Carna Group Pty Ltd v The Griffin Coal Mining Company (No 2) [2019] FCA 2209

Carna Group Pty Ltd v The Griffin Coal Mining Company (No 2) [2019] FCA 2209

Carna established on the balance of probabilities that the Nardizzi documents were confidential communications between Carna and Mr Nardizzi, an Australian lawyer, for the dominant purpose of obtaining legal advice about the proposed Mining Services Contract. The documents relied upon on oath, including the fee for services email and the 12 January 2014 email referring to Mr Nardizzi as Carna's lawyer, sufficiently proved the claim notwithstanding the absence of a formal retainer or direct evidence from former officers or lawyers, particularly given Carna was in liquidation and those persons were outside the liquidator's camp. Producing the fee for services email only to substantiate the...

Jurisdiction
Australia
Judgment Date
18 December 2019
Procedural Posture
Commercial and Corporations Proceeding Concerning Inspection of Discovery and Claim for Legal Professional Privilege / Interlocutory Applications at Case Management Hearing
Outcome
Griffin's application for inspection was dismissed; other interlocutory applications were adjourned with costs reserved.
Legal Topics
['inspection of Discovery' 'legal Professional Privilege' 'client Legal Privilege' 'hearsay Evidence in Interlocutory Proceedings' 'waiver of Privilege' 'onus of Proof for Privilege Claims']
['practice and Procedure' 'evidence' 'commercial and Corporations'] ['inspection of Discovery' 'legal Professional Privilege' 'client Legal Privilege' 'hearsay Evidence in Interlocutory Proceedings' 'waiver of Privilege' 'onus of Proof for Privilege Claims']

Case Brief

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Procedural Posture

Commercial and Corporations Proceeding Concerning Inspection of Discovery and Claim for Legal Professional Privilege / Interlocutory Applications at Case Management Hearing

Legal Issues

  1. 1 ['Whether Carna discharged the onus of establishing legal professional privilege over documents involving communications with Mr Renato Nardizzi.' 'Whether admissible hearsay and company records produced by a liquidator could be relied upon to prove the facts supporting a claim for privilege.' "Whether the absence of affidavit evidence from company officers, the solicitor giving advice, or Carna's usual former solicitors justified rejecting the privilege claim or drawing a Jones v Dunkel inference." 'Whether producing an email to evidence the basis for the privilege claim waived privilege over the Nardizzi documents.']

Ratio Decidendi

Carna established on the balance of probabilities that the Nardizzi documents were confidential communications between Carna and Mr Nardizzi, an Australian lawyer, for the dominant purpose of obtaining legal advice about the proposed Mining Services Contract. The documents relied upon on oath, including the fee for services email and the 12 January 2014 email referring to Mr Nardizzi as Carna's lawyer, sufficiently proved the claim notwithstanding the absence of a formal retainer or direct evidence from former officers or lawyers, particularly given Carna was in liquidation and those persons were outside the liquidator's camp. Producing the fee for services email only to substantiate the...

Court Disposition

Griffin's application for inspection was dismissed; other interlocutory applications were adjourned with costs reserved.

Orders

  • ["The third respondent's interlocutory application, filed 28 November 2019, be adjourned with costs reserved." "The second respondent's interlocutory application, filed 12 December 2019, be adjourned with costs reserved." "Order 2 sought by the first respondent's interlocutory application, filed 29 November 2019, be...