Transpacific Cleanaway Pty Ltd v Wilson - [2009] WASC 306

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TRANSPACIFIC CLEANAWAY PTY LTD -v- WILSON [2009] WASC 306

CORAM: LE MIERE J

HEARD: 23 JUNE 2009

DELIVERED : 16 OCTOBER 2009

FILE NO/S: CIV 1757 of 2008

BETWEEN: TRANSPACIFIC CLEANAWAY PTY LTD (ACN 000 164 938)
Plaintiff
AND
LEIGH WILSON
First Defendant
LEIGH WILSON atf the WILSON FAMILY TRUST
Second Defendant
GOLDCROWN CORPORATION PTY LTD (ACN 104 069 838)
Third Defendant
GOLDCROWN CORPORATION PTY LTD (ACN 104 069 838) atf the WILSON FAMILY TRUST
Fourth Defendant

Catchwords:

Practice and procedure - Discovery - Whether defendants should provide a full description of documents the subject of a claim of privilege - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 4

Result:

Application granted in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr K J Mony de Kerloy
First Defendant             :     Mr S Ellis
Second Defendant         :     Mr S Ellis
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance

Solicitors:

Plaintiff:     Freehills
First Defendant             :     Western Legal
Second Defendant         :     Western Legal
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance

Case(s) referred to in judgment(s):

Boase v Seven Network (Operations) Ltd [2005] WASC 174
Derby & Co Ltd v Weldon (No 7) [1990] 1 WLR 1156
Gardner v Irvin (1878) 4 Ex D 49
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 2) [1999] 1 Qd R 163
Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410
Lazenby v Zammit (1987) Tas R 54
Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204
Taylor v Batten (1878) 4 QBD 85

LE MIERE J: The plaintiff applies for an order that the first and second defendants provide a full description of all documents the subject of a claim of privilege against self incrimination. I will refer to the first and second defendants as 'the defendants'.

The plaintiff's claim

In its re‑amended statement of claim filed 1 April 2009 the plaintiff pleads the following case. Between 2003 and 23 August 2007 the first defendant (Mr Wilson) was employed by the plaintiff as a technical services manager and operations manager. Mr Wilson was the trustee for the Wilson Family Trust (the Trust). PSS Project Support Services (PSS) was a business effectively owned and controlled by Mr Wilson. Tank & Vessel Engineering Pty Ltd (TVE) is a company providing maintenance and other services. Between 2003 and 2006 the plaintiff engaged TVE as one of its primary contractors to undertake certain works for the plaintiff. The first defendant caused PSS to issue invoices to TVE (PSS invoices) knowing that the invoices would be incorporated into invoices which would be rendered by TVE to the plaintiff. The plaintiff paid each TVE invoice. Following payment by the plaintiff of the TVE invoices, TVE paid the PSS invoices to PSS which payments were in turn paid to Mr Wilson and/or the Trust or to third…

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.

Continue reading Transpacific Cleanaway Pty Ltd v Wilson

Details

AGLC: Transpacific Cleanaway Pty Ltd v Wilson [2009] WASC 306
Case: [2009] WASC 306
Decision Date: 16 OCTOBER 2009

CaseChat Overview and Summary

Transpacific Cleanaway Pty Ltd, the plaintiff, took legal action against Wilson, the defendant, in an Australian court over an issue related to the discovery of documents. The plaintiff sought a more detailed description of certain documents claimed to be privileged by the defendant. The central issue before the court was whether the defendant was required to provide a comprehensive description of the documents in question, or if a more generic description would suffice. The court examined the principles governing discovery and privilege claims, focusing on the balance between protecting a party's rights and ensuring the other party has adequate information to challenge the privilege claim.

The court determined that the description of documents need not be detailed enough to enable the privilege claim to be tested, but rather, it should be sufficient for identifying each document if production is required. The court found that the method of identifying documents, as outlined in the Interchase Corporation Ltd case, where each document is marked with a letter and a number, is the minimum requirement. When possible, the defendant should describe the nature of each document or bundle of documents without indirectly disclosing their contents or providing evidence against the defendant. In this case, the court accepted that the defendant could describe some documents as income tax returns and bank statements, without disclosing their contents or incriminating himself. For other documents described as financial records or financial documents, the defendant was not required to provide a more detailed description. A generic description, such as "financial records" or "financial documents," along with the date range of the documents, was deemed sufficient. Each document should be separately marked with a letter, number, or another method to enable identification if production is required.

The court ruled in favour of the defendant, stating that the description of documents need not be overly detailed, but rather, it should be enough to identify each document if production is required. The court emphasised that when possible, the defendant should describe the nature of the documents without indirectly disclosing their contents or incriminating themselves. In this case, the court found that the defendant's description of certain documents as income tax returns and bank statements was acceptable, while a generic description was sufficient for other documents. The court also stressed the importance of marking each document with a letter, number, or another method to enable identification if production is required. The court's decision provided clarity on the level of detail required for describing documents claimed to be privileged in discovery proceedings.

Orders

Orders of the court

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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

The description does not have to be sufficiently detailed to enable the claim for privilege to be tested. It is sufficient if the documents are described sufficiently to enable each of them to be identified if they are required to be produced. The method adopted in Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 2) of identifying the documents by the marking of each document with a letter and a number is the minimal requirement. Where it is practicable to do so the defendants should describe the nature of each document or bundle of documents without indirectly disclosing their contents or furnishing evidence against the defendants. For example, in their letter of 19 May 2009 the solicitors for the defendants stated that the documents related to the period from 2003 ‑ 2006 and include income taxation returns and bank statements. I infer from that statement that Mr Wilson may describe some of the documents as income taxation returns and some of the documents as bank statements without disclosing their contents or otherwise incriminating himself. I accept that there are other documents that Mr Wilson has described as financial records or financial documents that he cannot further describe without incriminating himself. He is not required to provide any more detailed description of the nature of the document. It would be sufficient if such documents are described by a generic description such as 'financial records' or 'financial documents' and the range of dates relating to the documents is stated. Each document should be separately marked with a letter or number or in some other way so that it may be identified if it is required to be produced.