowed” next to the documents which I considered contained redactions that seemed to me to be inappropriate.

7. Now, I will identify the documents. There is, however, one thing I should note, and I mentioned this before I commenced to deliver these reasons for judgment. There are some documents in relation to which I have formed the view that the redactions are more extensive than they should be, but that is not the same thing as saying that the redactions that have been made in their entirety are inappropriate. I am not in a position, for a variety of reasons, to identify what I consider to be the inappropriate redactions; but I think that, once I identify the documents, those parts of the documents I have formed the view have been inappropriately redacted should be apparent to the respondents’ legal representatives.

8. I proceed to identify the documents which I have formed the view contain redactions which are beyond what I consider to be appropriate. The first is document 26, to which there is appended a separate email sent at 1:51 pm on 21 September 2020, and that appears to be the same email which is document number 27. So these are the first two documents. The other documents which I have formed the view contain greater redactions than I consider to be appropriate are documents 40, 41, 42, 43, 44, 45, 46, 47, 48, and 49. 

9. The end result of all of this will be as follows. I consider it is appropriate for the respondents to consider the documents I have identified, and they will be permitted to make any further submissions about the judgment I formed about the redactions; and any submission the respondents wish to make can be made when the matter is next before me on 13 July 2021. In the meantime, I propose to at least prepare a separate judgment, having regard to what may happen tomorrow morning, on whether those parts of the documents which I believe should not have been redacted are privileged and, if so, whether the privilege has been waived for the reasons submitted by Mr McMeniman in his written submissions, and as he supplemented them by oral submissions this afternoon.

10. So the only order I propose to make is to stand over all outstanding issues on the question of privilege to 10:00 am on 13 July 2021, and I will make an order to that effect in a moment.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       14 July 2021

SCHEDULE OF PARTIES

SYG 2771 of 2019
Respondents
Fourth Respondent:	FREEZEFRAME CHINA CO PTY LTD ACN 621 016 975
Fifth Respondent:	KEFEI (EMILIO) WANG
Sixth Respondent:	PASCAL SKELIN
Seventh Respondent:	EPAQ INTERNATIONAL PTY LTD ACN 608 870 588
Eighth Respondent:	QUANJIAN PTY LTD
Ninth Respondent:	YIPING YANG
Tenth Respondent:	TAOYU PAN
Eleventh Respondent:	KEFEI (IVAN) WANG
Twelfth Respondent:	ZUREN INTERNATIONAL PTY LTD
Thirteenth Respondent:	SIQI HUO
Fourteenth Respondent:	YULIN WANG
Fifteenth Respondent:	E-GO CHANNEL PTY LTD
Sixteenth Respondent:	AUSTRALIAN VITAMIN PLUS PTY LTD
Seventeenth Respondent:	YAN (CYNTHIA) LI