FEDERAL COURT OF AUSTRALIA
Stuart v Rabobank Australia Ltd [2017] FCA 284
File number: NSD 717 of 2015 Judge: ROBERTSON J Date of judgment: 20 March 2017 Catchwords: EVIDENCE – legal professional privilege – whether waiver of privilege by operation of law – claim by first respondent for stay or dismissal of substantive proceedings on the basis that those substantive proceedings had been settled by agreement – whether waiver of legal professional privilege in applicants’ communications with their lawyers by service of applicants’ affidavits disclosing the terms of those communications – whether issue waiver where applicants’ contention that there was no agreement to settle the substantive proceedings as alleged by the first respondent or no authority for their former lawyers to enter into such agreement Legislation: Evidence Act 1995 (Cth) s 122 Cases cited: Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; 174 FCR 547
Benecke v National Australia Bank (1993) 35 NSWLR 110
Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88; 246 ALR 137
Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283
Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117
Mann v Carnell [1999] HCA 66; 201 CLR 1
Northern Territory v GPAO [1999] HCA 8; 196 CLR 553
State Bank of South Australia v Smoothdale (No 2) Ltd [1995] SASC 5478; 64 SASR 224
Date of hearing: 17 and 20 March 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 24 Counsel for the Applicants: Mr PE King Solicitor for the Applicants: Spencer & Co Legal Counsel for the First Respondent: Mr SE Gray Solicitor for the First Respondent: Gadens Lawyers Counsel for the Second and Third Respondents: The Second and Third Respondents did not appear ORDERS
NSD 717 of 2015 BETWEEN: MARK LINDSAY STUART
First Applicant
CATHERINE ENID STUART
Second Applicant
AND: RABOBANK AUSTRALIA LTD
First Respondent
WILLIAM MARTIN COWELL
Second Respondent
TIMOTHY JAMES MICHAEL
Third Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
20 MARCH 2017
THE COURT ORDERS THAT:
1.Leave be granted to the first respondent to have access to, inspect and copy in the Registry, the documents produced in accordance with the subpoenas addressed to Catherine Higgins (S2) and James W Kewley (S3).
2.Leave be also granted to the solicitors for the first respondent (Gadens Lawyers) to uplift those documents, for the purposes of inspection and copying, on the following conditions:
(a)the documents not leave the custody of the solicitors;
(b)the documents be returned to the Registry in the same condition, order and packaging as when uplifted; and
(c)the documents be returned promptly and, in any event, when an officer of the Registry so requests.
3.The applicants’ pay the costs of the first…
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- Case
- [2017] FCA 284
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the applicants had waived their legal professional privilege through the service of their affidavits, which disclosed the terms of their communications with their lawyers. Specifically, the court had to determine whether the waiver of privilege occurred by operation of law, or if the applicants' contention that there was no agreement to settle the substantive proceedings, or no authority for their former lawyers to enter into such an agreement, prevented the waiver.
The court found that the applicants had waived their legal professional privilege. The reasoning was that by disclosing the content of their communications with their lawyers in their affidavits, the applicants had effectively waived the privilege as it pertained to those communications. This waiver occurred regardless of the applicants' contention that there was no agreement to settle the proceedings or that their former lawyers lacked authority to settle. The court thus granted the first respondent's application for access to the subpoenaed documents, with certain conditions to ensure the documents remained in secure custody during inspection and were returned promptly to the registry.
In summary, the court ordered that the first respondent be granted leave to access, inspect and copy the subpoenaed documents, subject to specific conditions to safeguard the documents. Additionally, the applicants were ordered to pay the costs of the first respondent's interlocutory application, excluding the costs associated with the appearance on 17 March 2017.
Orders
Orders of the court
1. Leave be granted to the first respondent to have access to, inspect and copy in the Registry, the documents produced in accordance with the subpoenas addressed to Catherine Higgins (S2) and James W Kewley (S3).
2. Leave be also granted to the solicitors for the first respondent (Gadens Lawyers) to uplift those documents, for the purposes of inspection and copying, on the following conditions:
(a) the documents not leave the custody of the solicitors;
(b) the documents be returned to the Registry in the same condition, order and packaging as when uplifted; and
(c) the documents be returned promptly and, in any event, when an officer of the Registry so requests.
3. The applicants’ pay the costs of the first respondent of its interlocutory application for access to the documents produced in answer to the subpoenas referred to in order 1, as agreed or assessed, those costs not to include the costs of the appearance on 17 March 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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