FEDERAL COURT OF AUSTRALIA McHugh v Australian Jockey Club Limited (No 10) [2011] FCA 1200 Citation: McHugh v Australian Jockey Club Limited (No 10) [2011] FCA 1200 Parties: BRUCE MCHUGH v AUSTRALIAN JOCKEY CLUB LIMITED, VICTORIA RACING CLUB LIMITED, AUSTRALIAN RACING BOARD LIMITED, THOROUGHBRED BREEDERS AUSTRALIA LIMITED and AUSTRALIAN TURF CLUB LIMITED File number(s): NSD 1187 of 2009 Judge: ROBERTSON J Date of judgment: 13 October 2011 Cases cited: Mann v Carnell (1999) 201 CLR 1 applied Date of hearing: 13 October 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Applicant: Mr A Tonking SC with Mr J Lazarus and Ms P Arcus Solicitor for the Applicant: Brock Partners Counsel for the First, Second and Sixth Respondents: Mr AJ Bannon SC with Dr R Higgins Solicitor for the First, Second and Sixth Respondents: Johnson Winter & Slattery Counsel for the Third Respondent: Mr GES Ng Solicitor for the Third Respondent: Yeldham Price O'Brien Lusk Counsel for the Fifth Respondent: Mr J Emmett Solicitor for the Fifth Respondent: Esplins Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1187 of 2009 BETWEEN: BRUCE MCHUGH Applicant AND: AUSTRALIAN JOCKEY CLUB LIMITED First Respondent VICTORIA RACING CLUB LIMITED Second Respondent AUSTRALIAN RACING BOARD LIMITED Third Respondent THOROUGHBRED BREEDERS AUSTRALIA LIMITED Fifth Respondent AUSTRALIAN TURF CLUB LIMITED Sixth Respondent JUDGE: ROBERTSON J DATE OF ORDER: 13 OCTOBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The relief sought in paragraphs two and three of the interlocutory application dated 13 October 2011 be refused.. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1187 of 2009 BETWEEN: BRUCE MCHUGH Applicant AND: AUSTRALIAN JOCKEY CLUB LIMITED First Respondent VICTORIA RACING CLUB LIMITED Second Respondent AUSTRALIAN RACING BOARD LIMITED Third Respondent THOROUGHBRED BREEDERS AUSTRALIA LIMITED Fifth Respondent AUSTRALIAN TURF CLUB LIMITED Sixth Respondent JUDGE: ROBERTSON J DATE: 13 OCTOBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There was argued this afternoon an interlocutory application dated 13 October 2011 arising out of my grant of leave to the applicant to further cross-examine Mr Engelbrecht-Bresges in relation to the likely position of the Hong Kong Jockey Club ("HKJC") if breeding thoroughbred horses by artificial insemination were permitted in Australia, a matter which emerged in the course of that witness's oral evidence, and in respect of which two documents are sought to be tendered by the third respondent. Those two documents are MFI 50 and MFI 51. A notice to produce was served by the applicant following a call for certain documents, and then the interlocutory application filed by the third respondent ensued and was argued. 2 Paragraph two of the interlocutory application is that paragraph two of the notice to produce be set aside. The notice to produce, paragraph two, is: All documents recording or relating to any request made by or on behalf of the third respondent to the HKJC requesting assistance of the CEO of the HKJC to provide a statement for the purposes of these proceedings, including any response to such request and any correspondence or other communications arising from such request. 3 No point is taken about the width of the request in terms of oppression or matters of that kind. The questions that have been argued this afternoon are, broadly, whether the material the subject of paragraph two of the notice to produce is sufficiently relevant as to the circumstances in which MFI 50 and MFI 51 came to be produced and as to their contents and, second, the question of legal professional privilege. As to the latter question, the applicant accepts that the material was prima facie privileged, but submits that waiver of that privilege has taken place. 4 As to the first question, the relevance or legitimate forensic purpose of the material is denied in a global way: that is, the entirety of paragraph two of the notice to produce is sought to be set aside. 5 In my view, documents recording or relating to the request made by or on behalf of the third respondent to the HKJC requesting assistance is sufficiently relevant to the "likely position of the Hong Kong Jockey Club" in the posited circumstances. I do not accept that Mr Engelbrecht-Bresges' evidence at transcript 2179 could not or should not be tested by the applicant or that it is clear that the HKJC's likely position was informed only by what is in MFI 51, as submitted on behalf of the third respondent. 6 As to legal professional privilege, as I have indicated, it is conceded by the applicant that the documents for which privilege is claimed have prima facie privilege, but it is argued that the privilege has been waived. Reliance is placed on the modern restatement of the principle by the High Court in Mann v Carnell (1999) 201 CLR 1 at 29, which shows that the question of waiver is primarily one of any inconsistency between the third respondent tendering the HKJC's resolution or endorsement and denying access to the underlying request for assistance, that is, inconsistency between tendering the material and preserving the confidentiality of the request for assistance. 7 In my view the issue tendered by the third respondent is the HKJC's state of mind. In light of Mann v Carnell, the question of inconsistency is a matter of degree. On the present facts there is a close relationship or connection between the resolution and the request and the material is, on that basis, relevant to the state of mind of the HKJC so that there would be an inconsistency between tendering the HKJC's state of mind via MFI 50 and MF1 51 while seeking to maintain the confidentiality of the material which informed that state of mind. 8 Disclosure waiver was also argued but it is unnecessary to decide that in light of my ruling as to the broader basis of waiver. For completeness however I would indicate my view that paragraph two of MFI 51 does not constitute disclosure waiver, but paragraph six does in relation to the document which is, I infer, reproduced in paragraph six of MFI 51. As I said, that is not a point of present significance in light of my ruling as to the broader basis of waiver. 9 Paragraph three of the interlocutory application is as follows: As a condition of the leave granted to the Applicant to cross-examine Mr Engelbrecht-Bresges further, the Applicant not be permitted to put to the witness any suggestion of fraud or impropriety on the part of members of the Racing Committee of the Hong Kong Jockey Club in passing the resolution recorded in MFI 50. I would not impose that condition in advance of questions to be asked in cross-examination. 10 In the result, therefore, I refuse the relief sought in paragraphs two and three of today's interlocutory application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 21 October 2011