Gurtler v Finance Now Pty Limited

REASONS FOR JUDGMENT 1 Finance Now Pty Limited, the first respondent in the principal proceedings, has moved the Court for an order that I vary or set aside my judgment in Gurtler v Finance Now Pty Limited [2007] FCA 477. The judgment was given in respect of Mr Gurtler's claim for legal professional privilege over various communications between him or his litigation funder, Hillcrest Litigation Services Limited, and the solicitors then retained to conduct the present litigation. 2 One of the bases upon which the privilege was challenged was that Mr Gurtler had a deliberately improper purpose in seeking to join a proposed third respondent and that the communications which he and Hillcrest had with their solicitor regarding the proposed joinder (in particular an email dated 31 July 2006) which alleged fraud against Finance Now, its solicitors and, implicitly, the third party Malcolm Turnbull were in furtherance of that purpose. In paras 56-61 of my reasons for judgment I dismissed the challenge made on the basis of fraud/improper purpose. 3 After I published my reasons, the applicant communicated with my chambers to indicate that I had apparently made a factual error. In the email in question Mr Van Noort made the observation: "I believe/know/can prove that the accounts are a complete and total fabrication. Apart from recording the beginning (in a fabricated manner) and the end result of the transaction, the bit in between is nothing more than an after the event reconstruction of a series of events that in the main simply didn't happen. The bank statements will support my contention." In my reasons at [58] I referred to this paragraph as follows: "The email itself indicated that the accounts had been analysed and the conclusion arrived at from that analysis (i.e. the accounts were "cracked"). It also indicated that the stated conclusion were, in Mr Van Noort's view, supported by the bank statements." It is this last sentence which contains my alleged error. 4 That error alleged is that my sentence read in context suggests the present tense, i.e. that the statements had already been cited by Mr Van Noort, rather than the future tense, i.e. that it was Mr Van Noort's expectation that the statements would support his conclusion. Although senior counsel for Mr Gurtler suggested to the contrary at the original hearing, it is now agreed that Mr Van Noort had not seen the statements. Even if this was so, I do not regard my error, as having any operative bearing at all upon the conclusion I reached. I still consider that, in the circumstances, a sufficient basis had been given at that stage for Van Noort's assertion. He had indicated in short form the basis of his opinion, though without substantiation and the expected verification of it in the bank statements. Having regard to the fact that the matter was not yet the subject of a pleading (if ever it would be), I consider that enough had been stated to dispel any reasonable grounds for apprehending that the communication was made for an illegal or improper purpose. I would simply add that, in relation to the subject of the Van Noort opinion, Finance Now was the information monopolist. It knew or ought to have known of the falsity or otherwise of the opinion. 5 I should indicate that I have been invited to express a conclusory view as to whether there was any reasonable connection between the documents I inspected or any of them and the alleged purpose (assuming there to be a prima facie case of it) when considering such reasonable grounds as Finance Now may have had for asserting such connection. In the circumstances I do no more than reiterate that I have read the documents as I maintained in my original conclusion. 6 It is not in dispute that I have a power to vary or revoke an order which has not been entered. It is not at all part of my function to vary my reasons for judgment. In the circumstances I see no reason whatever to vary my order. 7 When this matter was first communicated to my chambers in April 2007 I directed that a reply be made to the applicant's solicitors which was in turn communicated to the respondents' indicating that I did not, for my part, consider that any further action should be taken in relation to my judgment. Nonetheless, Finance Now has moved as I have indicated. I will order that the motion be dismissed and that the first respondent pay the applicant's costs of the application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.