Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479

Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479

The privilege affidavits were manifestly insufficient because they did not identify the topics or categories of advice, but inspection showed that most documents were privileged except two emails, the unredacted 2 March 2010 retainer letter and the 23 December 2009 bill; s 125 did not defeat privilege because the applicants relied only on pleadings and did not show reasonable grounds for an abuse of power. Paragraph 2 of the subpoenas to Messrs Cochrane, Forrest and Ganesalingam did not pass the 'on the cards' test and was a fishing expedition absent material suggesting financial vulnerability. Further discovery was refused because O 15 r 2(3), rather than the Peruvian Guano test, applied...

Jurisdiction
Australia
Judgment Date
05 May 2011
Procedural Posture
Practice and Procedure Interlocutory Motions in Expedited Federal Court Proceedings Arising After Termination or Cessation of Employment and Establishment of a Competing Business / Determination of Four Notices of Motion Shortly Before Final Hearing: Privilege Over Subpoenaed Documents, Setting Aside Subpoena Paragraphs, Further Discovery, and Evidence by Video Link
Outcome
The applicants were granted access only to four specified subpoenaed documents; the privilege challenge otherwise failed. Paragraph 2 of three subpoenas was set aside. The applicants' motions for further discovery and video link evidence were dismissed with costs.
Legal Topics
['legal Advice Privilege' 'dominant Purpose Test' 'evidence Act 1995 (cth) S 125' 'abuse of Power Exception to Privilege' 'subpoena Relevance and Fishing Expedition' 'federal Court Rules O 15 R 2 and R 5' 'general Discovery' 'video Link Evidence']
['practice and Procedure' 'legal Professional Privilege' 'subpoenas' 'discovery' 'evidence by Video Link' 'employment and Post Employment Competition'] ['legal Advice Privilege' 'dominant Purpose Test' 'evidence Act 1995 (cth) S 125' 'abuse of Power Exception to Privilege' 'subpoena Relevance and Fishing Expedition' 'federal Court Rules O 15 R 2 and R 5' 'general Discovery' 'video Link Evidence']

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Procedural Posture

Practice and Procedure Interlocutory Motions in Expedited Federal Court Proceedings Arising After Termination or Cessation of Employment and Establishment of a Competing Business / Determination of Four Notices of Motion Shortly Before Final Hearing: Privilege Over Subpoenaed Documents, Setting Aside Subpoena Paragraphs, Further Discovery, and Evidence by Video Link

Legal Issues

  1. 1 ['Whether the applicants should be granted access to documents produced under subpoena to Fadi Khoury over which legal professional privilege was claimed.' 'Whether any privilege had been lost under Evidence Act 1995 (Cth) s 125(1)(b) because communications were made in furtherance of a deliberate abuse of power.' 'Whether paragraph 2 of subpoenas issued to Messrs Cochrane, Forrest and Ganesalingam should be set aside.' 'Whether the applicants should obtain further discovery in the categories sought in the notice of motion dated 4 May 2011.' 'Whether the evidence of Messrs Blake Grossman, Naozer Dadachanji and Robert Kapito should be taken by video link from the United States.']

Ratio Decidendi

The privilege affidavits were manifestly insufficient because they did not identify the topics or categories of advice, but inspection showed that most documents were privileged except two emails, the unredacted 2 March 2010 retainer letter and the 23 December 2009 bill; s 125 did not defeat privilege because the applicants relied only on pleadings and did not show reasonable grounds for an abuse of power. Paragraph 2 of the subpoenas to Messrs Cochrane, Forrest and Ganesalingam did not pass the 'on the cards' test and was a fishing expedition absent material suggesting financial vulnerability. Further discovery was refused because O 15 r 2(3), rather than the Peruvian Guano test, applied...

Court Disposition

The applicants were granted access only to four specified subpoenaed documents; the privilege challenge otherwise failed. Paragraph 2 of three subpoenas was set aside. The applicants' motions for further discovery and video link evidence were dismissed with costs.

Orders

  • ['The applicants be granted access to the email from Mr Morry Waked to Mr David Cross of Tuesday 24 November 2009 at 10.15am, the email from Mr David Cross to Mr Morry Waked of Tuesday 24 November 2009 at 10.31am, the letter of engagement to Mr Nick Burt dated 2 March 2010 and the account enclosed in a letter to Mr...