In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2021] NSWSC 580

In the matter of Fogo Brazilia Holdings Pty Ltd (in liq) [2021] NSWSC 580

Category 9 had a legitimate forensic purpose because communications between the Liquidator or his solicitors and Levitt Robinson about proposed questions and topics for the public examinations could throw light on the plaintiffs' allegations that the Liquidator used examination powers for the benefit of Franchisee Claimants and to the detriment of the Company, and on allegations of actual or apprehended bias. Although the documents were not referred to in the pleadings or affidavit, the category as confined to documents for which privilege had been waived required production of specific documents within UCPR r 21.10(1)(b). Client legal privilege had been waived only for documents passing...

Jurisdiction
Australia
Judgment Date
24 May 2021
Procedural Posture
Equity Corporations List; Procedural Ruling on Application to Set Aside One Category of Documents in Notice to Produce / On the Papers – Written Submissions Received 18 and 19 May 2021
Outcome
One paragraph of the notice to produce was set aside in part.
Legal Topics
['notice to Produce' 'legitimate Forensic Purpose' 'client Legal Privilege' 'waiver of Privilege' 'public Examinations' 'liquidator Duties']
['corporations' 'civil Procedure' 'evidence'] ['notice to Produce' 'legitimate Forensic Purpose' 'client Legal Privilege' 'waiver of Privilege' 'public Examinations' 'liquidator Duties']

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Procedural Posture

Equity Corporations List; Procedural Ruling on Application to Set Aside One Category of Documents in Notice to Produce / On the Papers – Written Submissions Received 18 and 19 May 2021

Legal Issues

  1. 1 ["Whether category 9 of the plaintiffs' notice to produce was permitted by UCPR r 21.10 because it sought documents referred to in a pleading or affidavit, or other specific documents clearly identified and relevant to a fact in issue." 'Whether category 9 had a legitimate forensic purpose or was a fishing expedition.' 'Whether documents within category 9 were subject to client legal privilege and, if so, whether privilege had been waived by disclosure of the substance of advice or by conduct inconsistent with maintaining confidentiality.']

Ratio Decidendi

Category 9 had a legitimate forensic purpose because communications between the Liquidator or his solicitors and Levitt Robinson about proposed questions and topics for the public examinations could throw light on the plaintiffs' allegations that the Liquidator used examination powers for the benefit of Franchisee Claimants and to the detriment of the Company, and on allegations of actual or apprehended bias. Although the documents were not referred to in the pleadings or affidavit, the category as confined to documents for which privilege had been waived required production of specific documents within UCPR r 21.10(1)(b). Client legal privilege had been waived only for documents passing...

Court Disposition

One paragraph of the notice to produce was set aside in part.

Orders

  • ['Order that category 9 of the notice to produce issued by the plaintiffs to the defendant on 13 May 2021 be set aside, except insofar as it requires production of any documents that passed between the defendant (or Piper Alderman in their capacity as solicitors for the defendant) and Levitt Robinson Solicitors...