Guy Carpenter & Company Pty Ltd v Grove

REASONS FOR JUDGMENT 1 One outstanding issue in relation to the interlocutory application filed on 19 August 2011 is whether the first to fourth respondents (the Executives) should be required to file and serve a supplementary list of discovered documents which describes the substance of the communications contained in each document and so advances the basis of the Executives' claim for privilege. The application is made pursuant to Part 20 Rule 20.17(3)(b) of the Federal Court Rules 2011, which provides that a party may apply to the Court, before or after a list of documents has been served, for an order that a more detailed list of documents be provided. 2 The background against which the application is made is that both the Executives and the fifth respondent have filed and served verified lists which identify the basis upon which privilege is claimed and provide a description and the date of the document. However, in relation to the documents in respect of which the claim for privilege is based on the provision of legal advice, the Executives' lists, unlike that of the fifth respondent, do not identify the topic about which the advice is said to have been given. 3 In support of its application, the applicant relied on the principles relating to the obligations of parties seeking to establish a claim for legal professional privilege which is subject to challenge. These included the principles relating to privilege recorded at [8] of the decision in Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88. 4 I consider that there is a difference between the obligation of a party providing verified discovery in accordance with the Rules, and the evidentiary onus to which a party may be subject if a claim for legal professional privilege is challenged. In other words, I am satisfied that the Executives' verified lists comply with their obligation under Rule 20.17(2) of the Federal Court Rules 2011. Accordingly, the application is to be determined on the basis that the applicant seeks to be provided with a more detailed list of documents than would otherwise be required. The mere fact that the fifth respondent has chosen to provide the additional detail sought is not material to the resolution of this issue. 5 In short, I can see no basis upon which the applicant would be entitled to require the Executives to provide the more detailed list. Although I accept I have a discretion to make that order, I am not satisfied that any considerations weigh in favour of doing so. Furthermore, it seems evident that even with a limitation to the date of 11 April 2011 - which the applicant has indicated would be satisfactory - substantial costs would be incurred in the provision of such a list. Accordingly, para 3 of the applicant's interlocutory application must also be dismissed. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.