Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925

Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925

Equuscorp Pty Ltd put its state of mind directly in issue by pleading reliance on representations for its s 52 claim and by pleading rectification of the security document, and there was evidence that it sought and obtained legal advice shortly before executing that document. In those circumstances, applying common law principles of imputed waiver and the reasoning in Telstra, it would be unfair to allow Equuscorp Pty Ltd to maintain legal professional privilege over the relevant documents. Leave to appeal was therefore granted, the appeal allowed, and the documents ordered to be made available for inspection and copying by Perpetual Trustees (WA) Ltd.

Jurisdiction
Australia
Judgment Date
07 September 1999
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Legal Professional Privilege Over Documents Produced on Subpoena / On Appeal From a Judge of the Federal Court of Australia
Outcome
Leave to appeal granted; appeal allowed; orders made on 21 May 1999 set aside; documents to be made available for inspection and copying; respondent to pay costs.
Legal Topics
['legal Professional Privilege' 'imputed Waiver' 'issue Waiver' 'subpoena to Former Solicitors' 'misleading or Deceptive Conduct' 'rectification']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'imputed Waiver' 'issue Waiver' 'subpoena to Former Solicitors' 'misleading or Deceptive Conduct' 'rectification']

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Legal Professional Privilege Over Documents Produced on Subpoena / On Appeal From a Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from orders upholding a claim of legal professional privilege.' "Whether legal professional privilege over documents produced on subpoena by Equuscorp Pty Ltd's former solicitors was lost by imputed waiver or consent." "Whether pleading reliance for a misleading or deceptive conduct claim put Equuscorp Pty Ltd's state of mind in issue so as to make it unfair to maintain privilege over relevant legal advice." "Whether the rectification claim put Equuscorp Pty Ltd's state of mind in issue so as to support imputed waiver."]

Ratio Decidendi

Equuscorp Pty Ltd put its state of mind directly in issue by pleading reliance on representations for its s 52 claim and by pleading rectification of the security document, and there was evidence that it sought and obtained legal advice shortly before executing that document. In those circumstances, applying common law principles of imputed waiver and the reasoning in Telstra, it would be unfair to allow Equuscorp Pty Ltd to maintain legal professional privilege over the relevant documents. Leave to appeal was therefore granted, the appeal allowed, and the documents ordered to be made available for inspection and copying by Perpetual Trustees (WA) Ltd.

Court Disposition

Leave to appeal granted; appeal allowed; orders made on 21 May 1999 set aside; documents to be made available for inspection and copying; respondent to pay costs.

Orders

  • ['The applicant have leave to appeal from the orders made on 21 May 1999.' 'The appeal be allowed and those orders be set aside.' 'The documents referred to in paragraphs 7, 8 and 9 of the affidavit of Mark Leaker sworn 27 April 1999, produced pursuant to the subpoena dated 20 January 1999, be made available for...