Gartner v Carter; In the matter of Gartner Wines Pty Limited [2004] FCA 258

Gartner v Carter; In the matter of Gartner Wines Pty Limited [2004] FCA 258

Privilege did not attach to the strategic plan because the respondents demonstrated, on a prima facie basis, that the document was created for the improper purpose of defeating NAB's claim as a secured creditor by placing assets beyond its reach, which is a fraud on justice and not protected by legal professional privilege.

Parties
Applicant: Michael John Gartner; First Respondent: Bruce James Carter; Second Respondent: John Ronald Hart
Jurisdiction
Australia
Judgment Date
17 March 2004
Procedural Posture
Interlocutory Application / Application for Declaration as to Legal Professional Privilege
Outcome
Application dismissed
Legal Topics
Legal Professional Privilege, Fraud Exception to Privilege, Corporate Restructuring, Discovery in Corporate Insolvency
Practice and Procedure Evidence Corporations Law Legal Professional Privilege Fraud Exception to Privilege Corporate Restructuring Discovery in Corporate Insolvency

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Parties

Michael John Gartner

Applicant

Bruce James Carter

First Respondent

John Ronald Hart

Second Respondent

Procedural Posture

Interlocutory Application / Application for Declaration as to Legal Professional Privilege

Legal Issues

  1. 1 Whether the 'strategic plan' document is protected by legal professional privilege
  2. 2 Whether the document was created for an improper or fraudulent purpose so as to defeat privilege

Ratio Decidendi

Privilege did not attach to the strategic plan because the respondents demonstrated, on a prima facie basis, that the document was created for the improper purpose of defeating NAB's claim as a secured creditor by placing assets beyond its reach, which is a fraud on justice and not protected by legal professional privilege.

Court Disposition

Application dismissed

Orders

  • The application be dismissed.
  • The relief sought in paragraphs 1, 3, 4, 5 and 6 of the amended interlocutory process be refused.