Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2004] FCA 1249

FEDERAL COURT OF AUSTRALIA

Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2004] FCA 1249 PRACTICE AND PROCEDURE - Costs – Indemnity costs – Application for costs on indemnity basis – Allegation proceedings were unreasonably instituted and continued – Allegation proceedings unduly prolonged – Allegation of no basis for pleading fraud, accessory knowledge or knowing participation - Applicant successfully defended a no case submission in the principal proceeding – Evidence insufficient to establish that proceeding was commenced in an abuse of process for an ulterior purpose – Experienced counsel certified pleading – Proceeding not commenced or continued unreasonably or recklessly – Applications dismissed. EVIDENCE – Legal Professional Privilege – Common interest privilege – Joint interest privilege – Waiver - Disclosure of documents to adverse parties – Conflict of interest between parties claiming common interest privilege at the time of the disclosure – Subsequent common interest in resisting costs applications – Common interest privilege inapplicable where there is a conflict of interest – Common interest privilege does not operate retrospectively over material previously waived. Federal Court of Australia Act 1976 (Cth) Evidence Act 1995 (Cth) s 122 Patrick v Capital Finance Pty Ltd (No 2) [2002] FCA 1570 cited Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2004] FCA 120 cited Buttes Gas and Oil Co v Hammer (No. 3) [1981] 1 QB 223 discussed Farrow Mortgage Services Pty Ltd v Webb (1996) 39 NSWLR 601 discussed Lee v South West Thames Regional Health Authority [1985] 1 WLR 845 applied Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 discussed Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited (1998) 81 FCR 526 cited Gray v Associated Book Publishers (Aust) Pty Limited [2002] FCA 1045 cited White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 distinguished Levick v Commissioner of Taxation (2000) 102 FCR 155 discussed