Oztech Pty Ltd v Public Trustee of Queensland (No 12) [2016] FCA 1128

FEDERAL COURT OF AUSTRALIA

Oztech Pty Ltd v Public Trustee of Queensland (No 12) [2016] FCA 1128 File number: NSD 937 of 2014

Judge: YATES J

Date of judgment: 15 September 2016

Catchwords: PRACTICE AND PROCEDURE – notice to produce –where notice seeks production of draft affidavit – where witness made reference to draft affidavit in cross-examination – legal professional privilege – relevance

Cases cited: Searle v Keayes (1994) 126 ALR 728; [1994] FCA 970

Date of hearing: 8 September 2016

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicant: Mr RPL Lancaster SC with Mr CH Withers, Mr AM Hochroth and Mr RJ May

Solicitor for the Applicant: Squire Patton Boggs

Counsel for the Respondent: Mr W Sofronoff QC with Mr DB O'Sullivan QC, Mr MJ O'Meara, Mr JP O'Regan, Ms E Hoiberg and Ms F Lubett

Solicitor for the Respondent: Clayton Utz

ORDERS NSD 937 of 2014

BETWEEN: OZTECH PTY LTD ACN 005 907 871 Applicant

AND: THE PUBLIC TRUSTEE OF QUEENSLAND Respondent

JUDGE: YATES J DATE OF ORDER: 15 SEPTEMBER 2016

THE COURT ORDERS THAT:

1. The notice to produce dated 6 September 2016 which was served by the applicant on the respondent be set aside. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

The issue 1 The applicant has served on the respondent a notice to produce dated 6 September 2016, which seeks production of: A copy of the draft affidavit of Mr Gregory Edward Klein prepared by Clayton Utz and provided to Mr Klein referred to at page 466, lines 6-8 of the transcript in these proceedings. 2 The respondent resists production on the ground that Mr Klein's draft affidavit is subject to legal professional privilege. The respondent also resists production on the ground of relevance. 3 The applicant's position is that any claim of privilege has been waived by evidence that has been given by Mr Klein in this proceeding and that whatever has been said in Mr Klein's draft affidavit is adjectively relevant.