Gurtler v Finance Now Pty Limited (ACN 102 197 973) [2007] FCA 477

FEDERAL COURT OF AUSTRALIA

Gurtler v Finance Now Pty Limited (ACN 102 197 973) [2007] FCA 477 PRACTICE AND PROCEDURE – orders made for production of categories of documents subject to any claim of legal professional privilege – legal professional privilege claimed – litigation funding agreement – communications between litigation funder and legal adviser – privilege challenged on basis of litigation funder's actions PRACTICE AND PROCEDURE – issue waiver – reason for joining party – applicant not put in issue the contents of any communications made in the lawyer-client relationship – no inconsistency with the maintenance of the privilege PRACTICE AND PROCEDURE – disclosure waiver – disclosed fact of giving instruction to join a third party to proceedings – did not disclose the contents of the instructions– no inconsistency with maintenance of privilege PRACTICE AND PROCEDURE – litigation funder alleged to be pursuing its own interests – while applicant has used litigation funder as agent in the proceedings he still remained the client of the legal representatives for the purposes of conduct of the litigation – funding agreement gave rise to common and several interests – common interest privilege – no prima facie or reasonably arguable case of pursuit of litigation funder's own and paramount purposes PRACTICE AND PROCEDURE – fraud/improper purpose exception – allegation of fraud against the respondent – not shown to be lacking any foundation – communication not made for an improper purpose Corporations Act 2001 (Cth) s 183 Evidence Act 1995 (Cth)

Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58 distinguished Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203 cited Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 followed Commissioner of Taxation v Rio Tinto Ltd (2006) 229 ALR 304 followed DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 cited Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 cited Mann v Carnell (1999) 201 CLR 1 followed Southern Equities Corporation Ltd (in liq) v Arthur Anderson & Co (1997) 70 SASR 166 cited Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 cited Patrick v Capital Finance Corporation (Australasia) Pty Ltd (2004) 211 ALR 272 cited Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 cited GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 cited Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 cited Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 cited Attorney-General (NT) v Kearney (1985) 158 CLR 500 cited AWB Ltd v Cole (No 5) [2006] FCA 1234 cited Yunghanns v Elfic Pty Ltd (2000) 1 VR 92 cited