FEDERAL COURT OF AUSTRALIA

Parkin v Boral Limited (Loss of Privilege Issue) (No 2) [2024] FCA 1082

ORDERS

UPON THE UNDERTAKING BY THE RESPONDENT THROUGH ITS SENIOR COUNSEL THAT ANY APPLICATION FOR LEAVE TO APPEAL FROM THE RULINGS MADE ON 9 SEPTEMBER 2024 BE PURSUED BY THE RESPONDENT AS EXPEDITIOUSLY AS POSSIBLE, THE COURT ORDERS THAT:

1.    The hearing of these proceedings be adjourned and are to be relisted on a date to be notified to the parties following determination of any application for leave to appeal.

2.    All costs associated with the adjournment of the proceedings and the applications which gave rise to the orders dated 9 September 2024 be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

1    In Parkin v Boral Limited (Loss of Privilege Issue) [2024] FCA 103 (judgment) (at [145]–[150]), I indicated that I was somewhat vexed as to whether I should arrange for the cross-examination of Mr Kane to resume immediately (by video-link, if necessary) or await the determination of any application that Boral may make for leave to appeal.

2    I have been informed today that Boral do propose to make an application for leave to appeal and, in those circumstances, seeks an adjournment of the part-heard trial possibly leading to a bifurcation of the trial by reason of an interlocutory appeal as to an evidentiary ruling.

3    As I indicated in my judgment, if my rulings were wrong, it may not matter for at least three reasons which, for convenience, I will set out below:

[148]     First, after hearing the applicants’ opening and part of Boral’s opening, I expressed the preliminary view that it seemed to me that the primary issue in the case was whether the information of which Boral officers were said to be aware was material in the sense provided for by s 677 of the Corporations Act. If, after hearing all the evidence and submissions, this preliminary view is fortified, even if one was to assume that all Boral’s contentions about the adequacies of its controls were rejected, it would still be necessary for the applicants to prove both materiality and then causation of loss. A failure to do so would be determinative.

[149]     Secondly, irrespective of whatever emerges from hearing all the evidence from Mr Kane, including the Proposed Kane Evidence (and reviewing all other evidence relevant to the adequacy of controls, including the expert evidence), I may find, as Boral submits, that the controls were adequate.

[150]     Thirdly, assuming that I did ultimately conclude that Boral had inadequate controls and that the Proposed Kane Evidence or Ex A1 was indispensable to a conclusion the pleaded information existed, and there was a successful ground of appeal in due course necessitating a Full Court forming its own view, or a retrial, it is not clear to me why it would not be possible for the evidence wrongly admitted to be excluded from any reconsideration.

4    The points made by senior counsel today militating against the above analysis appear to be three-fold. In dealing with them, I will use (in large part) the defined terms referred to in my judgment.

5    The first is that those acting for the applicants may obtain some “derivative” use of information given by Mr Kane in cross-examination. That is, if Mr Kane gives answers to questions posed to him in cross-examination based on privileged material, then those answers may be used to reformulate a case concerning inadequate controls which (if my rulings were incorrect) may involve an advantage being given to the applicants which could not be remedied in circumstances where my rulings were wrong.

6    The second is that without wishing to put it unfairly, it is not possible to “unscramble the egg” in identifying the answers given by Mr Kane in questions posed to him in cross-examination because he has been asked questions based on privileged communications.

7    The third issue raised was an approach that I had foreshadowed in my judgment (at [105]) that there may be no end to the material that may be required to be produced because it may involve production of matters including the A&B Reports.

8    I will deal with the first two matters together. Mr Kane is obliged to give truthful answers to the questions posed in cross-examination. If a question obliges him to give an answer which Boral asserts may reveal privileged information, it can be objected to. There is nothing in my reasons preventing proper objections based upon any client legal privilege held by Boral, except in a limited way expressly authorised by statute (given my findings as to loss of client legal privilege in relation to the relevant communication and my further findings that client legal privilege does not prevent the adducing of evidence of another limited class of communication given it is reasonably necessary to enable a proper understanding of the relevant communication: see s 126 EA).

9    Irrespective of the foundation which may give rise to an answer given by Mr Kane in cross- examination (whether that foundation be privileged or not privileged), he is still obliged to give a truthful answer. As to any issue concerning “derivative use” of any answers, the core of the argument seems to be that if the Proposed Kane Evidence involves the disclosure of some representations of EY about deficiencies in controls which have not hitherto been ascertained by the applicants, that this might cause some change in the way in which the applicants put their case.

10    I have some difficulty in understanding why this amounts to a prejudice in any real sense (at least in the abstract). If there is to be a significant change in the way in which the applicants put their case based upon matters emerging at trial, it would need to be the subject of an amendment application. That hypothetical amendment application would be determined in accordance with the usual principles which attend such applications, including whether or not the amendment would cause undue disruption to the trial and whether it was just, in all the circumstances, to accede to such an application given the history of this matter. Any such amendment may well be refused, but it suffices to say at present that it is an odd prejudice to say that in the event that I was somehow satisfied it was just to allow an amendment of the applicant’s case, this would amount to a relevant prejudice to the respondent (because the prejudice would have been considered and weighed on the amendment application). In any event, at this stage, this is all mere speculation.

11    As to the third issue, as I have explained, my ruling is confined. Despite Boral stating in submissions, more than once, it is somehow wider than it is, the ruling only permits adduction of evidence related to specified representations made by EY at a specified time. It is no broader than that. The notion that there has been some wide-ranging licence given to the applicants to seek to delve into other material subject to a proper claim for privilege, being material which is not reasonably necessary to understand the relevant communication over which privilege was lost is without substance.

12    I am required to resolve this matter in accordance with the overarching purpose in Pt VB of the FCA Act, which necessitates the proceeding is dealt with efficiently. Any adjournment of the trial now will cause real uncertainty as to when the trial can be completed (although a short adjournment would still allow Mr Kane’s evidence to be completed relatively promptly). But I am acutely conscious that due to present hearing and other commitments, if the trial was adjourned for a lengthy period pending an appeal, there is real doubt that I will be able to return to it until well into the second part of next year.

13    The applicants take an essentially passive role in relation to this issue. Indeed, the applicants indicated today that they recognised there are difficulties in resuming the cross-examination of Mr Kane immediately, given the application for leave to appeal. As noted by Boral, irrespective of the concerns I expressed in the judgment, the position taken by the applicants does seem to me to be a powerful discretionary consideration in favour of an adjournment, at least for a short period, for an application to be made for leave to appeal.

14    In exercising my discretion as to adjourning, I have had regard to the applicants’ attitude and the case management imperatives in Pt VB. I have also had regard to Boral’s arguments, although I do not consider that Boral has convincingly explained why, even on a worst-case scenario, one could not “unscramble the egg” and have no regard on any rehearing to material admitted wrongly (if my ruling was ultimately found to be in error). I will not speculate as to the prospects of the application for leave to appeal for obvious reasons.

15    In all the circumstances, it seems to me appropriate that I take a cautious view, notwithstanding my misgivings about whether or not there is any real prejudice which necessitates an adjournment. Hence I will adjourn the proceedings for a short period to allow the application for leave to appeal to be made and determined, subject to the provision of an undertaking on behalf of Boral to file any such application by 5pm on Friday, 13 September 2024, and thereafter to proceed to have the application dealt with as expeditiously as possible. I will also reserve all costs associated with the adjournment of the hearing.

Associate:

Dated: 17 September 2024