Asmar v Albanese (No 2) - [2021] VSC 324

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

---

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

---

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.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr E Nekvapil	Robinson Gill
For the 1^st-9^th, 11^th, 14^th-21^st, and 23^rd 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…

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.

Continue reading Asmar v Albanese (No 2)

Details

AGLC: Asmar v Albanese (No 2) [2021] VSC 324
Case: [2021] VSC 324
Decision Date: 4 June 2021

CaseChat Overview and Summary

The respondents, Mr and Mrs Asmar, commenced proceedings against the applicants, Mr and Ms Albanese, seeking various relief in relation to a property transaction. The respondents sought an order for production of documents to assist in the preparation of their case, which the applicants opposed on the basis of legal professional privilege. The matter was heard in the Supreme Court of Victoria, which was required to determine whether the privilege applied to the documents in question.

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