Singtel Optus Pty Limited v Weston [2011] NSWSC 1083
Hearing dates:
Thursday, 1 September 2011
Decision date:
16 September 2011
Jurisdiction:
Equity Division - Corporations List
Before:
White J
Decision:
1 . Order that the plaintiffs produce for inspection by the defendant the first page of document 558 in tab 7A.
2. Order that the defendant's amended interlocutory process filed on 19 August 2011 be otherwise dismissed.
Catchwords:
PRACTICE AND PROCEDURE - privilege - whether common law or Evidence Act 1995 applies - s 131A, Evidence Act - Evidence Act and not the common law applies where the objection to inspection taken by person required to produce documents on subpoena or notice to produce - s 131A, Evidence Act only applies where person objecting to disclosure on ground of privilege is same person required to produce document
PRACTICE AND PROCEDURE - privilege - waiver - no question of principle
Singtel Optus Pty Limited (Plaintiff) Paul Gerard Weston (Defendant)
Representation:
J A C Potts with C E Bannan (Plaintiff) N Cotman SC with R Glasson (Defendant) Baker & McKenzie (Plaintiff) O'Neill Partners (Defendant)
File Number(s):
2010/71799
Judgment
HIS HONOUR : This application concerns claims by the respondents to privilege against the inspection of documents produced pursuant to subpoenas and notices to produce.
In the proceedings the plaintiffs seek the removal of the defendant as special purpose liquidator of One.Tel Limited (In Liq) ("One.Tel") and an inquiry into his conduct as special purpose liquidator. The plaintiffs are Singtel Optus Pty Limited ("Singtel Optus") and certain of its subsidiaries. The plaintiffs, or at least some of them, are substantial creditors of One.Tel.
For a considerable period there were disputes between the defendant and the committee of inspection of One.Tel. In the proceedings for the removal of the defendant as special purpose liquidator and for an inquiry into his conduct the defendant has served notices to produce on the plaintiffs and on at least one company (Telstra Corporation Limited ("Telstra")) that entered an appearance, although not named as a party, and has served subpoenas for the production of documents. Subpoenas have been issued to members of the committee of inspection and to certain of the creditors of One.Tel.
The plaintiffs and members of the committee of inspection have claimed…
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.
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AGLC
Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083
Case
[2011] NSWSC 1083
Decision Date
CaseChat Overview and Summary
Singtel Optus Pty Ltd commenced proceedings against Michael Weston in the Federal Court, seeking to compel him to produce certain documents. The nature of the dispute was rooted in the confidentiality of certain communications between Singtel Optus and its legal advisors. The central issue before the court was whether the common law or the Evidence Act 1995 should be applied in determining the privilege of these communications. The case hinged on the interpretation and application of section 131A of the Evidence Act, which provides that the Act and not the common law applies where the objection to inspection is taken by a person required to produce documents on a subpoena or notice to produce. The court was required to determine if section 131A applied in circumstances where the person objecting to disclosure on the ground of privilege was not the same person required to produce the document.
The court found that section 131A of the Evidence Act applied only where the person objecting to the disclosure on the ground of privilege was the same person required to produce the document. As Singtel Optus was not the person required to produce the documents, the court held that the common law applied. The court reasoned that the statutory scheme of the Evidence Act did not intend to exclude the application of the common law in all circumstances, and that the common law should apply where the person objecting to disclosure was not the person required to produce the documents. The court further noted that there was no question of principle in the case regarding the waiver of privilege.
The Federal Court held that the common law applied to the privilege of the communications between Singtel Optus and its legal advisors, and that the Evidence Act did not exclude the application of the common law in these circumstances. The court found that there was no waiver of privilege by Singtel Optus. The court did not make any orders as the matter was resolved on the basis of the application of the common law to the privilege of the communications.