Parkin v Boral Limited (Loss of Privilege Issue) [2024] FCA 1039

FEDERAL COURT OF AUSTRALIA

Parkin v Boral Limited (Loss of Privilege Issue) [2024] FCA 1039 File numbers: NSD 602 of 2020 NSD 935 of 2020

Judgment of: LEE J

Date of judgment: 9 September 2024

Catchwords: EVIDENCE – voir dire – objections – where loss of client legal privilege – principled approach to s 126 of the Evidence Act 1995 (Cth) considered – whether second privileged communication reasonably necessary to enable a proper understanding of other communication over which privilege lost – where applicants propose to adduce evidence in cross examination concerning representations made – whether tender of the document ought be permitted – tender allowed – orders made permitting cross examination REPRESENTATIVE PROCEEDINGS – shareholder class action – where applicants acquired shares in Boral – where Boral USA entered into agreement to acquire Headwaters Incorporated – where applicants claim that Boral made representations concerning the integration of Headwaters into Boral USA – where representations said to amount to misleading and deceptive conduct and breach of continuous disclosure obligations – where applicant contends alleged breaches caused or materially contributed to price of Boral shares – where applicants seek damages and statutory compensation

Legislation: Corporations Act 2001 (Cth) ss 9, 677 Evidence Act 1995 (Cth) ss 55, 56, 117, 118, 119, 120, 121, 122, 122(2), 122(3)(a), 123, 124, 125, 126, 135, 135(c), 137, 189, 192, 192(2), 192(2)(d), 192(2)(e), 192A, Pt 3.10 – Div 1, Ch 3 Federal Court of Australia Act 1976 (Cth) s 37M, Pt VB Federal Court Rules 2011 (Cth) rr 20.14, 20.14(1)(a), 20.17 ASX Listing Rules, r 19.12