Duke Pacific Finance Ltd (in liq) v Gordon & Anor [1992] QSC 52

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in· this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE Master No 525 of 1990 REVISED COPIEs ISf:;_;z:o I Court Flapor\ing Burea:J _r:_~to, -:24 I 2.. I 72_ ...... DUKE PACIFIC FINANCE LIMITED (in Liquidation) Plaintiff and NOEL FRANCIS GORDON and JALONE PTY LTD BRISBANE .. DATE 30/01/92 JUDGMENT 1 First Defendant Second Defendant -- 1 of 6 -- 300192 JUDGMENT MASTER: In their "amended" affidavit of documents, which should be described as a supplementary affidavit c.: documents, filed by the defendants on 30 January 1, . , the defendants have claimed privilege from productin of a number of documents. The affidavits have both been made by Noel Francis Gordon in his personal capacity as the first defendant and as director of the second defendant. They contain, as far as I am aware, the same documents. Paragraph 3 of the affidavits sets up the claim of privilege of the documents described in Schedule 1 Part 2. The relevant documents are described compendiously as correspondence and copies between the defendants and their legal advisors. There follows, "A McLaughlin, Gordon and Lennon correspondence file", and a description of each document and a date. McLaughlin Gurdon and ~ennon werq the previous solicitors for the defendants, as I apprehend the material. After that comes "B file of Primrose Cooper Cronan, Rudkin litigation file"· and J Cronan Rudkin- commercial file". "C Primrose Cooper Each subsection is followed by a description of the documents contained therein. It is unnecessary to consider the facts of the action in any detail, suffice it to note that the plaintiff was the financier of a joint venture with interests controlled by the first defendant to develop a large luxury area of units and houses, known as Seaquester Quays. It appears that there were a number of companies controlled by the first defendant involved in the 2 10 20 30 40 50 60 -- 2 of 6 -- 300192 JUDGMENT development of the venture. The first and second defendants guaranteed the due performance of va:..·-·_c.-r:ts loans and they are sued by the plaintiff on the gua .:::.-,tees. Paragraph 3 of the amended affidavit of documents provides: " ..• objects to producing the documents set forth in Part 2 of the said Schedule on the grounds that the documents are privileged from production beingprofessional communications of a confidential nature made by the Company to its legal advisors or to the Company by its legal advisors; cases for the opinion of Counsel; instructions to Counsel; opinions or advices from Counsel; letters or copies of letters passing between the Company's legal advisors and certain potential witnesses; letters and copies of letters between the Company's legal advisors and their agents; drafts and memoranda made by the Company's legal advisors for the purposes of this action, and reports obtained from expert professional witnesses solely forthe purpose of this action." Miss Gallagher, the defendant's solicitor, has sworn in a recent affidavit that: "(i) At Sheet 10 Item A in the ScheduJ..e is the heading 'McLaughlin Gordon & Lennon - Correspondence File', I say:- Items (a) to (r) were documents created by the parties solely for the purpose of proposed litigation and for the purpose of giving instructions to the party who was then the Solicitor for the Second Defendant to this action (Messrs McLaughlin Gordon & Lennon, Solicitors) or alternatively, correspondence from Messrs McLaughlin Gordon & Lennon to the Second Defendant for the purpose of imparting legal advice. The item listed as (s) therein was merely a cheque slip by Gordon Pacific directed to Messrs McLaughlin Gordon & Lennon in payment of their fees." Mr Kimmins, for the plaintiff, makes two broad submissions and I hope I will not be doing his very careful submissions injustice by so describing them, namely that the documents or many of them came into existence before demand was made by the plaintiff and, therefore, must have a basis other than that set out in para 3 of the affidavits to maintain a 3 10 20 30 40 50 60 -- 3 of 6 -- 300192 JUDGMENT successful cla~m for pr~v~lege; the other ~s that some of the document,.,... ~re d~rected to or from ent~ t~es assoc~ated w~ th the f~I. -t~', defendant but wh~ch are not part~es to the act~on. W~th respect to the latter subm~ss~on, ~t ~s pla~n that the f~rst defendant rece~ved documents var~ously descr~bed or at least d~fferently descr~bed than ~n h~s ~nd~v~dual capac~ ty or as d~rector . of the second defendant. Noth~ng has persuaded me that as a matter of pr~nc~ple documents otherw~se pr~v~leged would lose their status because of th~s fact. It must be a matter of common exper~ence that one ~nd~v~dual ~s the guard~ng m~nd and pr~nc~pal of a number of related compan~es or groups of compan~es, all of wh~ch have some com1non ~nterest even though they are not part~es to the act~on. I probably stray away from the mater~al somewhat by the last observat~on because noth~ng was placed before me wh~ch would suggest that Garden Construct~ons Pty Ltd, for example, has a common ~nterest w~th the defendants actually sued ~n th~s act~on, but the mater~al that I have looked at sat~sf~es me that th~s ~s so. The same can be sa~d of documents wh~ch have been addressed to Mr M~chael Garden. For those reasons I reject that subm~ss~on. I had concerns about the dates of some of the documents wh~ch were set out ~n the aff~dav~ts. M~ss Gallagher's assert~on ~n para 7,·to wh~ch I have earl~er referred, d~d not address th~s concern, the onus be~ng upon the party 4 10 20 30 40 50 60 -- 4 of 6 -- 300192 JUDGMENT claiming privilege to establish it. I was not satisfied that. :U.ss Gallagher' s affidavit had gone as far as I would have ~; 1ought necessary. In such a circumstance, Grant v. Downes (1976) 135 CLR 674 makes clear what was already the practice, namely, that a Court may look at the documents in question and this I have done. A succinct statement of the meaning of legal professional privilege is to be found in the High Court decision of Attorney-General (Northern Territory) v Maurice (I986) 161 CLR 475 at 487, where Mason and Brennan JJs held: "Legal professional privilege is an ancient doctrine which has assumed a life of its own. Succinctly stated, the privilege protects from disclo~ure 'communications made confidentially between a client and his legal adviser for the purpose of obtaining or giving legal advice or assistance' : Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141 at p 144 per Gibbs J. The rais0n d' etre of legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client." Applying that principle to the documents in question, I rule that the claim for privilege is made out with respect to the following documents: A- (a) (b) (c) (d) (f) (g) (h) (i) (j) (k) (1) (m) and (n); with respect to B - (a) (b) (e) (f) (g) and (i); with respect to C- (c). It would be clear upon a perusal of the documents that are not held to be protected by privilege, that these are of the most profunctory kind and I will simply mention that because I would not wish Mr Kimmins to think that it would be necessary for him immediately to get copies o£ them. There 5 10 20 30 40 50 60 -- 5 of 6 -- 300192 JUDGMENT is authority to say that, for example, accounts of professional fees are not prote:..-~,..4 by privilege. The decisions apparently suggest it J +_ not privileged that a person engages a firm of solicitors. All the rest of the documents do in my opinion fall within the ambit of advice of a legal and confidential kind passing between solicitor and either client or client's agents. The order as to costs will be that the respndents/defendants pay the applicant/plaintiff's costs to be taxed in any event. 6 10 20 30 40 50 60 -- 6 of 6 --