Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 1241

Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 1241

The evidence relied upon to substantiate the claim of s 229 privilege did not rise above mere assertion and did not discharge the onus of proof required to withhold the documents; therefore, the applicants are entitled to inspect and copy the unredacted documents, except those subject to uncontested client legal privilege.

Parties
First Applicant: Titan Enterprises (Qld) Pty Ltd; Second Applicant: Rigel Constructions Pty Ltd; Third Applicant: Rigel Erectors Pty Ltd; First Respondent: Dale Cross; Second Respondent: Adam Clifford Harmon; Subpoenaed Party: Davies Collison Cave (proper officer)
Jurisdiction
Australia
Judgment Date
19 October 2016
Procedural Posture
Interlocutory Application Related to Subpoena Compliance and Privilege / Ruling on Claim of Privilege Over Documents Produced Under Subpoena Prior to Trial
Outcome
The applicants are granted leave to inspect and copy the subpoenaed documents, with certain categories excepted; costs reserved.
Legal Topics
Subpoenas, Legal Professional Privilege, Trade Marks Attorney Privilege, Onus of Proof
Practice and Procedure Intellectual Property Subpoenas Legal Professional Privilege Trade Marks Attorney Privilege Onus of Proof

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Parties

Titan Enterprises (Qld) Pty Ltd

First Applicant

Rigel Constructions Pty Ltd

Second Applicant

Rigel Erectors Pty Ltd

Third Applicant

Dale Cross

First Respondent

Adam Clifford Harmon

Second Respondent

Davies Collison Cave (proper officer)

Subpoenaed Party

Procedural Posture

Interlocutory Application Related to Subpoena Compliance and Privilege / Ruling on Claim of Privilege Over Documents Produced Under Subpoena Prior to Trial

Legal Issues

  1. 1 Whether the documents produced under subpoena by a trade marks attorney are subject to privilege under s 229 of the Trade Marks Act 1995 (Cth)
  2. 2 Whether privilege attaching to trade marks attorneys can be assimilated to client legal privilege
  3. 3 Which party bears the onus of proof for privilege and whether it was discharged in this case

Ratio Decidendi

The evidence relied upon to substantiate the claim of s 229 privilege did not rise above mere assertion and did not discharge the onus of proof required to withhold the documents; therefore, the applicants are entitled to inspect and copy the unredacted documents, except those subject to uncontested client legal privilege.

Court Disposition

The applicants are granted leave to inspect and copy the subpoenaed documents, with certain categories excepted; costs reserved.

Orders

  • The applicants are granted leave to uplift for inspection and copying the documents produced by the proper officer of Davies Collison Cave pursuant to the subpoena, save for specified envelopes as marked in the order.
  • Costs be reserved.