Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited [2013] FCA 998

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited [2013] FCA 998

Legal professional privilege claims by the respondent sellers are upheld to the exclusion of the Company because the evidence and process established the communications were made for the dominant purpose of advising those sellers alone; the applicants' challenges to the process and categories of documents do not warrant rejecting the privilege claims as presented by the solicitors after detailed review.

Parties
First Applicant: Asahi Holdings (Australia) Pty Limited; Second Applicant: Independent Liquor (NZ) Limited; First Respondent: Pacific Equity Partners Pty Limited; Second Respondent: Unitas Capital Pte. Ltd.; Third Respondent: Eagle Coinvestment Pty Limited (as Trustee for Pacific Equity Partners Fund III Co-Investment Trust); Fourth Respondent: Jomark International IV B.V.; Fifth Respondent: Pacific Equity Partners Fund III (Australasia) Pty Limited (as Trustee for the Pacific Equity Partners Fund III (Australasia) Unit Trust); Sixth Respondent: Pacific Equity Partners Fund III (Australasia) Pty Limited (as Trustee for the Pacific Equity Partners Supplementary Fund III (Australasia) Unit Trust); Seventh Respondent: Pacific Equity Partners Fund III GP (Jersey) Limited as General Partner of Pacific Equity Partners Fund III LP; Eighth Respondent: Pacific Equity Partners Fund III GP (Jersey) Limited as General Partner of Pacific Equity Partners Supplementary Fund III LP; Ninth Respondent: PEP Investment Pty Limited; Tenth Respondent: Rickard Jan Rolf Gardell; Eleventh Respondent: Antony John Duthie; Twelfth Respondent: Simon David Pillar; Thirteenth Respondent: Geoffrey John Hutchinson; Fourteenth Respondent: Eugene Won Suh; Fifteenth Respondent: Julian Alexander Buckley; Sixteenth Respondent: Phillip Michael Bower; Seventeenth Respondent: PEP Advisory III Pty Ltd; Eighteenth Respondent: Unitas Capital Pty Ltd
Jurisdiction
Australia
Judgment Date
03 October 2013
Procedural Posture
Application (disputed Subpoena/privilege Claim) / Interlocutory (privilege Dispute Before Trial)
Outcome
Privilege claims upheld; costs ordered against applicants
Legal Topics
Legal Professional Privilege, Joint/exclusive Privilege, Document Inspection, Subpoenas
Practice and Procedure Evidence Legal Professional Privilege Joint/exclusive Privilege Document Inspection Subpoenas

Case Brief

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Parties

Asahi Holdings (Australia) Pty Limited

First Applicant

Independent Liquor (NZ) Limited

Second Applicant

Pacific Equity Partners Pty Limited

First Respondent

Unitas Capital Pte. Ltd.

Second Respondent

Eagle Coinvestment Pty Limited (as Trustee for Pacific Equity Partners Fund III Co-Investment Trust)

Third Respondent

Jomark International IV B.V.

Fourth Respondent

Pacific Equity Partners Fund III (Australasia) Pty Limited (as Trustee for the Pacific Equity Partners Fund III (Australasia) Unit Trust)

Fifth Respondent

Pacific Equity Partners Fund III (Australasia) Pty Limited (as Trustee for the Pacific Equity Partners Supplementary Fund III (Australasia) Unit Trust)

Sixth Respondent

Pacific Equity Partners Fund III GP (Jersey) Limited as General Partner of Pacific Equity Partners Fund III LP

Seventh Respondent

Pacific Equity Partners Fund III GP (Jersey) Limited as General Partner of Pacific Equity Partners Supplementary Fund III LP

Eighth Respondent

PEP Investment Pty Limited

Ninth Respondent

Rickard Jan Rolf Gardell

Tenth Respondent

Antony John Duthie

Eleventh Respondent

Simon David Pillar

Twelfth Respondent

Geoffrey John Hutchinson

Thirteenth Respondent

Eugene Won Suh

Fourteenth Respondent

Julian Alexander Buckley

Fifteenth Respondent

Phillip Michael Bower

Sixteenth Respondent

PEP Advisory III Pty Ltd

Seventeenth Respondent

Unitas Capital Pty Ltd

Eighteenth Respondent

Procedural Posture

Application (disputed Subpoena/privilege Claim) / Interlocutory (privilege Dispute Before Trial)

Legal Issues

  1. 1 Whether respondent sellers are entitled to legal professional privilege over certain communications to the exclusion of the Company (applicant)
  2. 2 Whether the process and evidence supporting the privilege claim are sufficient

Ratio Decidendi

Legal professional privilege claims by the respondent sellers are upheld to the exclusion of the Company because the evidence and process established the communications were made for the dominant purpose of advising those sellers alone; the applicants' challenges to the process and categories of documents do not warrant rejecting the privilege claims as presented by the solicitors after detailed review.

Court Disposition

Privilege claims upheld; costs ordered against applicants

Orders

  • Claims of privilege over described documents by certain respondents are upheld, exclusive of the Company.
  • Documents described in the referenced schedule are not to be released or made available for inspection without written consent of specified respondents or court order.