Orix Australia Corporation Limited v Crouch [2006] FCA 1610

FEDERAL COURT OF AUSTRALIA

Orix Australia Corporation Limited v Crouch [2006] FCA 1610 PRIVILEGE – legal professional privilege – dominant purpose of the relevant document or communication – whether an unfiled affidavit and subsequent drafts are covered by the privilege – whether documents enclosed with a privileged letter are covered by the privilege. Evidence Act 1995 (Cth) ss 119, 133 Baker v Campbell (1983) 153 CLR 52, referred to ORIX AUSTRALIA CORPORATION LIMITED v NICHOLAS JAMES DAVID CROUCH AND GWENETH AILEEN MCCORMICK NSD 1863 OF 2005

TAMBERLIN J

24 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1863 OF 2005

BETWEEN: ORIX AUSTRALIA CORPORATION LIMITED

Applicant

AND: NICHOLAS JAMES DAVID CROUCH

First Respondent

GWENETH AILEEN MCCORMICK

Second Respondent

JUDGE: TAMBERLIN J

DATE OF ORDER: 24 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. With the exception of Document 16, the documents be privileged from production. 2. Costs of this application in respect of privilege are to be costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1863 OF 2005

BETWEEN: ORIX AUSTRALIA CORPORATION LIMITED

Applicant

AND: NICHOLAS JAMES DAVID CROUCH

First Respondent

GWENETH AILEEN MCCORMICK

Second Respondent

JUDGE: TAMBERLIN J

DATE: 24 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The question for decision before me is whether certain documents on a Notice to Produce addressed to the first respondent are privileged from production. There are ten documents in respect of which the claim is made. These are described an Affidavit in Support of the privilege claim of Mr Crouch as follows: Description of Document Nature of Privilege Claimed 9 Affidavit of Raymond Alexander McCormick sworn 1 December 2005 prepared by Douros Lawyers regarding anticipated proceedings in which Crouch is a party against ORIX concerning a preference payment. Section 119 Evidence Act Adducing the document would result in disclosure of the contents of a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceedings in which the client is a party. 10 Draft affidavit of Raymond Alexander McCormick prepared by Douros Lawyers regarding anticipated proceedings in which Crouch is a party against ORIX concerning a preference payment. Section 119 Evidence Act Adducing the evidence would result in a disclosure of the contents of a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceedings in which the client is a party. 11 Draft affidavit of Raymond Alexander McCormick prepared by Douros Layers regarding anticipated proceedings in which Crouch is a party against ORIX concerning a preference payment. Section 119 Evidence Act Adducing the evidence would result in a disclosure of the contents of a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceedings in which the client is a party. 12 Draft affidavit of Raymond Alexander McCormick prepared by Douros Layers regarding anticipated proceedings in which Crouch is a party against ORIX concerning a preference payment. Section 119 Evidence Act Adducing the evidence would result in a disclosure of the contents of a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceedings in which the client is a party. 13 Draft affidavit of Gweneth Aileen McCormick prepared by Douros Layers regarding anticipated proceedings in which Crouch is a party against ORIX concerning a preference payment. Section 119 Evidence Act Adducing the evidence would result in a disclosure of the contents of a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceedings in which the client is a party. 14 Draft affidavit of Gweneth Aileen McCormick prepared by Douros Layers regarding anticipated proceedings in which Crouch is a party against ORIX concerning a preference payment. Section 119 Evidence Act Adducing the evidence would result in a disclosure of the contents of a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceedings in which the client is a party. 15 Draft affidavit of Darren McCormick prepared by Douros Layers regarding anticipated proceedings in which Crouch is a party against ORIX concerning a preference payment. Section 119 Evidence Act Adducing the evidence would result in a disclosure of the contents of a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipate proceedings in which the client is a party. 16 Email from David Rossi of Crouch Insolvency to Crouch dated 16 February 2006 concerning anticipated proceedings against ORIX. Section 119 Evidence Act Adducing the evidence would result in a disclosure of a confidential communication that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceedings in which the client is a party. 17 Letter from David Vorbach of Ebsworth & Ebsworth (solicitors for MKP) to Crouch dated 19 July 2005 concerning anticipated proceedings against ORIX regarding a preference payment. Section 119 Evidence Act Adducing the evidence would result in a disclosure of a confidential communication that was prepared for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceedings in which the client is a party. 19. Letter from Doug Vorbach of Ebsworth & Ebsworth (solicitors for MKP) to Crouch dated 9 May 2005 concerning anticipated proceedings against ORIX regarding a preference payment Section 119 Evidence Act Adducing the evidence would result in a disclosure of a confidential communication that was made for the dominant purpose of the client being provided with professional legal services relating to an anticipated proceedings in which the client is a party.