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Bradford v Devlot 17 Pty Ltd

Bradford v Devlot 17 Pty Ltd

Case [2020] VSC 792 27 November 2020

Appeal

Admissibility of Evidence

Legal Privilege

Discovery & Disclosure

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 01134

VICKI ADELE BRADFORD and JONATHAN ALAN UPHILL	Plaintiffs/Defendants by counterclaim
v
DEVLOT 17 PTY LTD (ACN 126 265 790)	Defendant/Plaintiff by counterclaim

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2020
DATE OF RULING:	27 November 2020
CASE MAY BE CITED AS:	Bradford v Devlot 17 Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 792

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PRACTICE AND PROCEDURE – Appeal from judicial registrar – Objection to subpoenas – Legal professional privilege – Waiver on basis of disclosures in witness statement – Whether concession that there was a waiver can be withdrawn on appeal - Whether conduct is inconsistent with maintenance of privilege – Scope of waiver - Mann v Carnell (1999) 201 CLR 1, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Lorbeer	Aitken Partners
For the Defendant	Mr P B Murdoch QC	Clayton Utz

HER HONOUR:

This is an appeal brought by the defendant pursuant to r 84.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) against certain orders made by Judicial Registrar Matthews dated 22 May 2020. Those orders were made pursuant to a ruling published on 7 May 2020 (‘the Ruling’).[1]
[1]Bradford v Devlot 17 Pty Ltd [2020] VSC 246 (‘The Ruling’).

The orders made by the judicial registrar included orders that the plaintiffs produce certain disputed documents sought under a subpoena (‘the Aitkens subpoena’) addressed to Aitken Partners Pty Ltd trading as Aitken Partners (‘Aitkens’) (as referred to in Schedule 1 to the Ruling). Aitkens were the solicitors for the plaintiffs from about April/May 2015. The judicial registrar otherwise ordered that an objection on the ground of legal professional privilege (‘LPP’) was upheld.[2]
[2]The judicial registrar’s Ruling and order dated 22 May 2020 dealt only with the Aitkens subpoena objections.

The orders made on 22 May 2020 were made in consequence of an inspection of the disputed documents set out in Schedule 1, and the application of an earlier ex tempore ruling made by the judicial registrar on 11 February 2020 (described as the ‘Issue Waiver Ruling’).[3]
[3]See the Ruling (n 1) [35].

The appeal is an appeal de novo.[4] However, it became apparent at the hearing of the appeal that there are two primary issues for consideration:

·whether the plaintiffs waived LPP by reason of certain statements made in a witness statement of a Mr Robert Bradley dated 15 January 2020 (‘the Bradley statement’). Mr Bradley is a principal of Aitkens. This in turn raised an issue as to whether the plaintiffs should be permitted to withdraw an earlier concession that there had been a waiver of privilege by reason of the filing of this statement; and
·if privilege had been waived, the scope of the waiver.

[4]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 84.05(4).

There was general agreement that…

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 Bradford v Devlot 17 Pty Ltd

Details

AGLC: Bradford v Devlot 17 Pty Ltd [2020] VSC 792
Case: [2020] VSC 792
Decision Date: 27 November 2020

CaseChat Overview and Summary

The matter before the court was an appeal from a decision of a judicial registrar who ruled that subpoenas issued by the respondent, Devlot 17 Pty Ltd, to the appellant, Bradford, were not objectionable on the basis of legal professional privilege. The appellant sought to appeal this decision, arguing that the privilege had not been waived and that the subpoenas were therefore invalid. The appeal was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the appellant could successfully appeal the judicial registrar’s decision that legal professional privilege had been waived based on disclosures made in a witness statement. The court had to determine whether the concession by the appellant that there had been a waiver of privilege could be withdrawn on appeal and whether the appellant's conduct was inconsistent with the maintenance of privilege. Additionally, the court needed to ascertain the scope of the waiver in accordance with the principles set out in Mann v Carnell.

The court held that the appellant could indeed appeal the decision of the judicial registrar. The court found that the concession by the appellant that there had been a waiver of privilege could be withdrawn on appeal, as it was not a final determination on the issue of privilege. The court further found that the appellant’s conduct was consistent with the maintenance of privilege, as the appellant had consistently maintained that the privilege had not been waived. The court also determined that the scope of the waiver was limited to the specific information disclosed in the witness statement, in line with the principles outlined in Mann v Carnell. As a result, the court allowed the appeal and quashed the decision of the judicial registrar.

Orders