(Re Mowbray) Brambles Australia Ltd v British American Tobacco Australia Services Ltd [2006] NSWDDT 15

(Re Mowbray) Brambles Australia Ltd v British American Tobacco Australia Services Ltd [2006] NSWDDT 15

The evidence adduced on the interlocutory application, including evidence from Mr Gulson, Mr Welch and Dr Wigand, sufficiently demonstrated prima facie that Brambles could make good its pleaded allegations concerning BATAS' document destruction, warehousing and privileging practices. In the circumstances, BATAS' generic list of privileged documents was not sufficiently particular to comply with Pt 23 r3(6), or alternatively the circumstances justified further procedural orders under Pt 2 r1 of the Uniform Civil Procedure Rules 2005. Communications made for the purpose of obtaining legal advice on the 1985 Document Retention Policy were, on the present evidence, communications in...

Jurisdiction
Australia
Judgment Date
30 May 2006
Procedural Posture
Cross Claim for Contribution And/or Compensation in Dust Diseases Tribunal Proceedings; Interlocutory Motion for Further Discovery / Ruling on Motion for Further Discovery
Outcome
Motion for further discovery granted in substantial part; BATAS ordered to file and serve supplementary lists of documents, make requests to BAT Group companies and the Tobacco Institute of Australia, and provide affidavits. Costs reserved for further hearing.
Legal Topics
['further Discovery' 'privileged Documents' 'document Retention and Destruction' 'client Legal Privilege' 'hearsay in Interlocutory Proceedings' 'section 125 Misconduct Exception' 'contribution Claim']
['civil Procedure' 'evidence' 'dust Diseases Litigation' 'torts' 'trade Practices'] ['further Discovery' 'privileged Documents' 'document Retention and Destruction' 'client Legal Privilege' 'hearsay in Interlocutory Proceedings' 'section 125 Misconduct Exception' 'contribution Claim']

Case Brief

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Procedural Posture

Cross Claim for Contribution And/or Compensation in Dust Diseases Tribunal Proceedings; Interlocutory Motion for Further Discovery / Ruling on Motion for Further Discovery

Legal Issues

  1. 1 ["Whether BATAS should be ordered to provide further discovery of documents relevant to Brambles' cross-claim." "Whether BATAS' list of privileged documents complied with Part 23 r3(6) of the Supreme Court Rules given its generic descriptions." 'Whether evidence of document retention, destruction, warehousing and privileging practices justified further discovery orders.' 'Whether hearsay evidence from witnesses including Mr Gulson was admissible in an interlocutory proceeding under s75 of the Evidence Act 1995.' "Whether otherwise privileged passages of Mr Gulson's evidence could be admitted under s125 of the Evidence Act 1995 on the basis of communications in furtherance of fraud." 'What further discovery, requests to related companies, and affidavits should be ordered.']

Ratio Decidendi

The evidence adduced on the interlocutory application, including evidence from Mr Gulson, Mr Welch and Dr Wigand, sufficiently demonstrated prima facie that Brambles could make good its pleaded allegations concerning BATAS' document destruction, warehousing and privileging practices. In the circumstances, BATAS' generic list of privileged documents was not sufficiently particular to comply with Pt 23 r3(6), or alternatively the circumstances justified further procedural orders under Pt 2 r1 of the Uniform Civil Procedure Rules 2005. Communications made for the purpose of obtaining legal advice on the 1985 Document Retention Policy were, on the present evidence, communications in...

Court Disposition

Motion for further discovery granted in substantial part; BATAS ordered to file and serve supplementary lists of documents, make requests to BAT Group companies and the Tobacco Institute of Australia, and provide affidavits. Costs reserved for further hearing.

Orders

  • ['The Cross Defendant on or before 14 June 2006 file and serve a Supplementary List of Documents identifying by title, date and author any original or copy reports, papers, articles, research notes or other records of a scientific nature in respect of which a claim for privilege is made; describing by nature and...