Mango Boulevard Pty Ltd v Whitton; In the matter of Spencer (Bankrupt) [2014] FCA 324

Mango Boulevard Pty Ltd v Whitton; In the matter of Spencer (Bankrupt) [2014] FCA 324

The Court was satisfied on the evidence that many of the challenged documents were protected by without prejudice privilege, legal professional privilege or confidential disclosure of privileged material in the course of without prejudice negotiations, and that privilege had not been waived. However, the Court considered it appropriate to inspect Documents 1202, 2050, 2053, 2054, 2057, 202, 203, 225 and 226 to determine the asserted objections to production. Further discovery was refused because there was no evidence warranting going behind the affidavits verifying Mango and BMD's lists of documents.

Jurisdiction
Australia
Judgment Date
02 April 2014
Procedural Posture
Interlocutory Application in Proceedings Concerning the Bankrupt Estates of Richard William Spencer and Silvana Perovich / Application by the Second and Third Respondents for Inspection of Discovered Documents Under R 20.35 of the Federal Court Rules 2011, Production of Non Privileged Documents, Further Discovery, Revised Electronic Trial Bundle and Security for Costs
Outcome
Orders made for production of specified documents to the Court for inspection; costs reserved; publication from Chambers ordered.
Legal Topics
['discovery' 'privilege From Production' 'without Prejudice Privilege' 'legal Professional Privilege' 'common Interest Privilege' 'further Discovery' 'security for Costs']
['practice and Procedure' 'bankruptcy' 'evidence'] ['discovery' 'privilege From Production' 'without Prejudice Privilege' 'legal Professional Privilege' 'common Interest Privilege' 'further Discovery' 'security for Costs']

Case Brief

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Procedural Posture

Interlocutory Application in Proceedings Concerning the Bankrupt Estates of Richard William Spencer and Silvana Perovich / Application by the Second and Third Respondents for Inspection of Discovered Documents Under R 20.35 of the Federal Court Rules 2011, Production of Non Privileged Documents, Further Discovery, Revised Electronic Trial Bundle and Security for Costs

Legal Issues

  1. 1 ['Whether documents discovered by Mango and BMD should be produced to the Court under r 20.35 of the Federal Court Rules 2011 for inspection to determine claims of privilege.' 'Whether without prejudice privilege attached to communications concerning settlement negotiations with former trustees, Mr Slatter and others, and whether any such privilege had been waived.' 'Whether legal professional privilege or common interest legal professional privilege protected particular documents from production.' 'Whether Mango and BMD should be ordered to give further discovery.' 'Whether costs of the interlocutory application should be reserved.']

Ratio Decidendi

The Court was satisfied on the evidence that many of the challenged documents were protected by without prejudice privilege, legal professional privilege or confidential disclosure of privileged material in the course of without prejudice negotiations, and that privilege had not been waived. However, the Court considered it appropriate to inspect Documents 1202, 2050, 2053, 2054, 2057, 202, 203, 225 and 226 to determine the asserted objections to production. Further discovery was refused because there was no evidence warranting going behind the affidavits verifying Mango and BMD's lists of documents.

Court Disposition

Orders made for production of specified documents to the Court for inspection; costs reserved; publication from Chambers ordered.

Orders

  • ['Documents 1202, 2050, 2053, 2054 and 2057 referred to in the List of Documents and Documents 202, 203, 225 and 226 referred to in the Supplementary List of Documents verified by the affidavits of Jodi Nicole Palmer sworn on 24 March 2012 and 10 April 2013 respectively be produced to the Court pursuant to rule...