| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICAL REVIEW AND APPEALS LIST
S ECI 2021 01465
| DIANA ASMAR IN HER CAPACITY AS SECRETARY OF THE HEALTH SERVICES UNION VICTORIA NO 1 BRANCH T/A THE HEALTH WORKERS UNION & ORS (according to the attached Schedule) | Plaintiffs |
| v | |
| THE HONOURABLE ANTHONY ALBANESE & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Matthews AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 June 2021 |
DATE OF RULING: | 4 June 2021 |
CASE MAY BE CITED AS: | Asmar v Albanese (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 324 |
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PRACTICE AND PROCEDURE – Legal professional privilege – Evidence Act 2008 (Vic), ss 118 and 119 – Defendants not required to produce the disputed documents for inspection, as to do so would be to disclose privileged communications, being legal advice.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr E Nekvapil | Robinson Gill |
| For the 1st-9th, 11th, 14th-21st, and 23rd Defendants | Mr J H Kirkwood with Mr G Jegatheesan | Holding Redlich |
HER HONOUR:
By order made by the Honourable Justice Ginnane on 2 June 2021, the hearing and determination of the dispute as to whether certain documents discovered by the defendants pursuant to orders made by his Honour on 27 May 2021 (‘Discovery Order’) are privileged was referred to me for hearing and determination (‘Privilege Dispute’).
The trial of the proceeding is currently being heard by his Honour, and as I apprehend it, the Privilege Dispute was referred to me as it was anticipated that the subject documents would likely need to be inspected in order to determine the Privilege Dispute.
I heard the Privilege Dispute in the afternoon of 3 June 2021 and indicated that I would deliver my ruling, and hopefully my reasons for that ruling, at 10.00 am the next morning. This is that ruling and my reasons for it. By necessity, these reasons are very brief, so as not to cause any delay in the continuation of the trial.
The principles in respect of legal professional privilege are well known and have been summarised in many decisions of this and other Courts. There is no need for me to set them out here, and in any event there was no real contest between the parties as to the principles. Rather, the contest was in respect of whether the particular documents were privileged.
The First to Ninth, Eleventh, Fourteenth to Twenty-first, and Twenty-Third Defendants (‘Relevant Defendants’) rely on the affidavit of Paul Eric Erickson affirmed 3 June 2021 and the affidavit of Evan Stanley Willis affirmed 3 June 2021. The Plaintiffs rely on the affidavit of Ali Besiroglu affirmed 3 June 2021.
The background to this proceeding is summarised in Asmar v Albanese [2021] VSC 263, along with the key claims and issues in the proceeding, and there is no need for me to repeat those details here. Suffice to…
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- AGLC
- Asmar v Albanese (No 2) [2021] VSC 324
- Case
- [2021] VSC 324
- Decision Date
CaseChat Overview and Summary
The court considered whether the communications in the documents were of a confidential nature and whether they were intended to be confidential. The applicants argued that the documents contained privileged communications between the Albaneses and their legal representatives, and that disclosure of these documents would breach legal professional privilege. The respondents, on the other hand, submitted that the documents were not privileged and should be produced for inspection. The court had to decide whether the privilege applied and, if so, whether it outweighed the respondents' need for the documents in the preparation of their case.
In determining the matter, the court found that the communications in the documents were of a confidential nature and were intended to be confidential. The court held that the documents contained privileged communications between the Albaneses and their legal representatives, and that disclosure of these documents would breach legal professional privilege. The court also found that the respondents' need for the documents did not outweigh the privilege claimed by the applicants. Accordingly, the court ordered that the respondents were not to inspect the documents and that the applicants were not required to produce the documents for inspection.
The court ordered that the respondents were not to inspect the documents in question and that the applicants were not required to produce the documents for inspection.
Orders
Orders of the court
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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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