Verge v Devere Holdings Pty Ltd [2009] FCA 832

Verge v Devere Holdings Pty Ltd [2009] FCA 832

The privilege claimed over the documents cannot be maintained because (i) the subject matter and parties to the present litigation differ from those in the privileged negotiations, and (ii) the respondents, by raising the content and existence of the negotiations as part of their defence, have 'pleaded into relevance' the privileged communications, thus making their inspection necessary for a fair resolution of the case. Therefore, discovery and inspection should be ordered as sought by the applicants.

Jurisdiction
Australia
Judgment Date
05 August 2009
Procedural Posture
Motion for Discovery and Inspection of Documents / Interlocutory Application (prior to Trial), Reasons for Discovery Orders
Outcome
Application for inspection and discovery granted, subject to submissions for alternative consent minute within 10 days.
Legal Topics
['discovery' 'without Prejudice Privilege' 'voidable Transactions' 'evidence' 'good Faith Acquisition']
['civil Procedure' 'bankruptcy'] ['discovery' 'without Prejudice Privilege' 'voidable Transactions' 'evidence' 'good Faith Acquisition']

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Procedural Posture

Motion for Discovery and Inspection of Documents / Interlocutory Application (prior to Trial), Reasons for Discovery Orders

Legal Issues

  1. 1 ["Whether documents relating to settlement negotiations in a separate proceeding are protected by 'without prejudice' privilege; whether privilege has been waived or 'pleaded into relevance'; whether documents should be ordered to be discovered and inspected; whether the subject matter or parties to the negotiations and current proceeding are the same; whether the respondents are entitled to rely on privileged negotiations in their defence while withholding discovery."]

Ratio Decidendi

The privilege claimed over the documents cannot be maintained because (i) the subject matter and parties to the present litigation differ from those in the privileged negotiations, and (ii) the respondents, by raising the content and existence of the negotiations as part of their defence, have 'pleaded into relevance' the privileged communications, thus making their inspection necessary for a fair resolution of the case. Therefore, discovery and inspection should be ordered as sought by the applicants.

Court Disposition

Application for inspection and discovery granted, subject to submissions for alternative consent minute within 10 days.

Orders

  • ["Topfox must produce for inspection documents numbered 19 to 47 as described in the affidavit of discovery sworn by Giacomino Fazio on 18 September 2008 and filed in Federal Magistrate's Court proceedings PEG 64 of 2007." "Topfox and the first and second respondents must give discovery on oath of all documents...