Ferella v Official Trustee in Bankruptcy

REASONS FOR JUDGMENT 1 This matter comes before me today pursuant to directions. It has, and I make no criticism of counsel or solicitors before me, or of Ms Burrows who has taken over the matter recently, a slightly sorry history in terms of procedure. I made orders on 13 March 2014, which I will not set out, programming a privilege argument for today and giving the applicants a further opportunity to put on material in support of their application for an extension of time and their application for leave to appeal. That further time expired yesterday. 2 I remarked to Ms Burrows on 13 March that one aspect of an extension of time would not only be an explanation of the passage of time, but also the merits of the substantive appeal. The matter arises from the refusal of an adjournment by Jacobson J on 2 December 2013 (see Ferella v Official Trustee in Bankruptcy [2013] FCA 1319). The privilege argument concerns the reasons why Mr Julian Svehla of counsel and Ms McCue, solicitor, withdrew from acting for Mrs Ferella and the second applicant, Agusta Pty Ltd. Subpoenas were issued to Ms McCue and Mr Svehla. Ms McCue answered the call to the Court, not claiming any privilege, and access has been granted to her documents. 3 Mr Svehla claimed privilege on behalf of his former clients and they also claimed the privilege, and it is that privilege that came before me today. Were it not for any question of specific subject matter waiver, I would maintain the privilege of documents identified in an affidavit of Ms Burrows of 17 February 2014 and contained in an envelope with a yellow folder and a red sticker marked "privileged" on it. However, Mr Golledge, who appears for the respondent, referred me to page 15 of the transcript before Jacobson J on 2 December 2013 in which Mr Conti, who appeared for Mrs Ferella and her company, in examination-in-chief of Angelo Ferella (who purported to act on behalf of the applicants), asked these questions and received these answers: Would you tell me, please, why - or what was said to Mr Svehla as to why he withdrew from acting for the company and Agusta Proprietary Limited on this application? --- Yes. Mr Svehla has been our counsel for several years and these current proceedings for the last year and a bit I would say and Julian Svehla withdrew because our instalment arrangement in regards to fees was no longer palatable for counsel and, on that basis, counsel sought to withdraw. I hold no animosity towards Julian Svehla doing what he did. He's a well-respected man and a good man and I took his view on the chin and that's the rest - that's the single issue. And what did Ms McCue say to you as to why she withdrew? --- She withdrew because Julian was dealing with … with the family direct access which was obviously very attractive to Margaret McCue and that's why she then withdrew accordingly. 4 I have examined the documents in the privileged folder; they should now be examined on the basis that many of them may well fall within the clear waiver of privilege by Mrs Ferella and the company through the questions posed by their own solicitor to Mr Ferella and through his answers. 5 There may, however, be other matters in those documents which may have their privilege not so weakened. The most appropriate course, in my view, is to adjourn the privilege application to the judge hearing the application for an extension of time and granting leave to appeal should an extension of time be given. I say this because if I rule on the question there will be available an application for leave to appeal from me. I think it is better and more expeditious if the judge who deals with this can give the matter the attention it requires in the light of the final submissions put by the parties on the very applications to which the documents are related. The documents are not voluminous. They are conveniently organised by Mr Svehla in his response to the subpoena and it will not take either the hearing judge or counsel, if privilege is found to be waived, very long to deal with the matters raised by the documents. 6 I am told today by Mr Foster, who appears for Mrs Ferella and the company, instructed by Ms Burrows who is not here today, that the leave I gave in paragraph 4 of the orders of 13 March 2014 will not apparently be taken up. Therefore, the matter is presently ready to proceed subject to any further material the respondent wishes to file. There is no need, on reflection, to file the transcript of what happened in court before Jacobson J, but if the respondent thinks it convenient it might tender photocopies at the hearing. The matter should be heard expeditiously. There is no reason why the matter cannot be heard in April. 7 The matter will be fixed for hearing on Tuesday, 15 April at 10.15. It is noted that the only applications before the court are: 1. an application for an extension of time in which to file and serve an application for leave to appeal; and 2. the privilege application. 8 The application is for an extension of time and for leave to appeal filed on 27 December 2013. That is the matter which will be before a judge of the Court on Tuesday, 15 April 2014. There is no liberty to apply. If any party has any application to make about the appeal it needs to be made by notice of motion with an affidavit in support. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.