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Zomojo Pty Ltd v Hurd

Zomojo Pty Ltd v Hurd

Case [2012] FCA 1175 23 October 2012

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FEDERAL COURT OF AUSTRALIA
Zomojo Pty Ltd v Hurd [2012] FCA 1175

Citation: Zomojo Pty Ltd v Hurd [2012] FCA 1175

Parties: ZOMOJO PTY LTD (ACN 114 604 269) v MATTHEW HURD, ZEPTONICS PTY LTD (ACN 141 647 716), CROSSWISE PTY LTD (ACN 140 717 317), MD HAMMER PTY LTD (ACN 149 869 189), ZEPTO MARKETS PTY LTD (ACN 150 529 301), ZEPTO MARKETS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087) and TRADEMACH PTY LTD (ACN 155 683 864); MATTHEW HURD, JOLENE (TAS) PTY LTD and HURD FAMILY SUPERANNUATION FUND; ZOMOJO PTY LTD (ACN 114 604 269)

File number: VID 1478 of 2011

Judge: TRACEY J

Date of judgment: 23 October 2012

Publication of reasons: 26 October 2012

Catchwords:
PRACTICE AND PROCEDURE – Notice to produce – whether waiver of legal professional privilege – respondents not required to produce document in question

COSTS – Applicant induced to pursue claim for access erroneously by respondent – respondent to pay applicant’s costs of and incidental to the hearing

Date of hearing: 23 October 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 11

Counsel for the Applicant/Cross-Respondent: Dr M Sharpe

Solicitor for the Applicant/Cross-Respondent: Corrs Chambers Westgarth

Counsel for the First Respondent/First-Cross-Claimant: Mr D Parish

Solicitor for the First Respondent/First Cross-Claimant: Clayton Utz

Counsel for the Second, Third, Fourth, Fifth, Seventh and Eight Respondents/Second Cross-Claimant: Counsel for the Second, Third, Fourth, Fifth, Seventh and Eight Respondents/Second Cross-Claimant did not appear

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1478 of 2011

BETWEEN:
ZOMOJO PTY LTD (ACN 114 604 269)
Applicant

MATTHEW HURD
First Cross-Claimant

JOLENE (TAS) PTY LTD
Second Cross-Claimant

HURD FAMILY SUPERANNUATION FUND
Third Cross-Claimant

AND:
MATTHEW HURD
First Respondent

ZEPTONICS PTY LTD (ACN 141 647 716)
Second Respondent

CROSSWISE PTY LTD (ACN 140 717 317)
Third Respondent

MD HAMMER PTY LTD (ACN 149 869 189)
Fourth Respondent

ZEPTO MARKETS PTY LTD (ACN 150 529 301)
Fifth Respondent

ZEPTO MARKETS PTY LTD (ACN 156 138 000)
Sixth Respondent

ZEPTOIP PTY LTD (ACN 156 133 087)
Seventh Respondent

TRADEMACH PTY LTD (ACN 155 683 864)
Eighth Respondent

ZOMOJO PTY LTD (ACN 114 604 269)
Cross-Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

23 OCTOBER 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The respondents not be required to produce the document numbered 2 in the applicant’s notice to produce dated 22 October 2012.
2.The respondents pay the applicant’s costs of and incidental to the hearing of the respondents’ claim of legal professional privilege in relation to the document numbered 2 in the applicant’s notice to produce dated 22 October 2012.
3.Liberty to apply.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1478 of 2011

BETWEEN:
ZOMOJO PTY LTD (ACN 114 604 269)
Applicant

MATTHEW HURD
First Cross-Claimant

JOLENE (TAS) PTY LTD
Second Cross-Claimant

HURD FAMILY SUPERANNUATION FUND
Third Cross-Claimant

AND:
MATTHEW…

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 Zomojo Pty Ltd v Hurd

Details

AGLC: Zomojo Pty Ltd v Hurd [2012] FCA 1175
Case: [2012] FCA 1175
Decision Date: 23 October 2012

CaseChat Overview and Summary

Zomojo Pty Ltd, the applicant, sought a court order compelling the respondents, Hurd and others, to produce certain documents as part of ongoing legal proceedings. The dispute centred on a specific document listed in the applicant's notice to produce dated 22 October 2012. The respondents claimed legal professional privilege over this document, arguing it should not be disclosed. The matter was heard in the Federal Court of Australia.

The court needed to determine whether the respondents were required to produce the document in question despite their claim of legal professional privilege. Additionally, the court had to consider the costs implications of the respondents' actions that led the applicant to erroneously pursue the claim for access to the document. Specifically, the court needed to assess if the respondents' conduct warranted an order for the applicant to be compensated for costs incurred in pursuing the claim.

In its decision, the court found that the respondents were not required to produce the document, upholding their claim of legal professional privilege. The court ruled that the respondents had not waived their privilege by disclosing the document to certain parties. Furthermore, the court held that the respondents' conduct had induced the applicant to pursue the claim for access erroneously, leading to an order for the respondents to pay the applicant's costs of and incidental to the hearing. The court also granted the applicant liberty to apply for further orders if necessary.

The orders issued by the court were that the respondents would not be required to produce the document in question, the respondents would pay the applicant's costs of and incidental to the hearing of the respondents' claim of legal professional privilege, and the applicant was granted liberty to apply for further orders if needed. These orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The respondents not be required to produce the document numbered 2 in the applicant’s notice to produce dated 22 October 2012.

2. The respondents pay the applicant’s costs of and incidental to the hearing of the respondents’ claim of legal professional privilege in relation to the document numbered 2 in the applicant’s notice to produce dated 22 October 2012.

3. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Zomojo Pty Ltd v Hurd [2012] FCA 1175

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Legislation cited in this decision · 1

Federal Court Rules 2011 (Cth)
1 mention

Citation:	Zomojo Pty Ltd v Hurd [2012] FCA 1175
Parties:	ZOMOJO PTY LTD (ACN 114 604 269) v MATTHEW HURD, ZEPTONICS PTY LTD (ACN 141 647 716), CROSSWISE PTY LTD (ACN 140 717 317), MD HAMMER PTY LTD (ACN 149 869 189), ZEPTO MARKETS PTY LTD (ACN 150 529 301), ZEPTO MARKETS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087) and TRADEMACH PTY LTD (ACN 155 683 864); MATTHEW HURD, JOLENE (TAS) PTY LTD and HURD FAMILY SUPERANNUATION FUND; ZOMOJO PTY LTD (ACN 114 604 269)
File number:	VID 1478 of 2011
Judge:	TRACEY J
Date of judgment:	23 October 2012
Publication of reasons:	26 October 2012
Catchwords:	PRACTICE AND PROCEDURE – Notice to produce – whether waiver of legal professional privilege – respondents not required to produce document in question COSTS – Applicant induced to pursue claim for access erroneously by respondent – respondent to pay applicant’s costs of and incidental to the hearing
Date of hearing:	23 October 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant/Cross-Respondent:	Dr M Sharpe
Solicitor for the Applicant/Cross-Respondent:	Corrs Chambers Westgarth
Counsel for the First Respondent/First-Cross-Claimant:	Mr D Parish
Solicitor for the First Respondent/First Cross-Claimant:	Clayton Utz
Counsel for the Second, Third, Fourth, Fifth, Seventh and Eight Respondents/Second Cross-Claimant:	Counsel for the Second, Third, Fourth, Fifth, Seventh and Eight Respondents/Second Cross-Claimant did not appear

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1478 of 2011

JUDGE:	TRACEY J
DATE OF ORDER:	23 OCTOBER 2012
WHERE MADE:	MELBOURNE