Ambridge Investments Pty Ltd (in liq) (recvr app'td) v Baker (No 4)

[2013] VSC 178

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 02014 of 2005

AMBRIDGE INVESTMENTS PTY LTD (IN LIQUIDATION) (RECEIVER APPOINTED) (ACN 077 299 051)	Plaintiff
v
THEODORE BAKER & OTHERS	Defendant

THEODORE BAKER & OTHERS	Plaintiffs by First Counterclaim
v
AMBRIDGE INVESTMENTS PTY LTD (IN LIQUIDATION) (RECEIVER APPOINTED) (ACN 077 299 051)	Defendant by First Counterclaim

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JUDGE:	VICKERY J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2012
DATE OF RULING:	16 April 2013
CASE MAY BE CITED AS:	Ambridge Investments Pty Ltd (in liq) (recvr app'td) v Baker & Ors (No 4)
MEDIUM NEUTRAL CITATION:	[2013] VSC 178

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PRACTICE AND PROCEDURE – Application by a party that solicitors should pay the costs of the trial of that party – Potentially relevant documents held by the solicitors potentially the subject of client legal privilege in favour of other parties – Issues of potential privilege complex - Confidential hearing ordered - Supreme Court Act 1986 (Vic) ss 18-19.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Foster Nicholson Jones
For the First and Second Defendants	Mr A Herskope	JBT Lawyers
For the Fourth Defendant	Mr L Kirwan	Mark J Ord Lawyers and Consultants
For the Third Parties	Mr J Davies	Landers and Rogers

HIS HONOUR:

1. The Fourth Defendant IMF Pty Ltd (“IMF”), by its summons filed 8 May 2012, seeks orders that its costs of the trial and the costs of an unsuccessful appeal therefrom, be paid by the Third Parties, being two firms of solicitors, Mason Sier Turnbull and Rigby Cooke Lawyers (the “Solicitors”).  The Solicitors at various times have acted as the solicitors for IMF and for other co-defendants in both the trial and appeal.  The trial of the proceeding was split, with only part of the original proceeding having now been determined.  The balance of the original proceeding is yet to be heard and determined.

1. Issues have arisen in IMF’s costs application in relation to potential claims for client legal privilege which may affect the co-defendants in the further prosecution of the balance of the original proceeding.  A hearing was convened on 13 December 2012 to hear argument on these issues.

1. The client legal privilege issues are complex.  They will be costly to resolve and are likely to cause delay in the prosecution of IMF’s costs application and the balance of the trial.  The determination of the issues may also result in an appeal because they will involve points of law which have not yet been authoritatively determined in Victoria.

1. I am mindful of the overarching purpose prescribed by s 7 Civil Procedure Act 2010 to the effect that civil proceedings are to be conducted to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[1]

   [1]Civil Procedure Act 2010 (Vic) s 7.

1. Consistently with the statutory overarching purpose, the counsel who have appeared before me on the present application have consented to a practical method for dealing with the issue by the Court ordering a confidential hearing.  By this means, any client legal privilege which may attach to any document in favour of any party, may be protected, and will not be lost by waiver.

1. Further, and importantly, it will mean that the costs application to be prosecuted by IMF may proceed unimpaired by any restrictions on the use of documents which may be relevant to its application.  Equally, the Solicitors will be in a position to defend the application unimpaired by any such limitations.

1. Indeed, if an order was not made to facilitate the production and use of all relevant documents in IMF’s costs application, the administration of justice is likely to be compromised.

1. On 13 December 2012, there being no appearance on behalf of some of the parties, and Mr Jones, who acts for the Plaintiff Respondent, Ambridge Investments Pty Ltd having excused himself, I made the following orders in the Court of Appeal proceeding (S APCI 2010 0034):

1.All other parties to this proceeding, save for the first respondent, who were not present before the Court on 13 December 2012 be served with:

(a)copies of all written submissions filed with the Court in respect of the hearing on 13 December 2012;

(b)       the transcript of the  hearing on 13 December 2012;

(c)       the orders of 21 November 2012;  and

(d)      a copy of these orders.

2.Those parties will have liberty to apply to be heard in respect of the issues raised in the written submissions and the oral submissions and are directed to make any application to be heard by 8 February 2013.

3.The party Rigby Cooke Lawyers will carry out the service of the documents referred to in paragraph 1.

4.Following the conclusion of the hearing this day the applications be adjourned to 15 February 2013, save that if no application is made by any party to be heard in relation to the applications the adjourned hearing date will be vacated and the Court will proceed to deliver its reasons and make the necessary orders thereon.

1. Similar orders were made in the trial proceeding (S CI 2014 of 2005).

1. No application was made by any party to be heard or heard further in relation to the applications in relation to the client legal privilege issues.

1. It appears to me that it is clearly in the interests of justice that an appropriate order be made for a confidential hearing. Indeed it would be prejudicial to the administration of justice if such an order is not made. Pursuant to ss 18 and 19 of the Supreme Court Act 1986 I am prepared to make such an order.[2]

   [2]Supreme Court Act 1986 (Vic) ss 18–19.

1. I will direct the Rigby Cooke Lawyers party to prepare orders to reflect these reasons and I will hear the parties further on the form of the orders, pursuant to an application to be made at a convenient time to be arranged, should there be no consent or if they are opposed.  In the event that the form of the orders is the subject of consent, or is not opposed, on being satisfied of this state of affairs, and subject to the Court’s review of the proposed orders, they may be made “on the papers”.

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