Alphington Developments Pty Ltd v Amcor Limited (No 3) - [2018] VSC 544

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2017 00145

ALPHINGTON DEVELOPMENTS PTY LTD (ACN 164 529 864)	Plaintiff
v
AMCOR LIMITED (ACN 000 017 374)	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2018, further written submissions filed 30 July 2018, 3 August 2018, 7 August 2018 and 17 September 2018
DATE OF JUDGMENT:	20 September 2018
CASE MAY BE CITED AS:	Alphington Developments Pty Ltd v Amcor Limited (No 3)
MEDIUM NEUTRAL CITATION:	[2018] VSC 544

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PRACTICE AND PROCEDURE – Legal professional privilege – Claim in respect of documents produced by third party pursuant to plaintiff’s subpoena – Section 131A of Evidence Act 2008 (Vic) (‘Act’) does not apply – Third party engineering consultant retained by defendant during relevant period – Whether any duty of confidence owed, such that communications exchanged pursuant to retainer were confidential – Finding that retainer carried an implied obligation of confidence – Whether the nature of the retainer established or informed the purpose of individual communications initiated or received pursuant to that retainer – Finding that the scope of the third party’s retainer informs the determination of the purpose of individual communications but not the question of protection by legal professional privilege – Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357, applied - Contract for sale between the parties contained provision for expert determination process – Meaning of ‘Australian court’ under the Act – Whether the common law doctrine of litigation privilege extends to the expert determination process – Evidence Act 2008 (Vic), s 119 – Dura Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2011] VSC 377, referred to – AWB v Cole (No 5) [2006] 155 FCR 30, applied – Ingot Capital Investments Pty Ltd v Macquarie Capital Markets Ltd (2006) 67 NSWLR 91, referred to – Finding that common law test does not extend to the expert determination process – Whether defendant has waived privilege by appointing the third party as its technical expert, or any ‘issue waiver’ – Commissioner of Taxation v Rio Tinto (2006) 151 FCR, 341, referred to – Cargill Aust Ltd & ors v Viterra Malt Pty Ltd & ors (No 7) [2018] VSC 99, applied – Viterra Malt Pty Ltd & ors v Cargill Australia & ors [2018] VSCA 118, applied – No waiver of privilege

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Aghion with Ms G Douglas	Kalus Kenny Intelex
For the Defendant	Ms K O’Gorman	Gilbert + Tobin

HER HONOUR:

Introduction and procedural history

The plaintiff (‘Glenvill’) is a special purpose vehicle established for the purpose of purchasing and redeveloping a substantial redundant industrial site in Alphington (‘site’), an established suburb in north‑east Melbourne. The defendant (‘Amcor’), is the vendor of the site. Under the terms of the contract of sale dated 28 June 2013 (‘contract of sale’), which has subsequently been novated and varied, Amcor is obliged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 544
Decision Date: 20 September 2018

CaseChat Overview and Summary

In Alphington Developments Pty Ltd v Amcor Limited (No 3), the Supreme Court of Victoria was tasked with resolving disputes concerning legal professional privilege and the scope of expert determination processes. The plaintiff, Alphington Developments, sought documents from Amcor Limited, which were produced by a third-party engineering consultant retained by Amcor during the relevant period. The primary legal issues before the court were whether the third-party consultant owed a duty of confidence to Amcor and if the communications between Amcor and the consultant were protected by legal professional privilege.

The court determined that the retainer between Amcor and the engineering consultant implied an obligation of confidence, thereby making the communications confidential. However, the court found that the nature of the retainer informed the purpose of individual communications but did not determine the privilege protection. The court applied the principles from Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 to reach this conclusion. Additionally, the court addressed whether the common law doctrine of litigation privilege extended to the expert determination process under the contract between the parties. The court concluded that the common law test did not extend to the expert determination process, relying on AWB v Cole (No 5) [2006] 155 FCR 30 and drawing on references from Dura Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2011] VSC 377 and Ingot Capital Investments Pty Ltd v Macquarie Capital Markets Ltd (2006) 67 NSWLR 91. The court also found that Amcor had not waived privilege by appointing the third party as its technical expert, applying the principles from Commissioner of Taxation v Rio Tinto (2006) 151 FCR, 341, Cargill Aust Ltd & ors v Viterra Malt Pty Ltd & ors (No 7) [2018] VSC 99, and Viterra Malt Pty Ltd & ors v Cargill Australia & ors [2018] VSCA 118.

The final outcome was that the plaintiff's claim for the documents produced by the third-party consultant was denied due to the protection of legal professional privilege. The court issued orders dismissing the plaintiff's application for the production of the documents and awarding costs to the defendant.

Orders