Takano, M.H. v Shirono, M. - [1991] FCA 265

IN THE FEDERAL COURT OF AUSTRALIA )
)
QUEENSLAND DISTRICT REGISTRY

1 No QG 67 of 1990
1
GENERAL DIVISION 1

BETWEEN: MOT0 HIRO T w
(Applicant)
m:
(First Respondent)

&m: JOHN FREDERICK JOHNSON
(Second Respondent)
AND: DELAEAST PTY LTD
(Third Respondent)

: m a - Ryan J

Date: 17 April 1991

W: Brisbane

MINUTES OF ORDER

THE COURT ORDERS:

1. That the respondents, their servants and agents, be restrained from publishing or making use of any copy of a letter dated 10 May 1988 from Fitz-Walter & CO to the applicant or a trust account authority dated 12 May 1988 from the applicant to Fitz-Walter & CO or any information contained in either of those documents.

the Federal Court Rules.
9

That the costs of all parties of and incidental to the motion for an injunction herein be reserved.

NOTE: Settlement and entry of orders is dealt with in Order 36 of
IN THE FEDERAL COURT OF AUSTRALIA )

1

DUEENSLAND DISTRICT REGISTRY 1 No QG 67 of 1990
1
GENERAL DIVISION )

BETWEEN: POT0 HIRO TAKANQ
(Applicant)

m: MASAKI SHIRONQ
(First Respondent)
&Q: $OHN FREDERICK JOHNSON
(Second Respondent)
AND : PELAEAST PTY LTD
(Third Respondent)

Goram: Ryan J

Date: 17 April 1991

Place: Brisbane

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUS: An application has been made on behalf of the applicant for an order requiring the respondents to deliver up

and refrain from using in any way in these proceedings a copy letter obtained from Fitz-Walter & CO, solicitors, who acted for
the applicant, Mr Takano, in connection with the purchase and
conveyance of the and which is the subject of the substantive

I

proceedings before me. Those proceedings were instituted on 8

June 1990 by Messrs Witheriff Nyst on behalf of the applicant.

In the course of the hearing of this ancillary application,
the applicant's claim for relief was extended to cover a

memorandum dated 12 May 1988 which is described as follows in the third schedule to a supplementary affidavit of documents filed on behalf of the respondents:

"copy Trust Account Authority
and instruction to proceed
with conveyance

The circumstances in which the documents in issue came into the possession of the respondents' solicitors, Messre Steindls, are detailed in this extract from a diary note by Mr Boston, a member of that fin:

"2 r 20pm 18th January 1991

SHIRONO - TAKANO: 900392
Telephone call from Mark Fitzwalter. I asked Mark if he could tell me something about the Takano, Shirono, Delaeaat File and he said that he felt that he would be our clients' best witness because he aaid he wrote a letter to Takano saying that he believed that he could get him out of the contract if he wanted to and that he felt that he should not proceed with the purchase of this land and he said in hie letter apparently that if Takano was insistent upon proceeding contrary to Mark's advice he wanted him to sign an acknowledgment that he had…

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: [1991] FCA 265
Decision Date: 17 Apr 1991

CaseChat Overview and Summary

The case of Takano v Shirono and others involves an application by the applicant, Motohiro Takano, for an injunction to restrain the respondents from publishing or using certain documents obtained from his solicitors. The documents in question are a letter of advice dated 10 May 1988 from Fitz-Walter & Co to the applicant and a trust account authority dated 12 May 1988 from the applicant to Fitz-Walter & Co. The respondents, including Mazaki Shirono, John Frederick Johnson, and Delaeast Pty Ltd, had obtained copies of these documents from Fitz-Walter & Co's file, which were claimed to be subject to legal professional privilege.

The central legal issue before the court was whether the applicant was entitled to an injunction requiring the respondents to deliver up and refrain from using the copies of the privileged documents. The applicant argued that the equitable jurisdiction of the Court should grant such an injunction, referencing Ashburton v Pape [1913] 2 Ch 469, where a similar injunction was granted. The respondents contended that the privilege had been lost or waived, but did not argue for the admissibility of the documents in the substantive litigation.

The court considered the principles of legal professional privilege and the equitable jurisdiction of the Court to protect such privileges. The court found that the documents in question were indeed subject to legal professional privilege and that there was no evidence of waiver by the applicant or his solicitors. The court also noted that while an illegally obtained copy of a privileged document may be tendered in proceedings if relevant, the owner of the document could secure an injunction prohibiting the use of the document in separate proceedings before it had been put in evidence. The court concluded that the applicant was entitled to the injunction, emphasizing that the relief was not based on any wrongdoing by the respondents' solicitor but rather a misapprehension of the duty of confidentiality owed to the applicant.

In its judgment, the court ordered that the respondents, their servants, and agents be restrained from publishing or making use of any copy of the specified documents or any information contained therein. The court also reserved the costs of the application for further determination.

Orders