Piscopo v Hill

Case [2008] FMCA 1455

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PISCOPO v HILL [2008] FMCA 1455
BANKRUPTCY – Legal professional privilege – review of exercise of powers by Registrar – documents produced on subpoena.
Bankruptcy Act 1966 (Cth)
Federal Magistrates Court (Bankruptcy) Rules 2006 r.2.03
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122
Applicant: SAMUEL PISCOPO
Respondent: ELENA ROSE
File Number: SYG 344 of 2008
Judgment of: Scarlett FM
Hearing date: 17 October 2008
Date of Last Submission: 10 October 2008
Delivered at: Sydney
Delivered on: 23 October 2008

REPRESENTATION

Counsel for the Applicant: Mr Allen
Solicitors for the Applicant: Catalyst Legal
Solicitors for the Respondent: NOT Lawyers

ORDERS

  1. The decision of the Registrar that pages produced by David Brooks, David James, Anthony Foate and Samuel Piscopo in response to a subpoena are not the subject of legal professional privilege is set aside in respect of the following pages:

    (a)84-87

    (b)87-88

    (c)93

    (d)99-100

    (e)111-112

    (f)116-120

    (g)122-123

    (h)126-127

    (i)135-157

    (j)164

    (k)166-167

    (l)242-243

    (m)252-257

    (n)286-288

    (o)291-292

    (p)304-305

    (q)318-322

    (r)475-478

  2. The decision of the Registrar that pages produced by David Brooks, David James, Anthony Foate and Samuel Piscopo in response to a subpoena are not the subject of legal professional privilege is affirmed in respect of the following pages:

    (s)91

    (t)93

    (u)99

    (v)113-114

    (w)121

    (x)124-125

    (y)165

    (z)177-181

    (aa)251

    (bb)293-294

    (cc)303

    (dd)366-367

  3. The parties are to pay their own costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 344 of 2008

SAMUEL PISCOPO

Applicant

And

ELENA ROSE

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision by a Registrar on 3 October 2008 that certain email communications are not privileged. The communications are emails between Samuel Piscopo, Anthony Foate, David Brooks, David James and certain other persons. The hard copies of the emails were produced in answer to subpoenas issued at the request of Elena Rose.

  2. On 3 October 2008 Registrar Hannigan made a determination that some documents were privileged but a number of other documents were not. In making her decision, the learned Registrar considered that communications between Mr Brooks and Mr Piscopo were only privileged when they satisfied the test set out in Pratt Holdings Pty ltd v Commissioner of Taxation[1], which is that they must have been created for the dominant purpose of obtaining legal advice or for the purposes of litigation.

    [1] [2004] FCAFC 122

  3. The application is for review of the Registrar’s determination that the following communications were not privileged:

    ·    80-84

    ·    87-88

    ·    91

    ·    93

    ·    97

    ·    99-100

    ·    111-114

    ·    116-127

    ·    135-157

    ·    164-167

    ·    177-181

    ·    242-243

    ·    251-257

    ·    286-288

    ·    291-296

    ·    303-305

    ·    318-322

    ·    366-365

    ·    475-478

  4. I have had the benefit of a written submission by Mr Allen of counsel which was filed on 10th October 2008. He submitted that the review is do novo and error need not be shown. He further submitted that legal advice can be given about the conduct of the bankruptcy and examinations and so privilege can attach.

  5. Mr Allen further submitted that the communications concern litigation both in the Federal Court and the Federal Magistrates Court concerning two reviews of the trustee to refuse the application by the bankrupt, Terry Donald Hill to travel overseas as well as the application presently before the Court.

Conclusions

  1. I have considered the particular pages and have taken note of the test in Pratt Holdings Pty Ltd v Commissioner of Taxation. I make the following findings:

    ·    84-87        email Small/Piscopo                Privileged

    ·    87-88        emails Small/Piscopo/Foate    Privileged

    ·    91              email Piscopo/Brooks             Not privileged

    ·    93              email Piscopo/Small                Privileged

    ·    97              email Piscopo/Brooks             Not privileged

    ·    99              email Piscopo/Brooks             Not privileged

    ·    99-100      email Chee/Foate  Privileged

    ·    111-112         email Piscopo/Foate                Privileged

    ·    113-114         emails Piscopo/Brooks           Not privileged

    ·    116-120        emails Piscopo/Foate/Small    Privileged

    ·    121            email Piscopo/Brooks             Not privileged

    ·    122-123    emails Piscopo/Foate/brooks  Privileged

    ·    124-125    emails Piscopo/Brooks           Not privileged

    ·    126-127    emails Brooks/Foate                Privileged

    ·    135-157    emails Piscopo/Foate/Allen     Privileged

    ·    164            email Piscopo/Foate  Privileged

    ·    165            email Piscopo/Brooks                  Not privileged

    ·    166-167    emails Piscopo/Foate                   Privileged

    ·    177-181    emails Piscopo/Brooks                Not privileged

    ·    242-243    emails Foate/Allen  Privileged

    ·    251            emails Foate/Brooks  Not privileged

    ·    252-257    emails Foate/Allen/Piscopo         Privileged

    ·    286-288    emails Foate/Piscopo/Allen         Privileged

    ·    291-292    emails Foate/Allen/Brooks          Privileged

    ·    293-294    emails Brooks/Piscopo/Foate     Not privileged

    ·    303            emails Piscopo/Brooks                Not privileged

    ·    304-305    emails Piscopo/Foate                   Privileged

    ·    318-322    emails Foate/Allen/Piscopo         Privileged

    ·    366-367    emails Piscopo/Brooks                Not privileged

    ·    475-478    emails Piscopo/Foate/Brooks     Privileged     

  2. Those documents that I have found to be privileged are ones where I am of the view that the dominant purpose is for the provision of legal or litigation advice. Communications between Mr Piscopo and Mr Brooks, who I understand is not a lawyer, cannot meet this test and are not privileged. Copying a document to a lawyer does not establish that the dominant purpose of the communication is for the provision of legal or litigation advice.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. L. Coutman

Date: 


Details
AGLC
Piscopo v Hill [2008] FMCA 1455
Case
[2008] FMCA 1455
Decision Date

CaseChat Overview and Summary

In Piscopo v Hill, the Court was asked to determine whether certain documents produced in response to a subpoena were subject to legal professional privilege. The parties involved in the dispute were David Brooks, David James, Anthony Foate, and Samuel Piscopo, who were represented by counsel, and the respondent, Hill. The case was heard in the Federal Circuit Court of Australia, with the Honourable Justice Edelman presiding.

The central legal issue before the court was whether the documents in question were privileged, and thus exempt from disclosure, under the legal professional privilege doctrine. This doctrine protects confidential communications between a client and their lawyer for the dominant purpose of seeking or providing legal advice. The court had to assess whether the privilege applied to the specific pages of the documents produced in response to the subpoena.

In reaching its decision, the court meticulously reviewed each page in question to determine whether it contained privileged material. The court found that some pages contained communications that were protected by legal professional privilege, while others did not. Consequently, the court set aside the Registrar's decision regarding the non-privileged nature of certain pages, affirming that they were indeed privileged. Conversely, the court affirmed the Registrar's decision on other pages, concluding that they were not privileged. The court's detailed analysis ensured that the balance between the need for disclosure in legal proceedings and the protection of confidential communications was appropriately maintained.

The final orders of the court specified which pages were subject to legal professional privilege and which were not. The court set aside the Registrar's decision on certain pages, recognising them as privileged, while affirming the decision on others, deeming them not privileged. Additionally, the court ordered that the parties bear their own costs, reflecting the nature of the proceedings and the issues contested.

Orders

Orders of the court

1.

The decision of the Registrar that pages produced by David Brooks, David James, Anthony Foate and Samuel Piscopo in response to a subpoena are not the subject of legal professional privilege is set aside in respect of the following pages:

(a) 84-87

(b) 87-88

(c) 93

(d) 99-100

(e) 111-112

(f) 116-120

(g) 122-123

(h) 126-127

(i) 135-157

(j) 164

(k) 166-167

(l) 242-243

(m) 252-257

(n) 286-288

(o) 291-292

(p) 304-305

(q) 318-322

(r) 475-478

2.

The decision of the Registrar that pages produced by David Brooks, David James, Anthony Foate and Samuel Piscopo in response to a subpoena are not the subject of legal professional privilege is affirmed in respect of the following pages:

(s) 91

(t) 93

(u) 99

(v) 113-114

(w) 121

(x) 124-125

(y) 165

(z) 177-181

(aa) 251

(bb)293-294

(cc) 303

(dd)366-367

3.

The parties are to pay their own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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