Gate Gourmet Australia Pty Limited (in liquidation) v Gate Gourmet Holding AG & Ors

Gate Gourmet Australia Pty Limited (in liquidation) v Gate Gourmet Holding AG & Ors - [2004] NSWSC 768 - NSWSC 2004 case summary — Zoe

[21]

(d) Tab 5: an updated version of the summary of receipts and payments of the liquidator for which is tab 15 to the Third Sherman statement, to 31 July 2004. 9 The underlying material in respect of all of the summaries has been discovered in the proceedings. The defendants' objections to the making of the section 50 Order The third objection 10 It convenient to commence with the third of the defendants' objections as it is shortly disposed of. The objection is that the terms of section 50 (2)(a) requires that the party seeking to adduce the summary form evidence must serve on the other party a document being both the summary as well as the disclosure of the name and address of the person who prepared the summary and that this has not occurred presently. Whilst this objection may represent the proper construction of the subsection if it is shown that there was served at the same time as the summary, a disclosure of the name and address of the person who prepared the summary, it would clearly be appropriate to order that that segment of the subsection not apply pursuant to the power granted by the Evidence Act section 190 (3) (a) and/or (b). Provided that the parties accept that what occurred presently satisfied the above described criterion, such an order will be made. The second objection 11 The next objection is that what has been summarised in the documents annexed to the statements of Mr Sherman: · is not in fact the documents contained in the voluminous folders of materials [which occupied a number of shelves in the courtroom]; · comprises no more than summaries of the assessment of Mr Grimshaw [a Senior Manager at Ferrier Hodgson responsible under the supervision of the partners for the day-to-day conduct of the liquidation of the plaintiff company]. 12 Mr Grimshaw has carefully explained the work which he carried out in support of the application that particular spreadsheets and summaries be adduced at the hearing as a summary of the approximately 42 volumes of documents which comprise the proofs of debt and other related documents in relation to the plaintiff's former employees and its general unsecured non-priority creditors. 13 He deposed as follows:

[50]

"Folder entitled [the description will be given as for example being 'Unsecured Creditor Proofs of Debt'] containing formal proofs of debt and related material for the following unsecured creditors"-details of which I then provided." [emphasis added] 18 The second is that the proofs of debt documents are nonetheless proofs of debt documents if they happen to include supporting documentation as part thereof. 19 The third is that there is a misconception in the proposition that a party adducing evidence of the contents of two or more documents in the form of the summary must include in the summary every detail or fact or feature of the documents purported to be summarised. Clearly enough the section is intended to achieve the purpose of permitting summary evidence in the event that the Court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume and complexity of the documents in question, as long as the other party had been served with a copy of the summary and given a reasonable opportunity to examine or copy the documents. 20 It has to be said that defendants exposed their anxiety in the course of the submissions advanced, the proposition being that the defendants as third parties are said not to be bound by the fact that the liquidator may have allowed a proof of debt in a particular sum as proving that such an indebtedness had been incurred. 21 Ultimately the section 50 mode of proof of the fact that the liquidator allowed particular proofs of debt and did so on the basis of particular materials too voluminous to permit of independent tender, may or may not carry the plaintiff the distance it may contend for. 22 The determination of issues such as this will require to await the hearing when the precise materials adopted by the plaintiff in endeavouring to prove its case comes forward. 23 In my view subject to the S190(3) order being appropriate qua objection 3, Order 3 in the plaintiffs notice of motion filed on 11 August 2004 should be made. Short minutes of order should be brought in accordingly. Claims for Privilege over Material Produced by Mr Carter

[55]

"[21] I will apply the following principles which I did not understand to be in dispute: (1) Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J. (2) Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 (Propend); Interchase, per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4) (2002) 50 ATR 70 at [17]. (3) Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161 - 2 per Thomas J. (4) Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481; 69 ALR 31 at 34 per Gibbs CJ, CLR 487-8; ALR 38-9 per Mason and Brennan JJ, CLR 492-3; ALR 42-3 per Deane J, CLR 497-8; ALR 46-7 per Dawson J; Goldberg v Ng (1995) 185 CLR 83 at 98; 132 ALR 57 at 66 per Deane, Dawson and Gaudron JJ, CLR 109; ALR 75 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; BC9506842; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC 200300344 (ACCC v Lux) at [46].

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