Stirling Lindley Horne (as Liquidator of M.I. Group (Aust) Pty Ltd (Receiver and Manager Appointed) (In Liquidation)) (ACN 105339 688) v Bryantcraft Pty Ltd (ACN 051 700 791)

[2007] FCA 850

FEDERAL COURT OF AUSTRALIA

In the matter of M.I. Group (Aust) Pty Ltd (Receiver and Manager Appointed) (In Liquidation) (ACN 105 339 688);
Stirling Lindley Horne (as Liquidator of M.I. Group (Aust) Pty Ltd (Receiver and Manager Appointed) (In Liquidation)) (ACN 105 339 688) v Bryantcraft Pty Ltd (ACN 051 700 791)[2007] FCA 850

IN THE MATTER OF M.I. GROUP (AUST) PTY LTD (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION) (ACN 105 339 688)

STIRLING LINDLEY HORNE (AS LIQUIDATOR OF M.I. GROUP (AUST) PTY LTD) (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION) (ACN 105 339 688) v BRYANTCRAFT PTY LTD (ACN 051 700 791) & ORS
VID 699 OF 2006

GORDON J
25 MAY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 699 OF 2006

BETWEEN:

STIRLING LINDLEY HORNE (AS LIQUIDATOR OF M.I. GROUP (AUST) PTY LTD) (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION) (ACN 105 339 688)
Applicant

AND:

BRYANTCRAFT PTY LTD (ACN 051 700 791)
First Defendant

GLEN ANTHONY CRISP (AS RECEIVER AND MANAGER OF M.I. GROUP (AUST) PTY LTD (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION) (ACN 105 339 688)
Second Defendant

THE REGISTRAR OF TITLES (VICTORIA)
Third Defendant

THE RECORDER OF TITLES (TASMANIA)
Fourth Defendant

JUDGE:	GORDON J
DATE OF ORDER:	25 MAY 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.In relation to the First Defendant’s LPP claim, as that matter is referred to or described in the order of 27 April 2007:

(1)The first and second defendants file and serve any affidavits and an outline of contentions of facts and law in response to the plaintiff’s affidavit and outline of contentions of facts and law dated 11 May 2007, by 4 pm on 28 May 2007;

(2)The further hearing of the application be adjourned to 31 May 2007 at 9.30 am;

(3)The defendants pay the applicant’s costs of today, and those costs be paid forthwith.

2.In relation to the interlocutory process, as that matter is referred to and described in the order of 27 April 2007:

(1)The first and second defendants file and serve any affidavits and an outline of contentions of facts and law in response to the interlocutory process of the plaintiff, issued on 22 May 2007, on or before 4 pm on 28 May 2007;

(2)The plaintiff file and serve any affidavits in reply and an outline of contentions of facts and law on or before 12 noon on 30 May 2007.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 699 OF 2006

BETWEEN:

STIRLING LINDLEY HORNE (AS LIQUIDATOR OF M.I. GROUP (AUST) PTY LTD) (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION) (ACN 105 339 688)
Applicant

AND:

BRYANTCRAFT PTY LTD (ACN 051 700 791)
First Defendant

GLEN ANTHONY CRISP (AS RECEIVER AND MANAGER OF M.I. GROUP (AUST) PTY LTD (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION) (ACN 105 339 688)
Second Defendant

THE REGISTRAR OF TITLES (VICTORIA)
Third Defendant

THE RECORDER OF TITLES (TASMANIA)
Fourth Defendant

JUDGE:	GORDON J
DATE:	25 MAY 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. I have before me an application by the first defendant, in substance, for leave to file answering material in support of an application which objects to production of documents on the grounds of legal professional privilege.  The matter first came before me on Friday, 27 April 2007, where, on the suggestion of Finkelstein J, who previously had management of this matter, it had been suggested that the first defendant’s claim for legal professional privilege would be dealt with on the papers.

2. Consistent with that approach, I made orders on that day:

   (1)That the first defendant:

   (a)file with the court:

   (i)a redacted copy of the documents numbered 329 to 356 of the first defendant’s list of documents over which it claims legal professional privilege, either in part or in whole;

   (ii)a clean copy of the documents over which it claims legal professional privilege, either in part or in whole; and

   (iii)an outline of facts and contentions as to its claim for legal professional privilege in relation to each said document;

   (b)file and serve upon the plaintiff:

   (i)a redacted copy of the documents over which it claims legal professional privilege, either in part or in whole; and

   (iii)an outline of facts and contentions as to its claim for legal professional privilege in relation to each said document;

   “the First Defendant’s LPP claim”

   on or before 4 May 2007; and

   (2)The plaintiff file and serve its outline of facts and contentions in response to the First Defendant’s LPP claim on or before 11 May 2007.

   Both the first defendant and the plaintiff complied with those orders, albeit late. 

3. Consistent with what transpired on 27 April, I proceeded to prepare my reasons for decision.  An application has now been made before me for the first defendant to be given leave to file what I am told is additional affidavit material to be provided by Mr Indovino, a solicitor, seeking to address two issues:

   (1)first, the solicitor/client relationship, presumably upon which the First Defendant’s LPP claim is based; and

   (2)       secondly, the question of waiver.

4. On any view, that application is made late.  I do not accept the submission that it was the intention either of the parties or of my orders on 27 April that the First Defendant’s LPP claim would be heard and determined on 31 May 2007.  It is clear from the orders made on 27 April that the hearing on 31 May 2007 related to what is described in those orders as:

   “any interlocutory process in respect of the adequacy of the discovery of the

   Defendants-”

   and which was the subject of orders (3), (4), (5) and (6).  That fact is made abundantly clear by order (6), which provides that it is the plaintiff’s Interlocutory Process which is to be heard on 31 May on an estimate of half a day.

5. Notwithstanding the failure of the first defendant to take any formal step to seek to provide me with additional material before this morning, albeit a few minutes before judgment was to be delivered, and notwithstanding no formal material has been proffered to seek to explain why it is that it has taken them this long to do that, I propose to grant them leave to file affidavit material and any additional affidavits and contentions by 4 pm on 28 May 2007.  I do so on two conditions: 

   (1)that the defendants pay the plaintiff’s costs of appearing this morning.  Absent the application, there would have been no need to attend and secondly, the matter could have been dealt with on the papers; and

   (2)       that those costs be paid forthwith.

   CONCLUSION

6. I shall make orders in the following terms:

   1.In relation to the First Defendant’s LPP claim, as that matter is referred to or described in the order of 27 April 2007:

   (1)The first and second defendants file and serve any affidavits and an outline of contentions of facts and law in response to the plaintiff’s affidavit and outline of contentions of facts and law dated 11 May 2007, by 4 pm on 28 May 2007;

   (2)The further hearing of the application be adjourned to 31 May 2007 at 9.30 am;

   (3)The defendants pay the applicant’s costs of today, and those costs be paid forthwith.

   2.In relation to the interlocutory process, as that matter is referred to and described in the order of 27 April 2007:

   (1)The first and second defendants file and serve any affidavits and an outline of contentions of facts and law in response to the interlocutory process of the plaintiff, issued on 22 May 2007, on or before 4 pm on 28 May 2007;

   (2)The plaintiff file and serve any affidavits in reply and an outline of contentions of facts and law on or before 12 noon on 30 May 2007.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate:

Dated:       31 May 2007

Counsel for the Applicant:	Mr APP Rodbard-Bean
Solicitor for the Applicant:	Dibbs Abbott Stillman
Counsel for the Respondent:	Mr A Phillips
Solicitor for the Respondent:	Gadens Lawyers
Date of Hearing:	25 May 2007
Date of Judgment:	25 May 2007