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Spatialinfo Pty Ltd v Telstra Corporation Ltd

Spatialinfo Pty Ltd v Telstra Corporation Ltd

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FEDERAL COURT OF AUSTRALIA
Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455
PRACTICE AND PROCEDURE – Subpoena – Notice to produce – Whether fishing or oppressive – Fishing – Relevance of availability of pre‑action discovery – Legal professional privilege – Whether subpoena or notice to produce can be set aside on the ground that they seek documents that are highly likely to be protected by legal professional privilege
MAINTENANCE AND CHAMPERTY – Litigation funding agreement – Funder entitled to proportion of fruits of proceeding – Whether champertous – Factors to be taken into account
Clairs Keeley v Treacy (2003) 28 WAR 139 considered
Elfic Ltd v Macks [2003] 2 Qd R 125 cited
Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd [2005] NSWCA 83 considered
Ram Coomar Coondoo v Chunder Canto Mookerjee (1876) 2 App Cas 186 cited
Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261 cited
Gore v Justice Corporation Pty Ltd (2002) 119 FCR 429 cited
Clairs Keeley v Treacey [2004] WASCA 277 considered
Commissioner for Railways v Small (1938) 38 SR (NSW) 564 cited
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 cited
Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113 cited
Treasurer of the Commonwealth of Australia v CanWest Global Communications Corp [1997] FCA 578 cited
Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 cited
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 applied
Re ACI International Ltd (1986) 11 ACLR 240 cited
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 cited
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 cited
Hamilton v Oades (1989) 166 CLR 486 applied
Pollack v Retravision (NSW) Ltd [1996] FCA 1124 applied
Re Global Medical Imaging Management Ltd (2001) 38 ACSR 214 distinguished
Apple Computer Australia Pty Ltd v Wily [2002] NSWSC 855 distinguished
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 cited
Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44 cited
Re Kingsheath Club of the Clubs Ltd [2003] FCA 1034 considered
Re Addstone Pty Ltd [1998] FCA 1568 cited
Elfic Ltd v Macks [2000] QSC 18 cited
SPATIALINFO PTY LIMITED v TELSTRA CORPORATION LIMITED
V240 OF 2004
SUNDBERG J
22 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V240 OF 2004

BETWEEN:

SPATIALINFO PTY LIMITED (ACN 071 977 921)
APPLICANT

AND:

TELSTRA CORPORATION LIMITED (ACN 051 775 556)
RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

22 APRIL 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.On the motion of IMF (Australia) Ltd and Insolvency Litigation Fund Pty Ltd notice of which was filed on 20 December 2004, the subpoena directed to IMF (Australia) Ltd and that directed to Insolvency Litigation Fund Pty Ltd be set aside.
2.On the applicant’s motion notice of which was filed on 28 January 2005:
(a)the respondent’s notice to produce…

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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Details

Case: [2005] FCA 455
Decision Date: 22 APRIL 2005

CaseChat Overview and Summary

Spatialinfo Pty Ltd sought to set aside subpoenas issued by Telstra Corporation Ltd, which required the production of certain documents. The dispute centred around issues of legal professional privilege and the disclosure of specific clauses within a funding agreement. The case was heard in a relevant Australian court. The legal issues revolved around whether the documents in question were protected by legal professional privilege and whether the applicant was required to produce the unmasked version of a particular clause within the funding agreement.

The court found that the cited cases did not provide sufficient guidance to resolve the legal professional privilege claim. It was determined that Spatialinfo was obliged to produce an unmasked copy of the remuneration provision within the funding agreement. The court concluded that the subpoenas and certain notices to produce should be set aside, while declaring that Spatialinfo must provide an unmasked version of clause 6.1 of the funding agreement.

The court's orders included setting aside the subpoenas directed to IMF (Australia) Ltd and Insolvency Litigation Fund Pty Ltd, as well as the respondent's notice to produce dated 13 December 2004. The court also declared that Spatialinfo was required to produce an unmasked copy of clause 6.1 of the funding agreement, but was not obliged to produce any other masked parts thereof. Additionally, the court set aside the respondent's notice to produce dated 11 February 2005 insofar as it sought documents in the fourth to thirteenth categories.

Orders

Orders of the court

1. On the motion of IMF (Australia) Ltd and Insolvency Litigation Fund Pty Ltd notice of which was filed on 20 December 2004, the subpoena directed to IMF (Australia) Ltd and that directed to Insolvency Litigation Fund Pty Ltd be set aside.

2. On the applicant’s motion notice of which was filed on 28 January 2005:

(a) the respondent’s notice to produce dated 13 December 2004 be set aside; and

(b) it be declared that the applicant is obliged to produce to the respondent an unmasked copy of clause 6.1 of the Funding Agreement made 1 July 2004 between IMF (Australia) Ltd, Insolvency Litigation Fund Pty Ltd and the applicant (and others), but is not obliged to produce any other masked parts thereof.

3. On the applicant’s motion notice of which was filed on 21 February 2005, the respondent’s notice to produce dated 11 February 2005 be set aside insofar as it seeks the documents in the fourth to thirteenth categories thereof.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SUNDBERG J

In the circumstances I have not found Kingsheath or the other cases of assistance in resolving the legal professional privilege claim. Spatialinfo should produce the remuneration provision.CONCLUSION The result of the foregoing is that the subpoenas will be set aside, the second notice to produce will be set aside, and paras 4 to 13 of the third notice to produce will be set aside. As to the first notice to produce, I will declare that Spatialinfo is obliged to produce an unmasked copy of clause 6.1 of the funding agreement.

Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V240 OF 2004

BETWEEN:	SPATIALINFO PTY LIMITED (ACN 071 977 921) APPLICANT
AND:	TELSTRA CORPORATION LIMITED (ACN 051 775 556) RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	22 APRIL 2005
WHERE MADE:	MELBOURNE