Hammond v Quayeyeware Pty Ltd [2021] FCA 293

Hammond v Quayeyeware Pty Ltd [2021] FCA 293

Where a director and company have become adversaries, a company may properly assert legal professional privilege against the director in relation to legal advice and communications obtained for the dominant purpose of that litigation or dispute, and neither statute nor general law abrogates this privilege. General or facilitative orders for access to company documents will not be made in the absence of real, ongoing controversy or evidence of a pattern of denial, and where rights of access are now acknowledged and being met subject to the resolution of privilege claims.

Parties
Plaintiff: Linda Hammond; Defendant: Quayeyeware Pty Ltd (ACN 118 078 274)
Jurisdiction
Australia
Judgment Date
30 March 2021
Procedural Posture
Corporations Directors' Access to Documents / Final Judgment After Hearing
Outcome
Application dismissed except as to limited liberty to apply and further conferral on privilege regime.
Legal Topics
Directors' Right of Access, Legal Professional Privilege, Inspection of Company Records, Declaratory Relief
Corporations Law Commercial Law Directors' Right of Access Legal Professional Privilege Inspection of Company Records Declaratory Relief

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Parties

Linda Hammond

Plaintiff

Quayeyeware Pty Ltd (ACN 118 078 274)

Defendant

Procedural Posture

Corporations Directors' Access to Documents / Final Judgment After Hearing

Legal Issues

  1. 1 Extent of director's statutory and general law right of access to company's books, records, and financial information
  2. 2 Whether director's right of access overrides company's legal professional privilege in respect of documents relating to litigation where director and company were adversarial parties
  3. 3 Availability and utility of general declaratory or other relief for ongoing access to company documents

Ratio Decidendi

Where a director and company have become adversaries, a company may properly assert legal professional privilege against the director in relation to legal advice and communications obtained for the dominant purpose of that litigation or dispute, and neither statute nor general law abrogates this privilege. General or facilitative orders for access to company documents will not be made in the absence of real, ongoing controversy or evidence of a pattern of denial, and where rights of access are now acknowledged and being met subject to the resolution of privilege claims.

Court Disposition

Application dismissed except as to limited liberty to apply and further conferral on privilege regime.

Orders

  • Liberty to apply with respect to the manner of access by the plaintiff to: (a) category 14 as set out in the letter of Gadens to HWL Ebsworth dated 6 May 2020; and (b) the defendant's non-privileged communications by way of invoices, retainer agreements and receipts relating to the defendant's engagement of lawyers...
  • Parties to confer as to proposed terms of a regime for identifying privilege claims, and to provide minutes of orders (by consent or competing) to the Court within 21 days or such further agreed time.