Meteyard & Ors v Love & Ors [2005] NSWCA 444

Reported Decision : 56 ACSR 487 65 NSWLR 36

New South Wales Court of Appeal

CITATION: Meteyard & Ors v Love & Ors [2005] NSWCA 444

HEARING DATE(S): 6 June 2005, 7 June 2005

JUDGMENT DATE: 13 December 2005

JUDGMENT OF: Beazley JA at 1; Santow J at 2; Basten JA at 14

DECISION: (1) Grant leave to appeal in relation to the judgment and orders of the primary judge made on 31 March 2005; (2) Direct that the Claimants file a notice of appeal in accordance with Part 51, r 5(2); (3) Subject to the filing of the notice of appeal, order that; (a) so much of the judgment and orders of the primary judge as dismissed the challenge to the orders for production made by the Deputy Registrar on 18 January 2005 be set aside and in lieu thereof order that each of the orders for production be set aside; (b) set aside the order for costs made by the primary judge, and; (c) otherwise dismiss the appeal, with no order as to costs

CATCHWORDS: CORPORATIONS – application to set aside examination summonses made pursuant to s596B of the Corporations Act - whether summonses satisfied the jurisdictional requirements of s596B – whether claimants 'may be able to give information about the examinable affairs of the corporation' - meaning of 'examinable affairs' – whether s596B operates so as to exclude client legal privilege – client legal privilege under the Evidence Act 1995 (NSW) – whether significant number of communications the subject of the summonses and orders for production were likely to be privileged – whether summonses were oppressive or otherwise an abuse of process - PRIVILEGE – consideration of sections 117 and 118 the Evidence Act 1995 (NSW) – whether Evidence Act 1995 (NSW) or Evidence Act 1995 Act (Cth) applies – whether Corporations Act excludes operation of Evidence Act –whether client legal privilege provides an immunity from answering questions under s596B of the Corporations Act – whether an examination is a 'proceeding' for the purposes of the Evidence Act – whether the reports the subject of a possible claim for privilege obtained by solicitor acting on instructions of client – consideration of use of solicitors to obtain reports as a mere 'stratagem' or 'sham' – whether claimants agents of the client or agents of its solicitors – consideration of the definitions of 'agent', 'client' and 'lawyer' in s117 of the Evidence Act and under common law - PROCEDURE – order for production under Part 36 rule 12 of the Supreme Court Rules – whether privilege attaches to documents the subject of the order – consideration of Part 36 rule 13 - whether significant number of communications the subject of the orders for production were likely to be privileged – whether orders were oppressive or otherwise an abuse of process