• LAW OF EVIDENCE

In The Federal Court of Australia

New South Wales District Registry

Bruce Mchugh Vs. Australian Jockey Club Limited and Others. (Decided on 12.09.2011)

Access to Documents - Section 119 of the Evidence Act, 1995 - Australian Racing Board/Third Respondent has pleaded access to 10 emails between the Applicant and Mr. Pemberton - Applicant made a claim that the emails were subject of legal profession privilege - Whether at the time the when emails were sent there was litigation anticipated or commenced and were the emails sent for the purpose of being put before Applicant's solicitor with the object of obtaining his advice or of enabling him to prosecute the action

Held, the 10 emails are described in a summary way in a schedule to the notice of motion. In terms, four of those emails are described as being concerned with draft pleadings or applications. The earliest of those is 30th September 2009. Without examining the documents one can conclude that from that date litigation was anticipated. As it happens the litigation commenced on 21st October 2009. A fifth email described only as 'notes of meeting' post-dates 30th September 2009. The remaining five emails pre-date 30 September 2009 and are described in the schedule as referring to advices rather than pleadings. I have examined these documents. It is evident that they relate directly to the litigation which was commenced on 21st October 2009. It follows that all ten emails were created at times when litigation was anticipated. Further, the evidence from Applicant's solicitor establishes that Mr McHugh has on numerous occasions sought the assistance of Mr Pemberton on the formulation of his case and regards him as a trusted confidant and adviser with particular expertise in the operation of the thoroughbred racing and breeding industries. Mr Digby, of whom mention has already been made, is also expert in these matters and, in fact, is being called by Mr McHugh as an expert witness on his behalf. It is not difficult, in those circumstances, to imagine communications being made between Mr McHugh, on the one hand, and Messrs Pemberton and Digby, on the other, about the proposed litigation or that those communications might be directed to soliciting their advice to assist in Mr McHugh's solicitor's preparation of the case. Hence , concluded that the 10 emails are privileged. Hence, Board's motion dismissed

• CIVIL LAWS

In the federal court of Australia

Victoria District Registry

Connect TV Pty Ltd acn 119 901 932 and ors. Vs. All Rounder Investments pty Ltd acn 064 031 714 and ors. 05.09. 2011

Application for grant of adjournment - Applicant had obtained injunctive Orders against the Respondents for copyright breaches but some of the Respondents were breaching the injunctions and were thereby guilty of contempt of court - When the matter was listed the Respondent filed for application for adjournment on ground that , relying on what was said to be the ill health of Ms Lurie - Whether the application for adjournment could be granted to the Respondents

Held, Dr Lebedev stated that he had been a treating doctor of Ms Lurie for many years, and his records show that she had attended once or twice a year at his practice in the years leading up to the present consultations. He saw Ms Lurie in July, following what he had been told was a suicide attempt by her and he arranged for some psychiatric assessment to be undertaken by a psychiatric nurse employed by the practice, and subsequently gave Ms Lurie a referral to Dr Arulanantham. Dr Arulanantham has seen Ms Lurie four times since 27 July. He found her to be fearful of the consequences of the Court action but said that she did not understand what was involved in contempt of Court and the nature and consequences of any acts which she may have performed which may or may not have rendered her liable to be found in contempt of Court. He even went so far as to say that she was unable to distinguish between right or wrong, at least in the legal context. He diagnosed her as being seriously depressed. I found the medical evidence less than persuasive. All of it suffered to a greater or lesser extent from the fact that the diagnoses depended upon the history provided by Ms Lurie. Further there are concerns about the medical evidence relied on by the Respondent. The clinical notes and records of interview maintained by Dr Goloub and, more significantly, by Dr Arulanantham seem to be grossly inadequate. Dr Arulanantham gave evidence that he had been told a number of things by Ms Lurie that are not mentioned in any of the notes that he took. He also gave evidence that he had prescribed certain drugs for Ms Lurie. There is no note in his clinical records of him having done so. The medical evidence provided is not sufficient to satisfy the grant of adjournment. Hence Application rejected.