Spinks, John v Prentice, Maxwell William

[1998] FCA 1178

FEDERAL COURT OF AUSTRALIA

Practice and Procedure – application to inspect documents – no claim for legal professional privilege made with respect to documents – whether to grant application.

IN THE MATTER OF WHITE CONSTRUCTIONS (ACT) PTY LIMITED (IN LIQUIDATION)

JOHN SPINKS AND OTHERS V MAXWELL WILLIAM PRENTICE

NG 3100 OF 1998

JUDGES:      BEAUMONT J

DATED:       19 AUGUST 1998
PLACE:        SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3100 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

IN THE MATTER OF WHITE CONSTRUCTIONS (ACT) PTY LIMITED (IN LIQUIDATION)
BETWEEN	JOHN SPINKS AND OTHERS APPLICANTS
AND:	MAXWELL WILLIAM PRENTICE RESPONDENT
JUDGES:		BEAUMONT J
DATE OF ORDER:		19 AUGUST 1998
WHERE MADE:		SYDNEY

ORDERS:

1. Application for leave to inspect documents refused.

1. Costs reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 3100 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

IN THE MATTER OF WHITE CONSTRUCTIONS (ACT) PTY LIMITED (IN LIQUIDATION)
BETWEEN:	JOHN SPINKS AND OTHERS APPLICANTS
AND:	MAXWELL WILLIAM PRENTICE RESPONDENT

JUDGES:	BEAUMONT J
DATE:	19 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ON APPLICATION FOR LEAVE TO INSPECT DOCUMENTS)

BEAUMONT J.

Before the court is an application for leave to inspect documents made on behalf of the applicant for special leave before the Full Court yesterday.  Orders were made yesterday granting access to Mr Grieve and the other legal representatives appearing for the liquidator. 

It appears that the matter was before a Registrar yesterday for the purpose of settling the undertaking as to confidentiality that was imposed as a term of the grant of access to the documents produced for the purpose of the examination. 

The matter has come before me at short notice this morning on an urgent application on behalf of the directors and other persons represented by Mr White in an informal way.  This is understandable because of the urgency of the matter.  However, I have had the benefit of some argument.  I am informed by Mr Grieve that inspection of the documents is about to take place so that it is incumbent upon me to make a decision immediately.
I am of the view that I should refuse the application for access made by Mr White, but I do so, as I indicated in the course of argument, without prejudice to any claim for privilege that may be made on behalf of his clients.  As I understand the present course of the proceedings, no such claim has yet been made although it has been indicated to me that it will be asserted at some point.

If such a claim were made, consideration would need to be given to the machinery that would be appropriate to deal with such a claim.  At this point of time, however, there is no such claim before me, and, of course, in those circumstances, I will not attempt to deal with it or even to suggest possible machinery that may be appropriate to manage such a claim fairly between the parties. 

I should note, however, for the record, that I have been informed that no attempt has been made to contact Coopers & Lybrand and to inquire whether, at least in their knowledge and belief, any of the documents produced by them are of a kind that might be the subject of a claim for legal professional privilege. 

I should further note that it is not suggested that any privilege against self-incrimination is to be raised in the present context.  The application made by Mr White is refused.  I will reserve the question of costs.

ORDERS

1. Application for leave to inspect documents refused.

1. Costs reserved.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Acting Associate:

Dated:            10 September 1998

Counsel for the Applicant:	R W White
Solicitor for the Applicant:	Mallesons Stephen Jaques
Counsel for the Respondent:	D E Grieve QC
Solicitor for the Respondent:	Deacons Graham & James
Date of Hearing:	19 August 1998
Date of Judgment:	19 August 1998