In the matter of CGB Labour Hire Pty Ltd (in liq) [2023] NSWSC 17

Supreme Court New South Wales

Medium Neutral Citation: In the matter of CGB Labour Hire Pty Ltd (in liq) [2023] NSWSC 17 Hearing dates: 17 January 2023 Date of orders: 25 January 2023 Decision date: 03 February 2023 Jurisdiction: Equity - Duty List Before: Meek J Decision: Claim for privilege not made out - Plaintiff allowed to inspect forthwith the disputed documents Catchwords: EVIDENCE — Privilege — Legal professional privilege — Joint privilege — Common interest privilege — Plaintiff liquidator obtains examination orders to examine individuals associated with company placed into creditors' voluntary liquidation (being one of various companies within a group), and orders for production of documents — Company restructure and business and staff ultimately transferred to a new company — Respondents (director and operations manager of company) produce documents but claim legal advice privilege over some of the documents — Several retainers entered a year apart — Respondents assert lawyers retained by a director and former director as such and not on behalf of the company —Plaintiff challenges claim for privilege — Urgent hearing during vacation — Orders announced and reasons subsequently provided EVIDENCE — Privilege — Whether Evidence Act 1995 (NSW) or common law applies in addressing claim for privilege EVIDENCE — Privilege — Approach to determining who retained lawyers and for what purpose — Neither respondent provides evidence — Lawyer provides written retainers and asserts understanding of retainer — Notwithstanding assertions regarding non-company retainer the company pays legal fees — Court not satisfied that retainer was only a retainer to which the director and former director were parties and not satisfied the company was not a party to the retainer EVIDENCE — Privilege — Legal advice privilege — Court satisfied that as a matter of substance a material part of the first retainer involved advice regarding restructuring of the company EVIDENCE — Privilege — Legal advice privilege — Joint privilege — Common interest privilege — Court satisfied the company has a common interest privilege and shared interest with at least the respondents in relation to the disputed documents EVIDENCE — Privilege — Legal advice privilege —Unnecessary to decide what if any particular privilege attaches to the individual disputed documents — Obiter comments regarding individual documents in the event that finding of a common interest privilege incorrect WORDS AND PHRASES—"legal professional privilege"—"joint privilege"—"common interest privilege" Legislation Cited: Evidence Act 1995 (NSW) Supreme Court (Corporations) Rules 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ASIC v Rich [2004] NSWSC 1089 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 Balabel v Air India [1988] 1 Ch 317 Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408 Black v Smallwood (1966) 117 CLR 52 Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 Cygnett Pty Ltd (ACN 106 996 114) v Souris [2020] FCA 1754 Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49 DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151; [2003] FCA 1191 Eastmark Holdings Pty Limited v Kabraji (No 3) [2012] NSWSC 1463 Equititrust Ltd (in liq) (rec apptd) (recs and mgrs apptd) (in its capacity as responsible entity of the Equititrust Income Fund) v Equititrust Ltd (in liq) (recs apptd) (recs and mgrs apptd) (in its own capacity) (No 3) [2016] FCA 738; (2016) 341 ALR 31 Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 Farrow Mortgage Services Pty Ltd v Webb (1995) 13 ACLC 1329 Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 2) [2011] VSC 204 In the matter of Atlas Construction Group Pty Ltd (in liq) [2019] NSWSC 1656 In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 543 In the matter of Resource Group Services Pty Ltd (in liq) [2018] NSWSC 203 Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [1979] Ch 384 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; [2002] VSCA 59 Pegrum v Fatharly (1996) 14 WAR 92 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357; [2004] FCAFC 122 Re Connective Services Pty Ltd (No 2) [2018] VSC 128 Re Doran Constructions Pty Ltd (in liq) [2002] NSWSC 215; (2002) 194 ALR 101 Sharpe v Grobbel [2017] NSWSC 1065 Sheahan and Lock (liquidators); Re Binqld Finances Pty Ltd (in liq) [2015] FCA 718; (2015) 107 ACSR 163 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 Texts Cited: Ronald J Desiatnik, Legal Professional Privilege in Australia (3rd ed, 2017, LexisNexis Butterworths) Category: Principal judgment Parties: Anthony Elkerton in his capacity as liquidator of CGB Labour Hire Pty Ltd (in liq) (ACN 145 079 116) (Plaintiff / Applicant) Darryl Chadwick (First Defendant / First Respondent) Rachael Grimshaw (Second Defendant / Second Respondent) Tracy Boxsell (Third Respondent) Representation: Counsel: T Di Francesco (Plaintiff / Applicant) J Hyde Page (Defendants / Respondents)