Cargill Australia Ltd v Viterra Malt Pty Ltd (No 11)
[2018] VSC 453
•15 AUGUST 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE COMMERCIAL COURT |
S ECI 2014 000146
| CARGILL AUSTRALIA LIMITED (ACN 004 684 173) | Plaintiff |
| v | |
| VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS | Defendants |
| and | |
| CARGILL, INCORPORATED AND OTHERS | Third parties |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 14 AUGUST 2018 |
DATE OF RULING: | 15 AUGUST 2018 |
CASE MAY BE CITED AS: | CARGILL AUSTRALIA LTD v VITERRA MALT PTY LTD (No 11) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 453 |
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LEGAL PRIVILEGE – Evidence at trial – Notes made by witness in preparation for giving evidence – Documents used to try to revive memory of the witness – Whether established particular parts of documents used to try to revive memory – meaning of “about a fact or opinion”- Evidence Act 2008 (Vic), ss 119, 122(6).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff and the 1st and 2nd third parties | Mr P Anastassiou QC Ms L Nichols QC Ms K Burke Ms H Tiplady Mr C Tran Mr T Barry Mr M Tennant | Gilbert + Tobin |
| For the defendants | Mr A Myers QC Mr S Senathirajah QC Mr S Parmenter QC Mr K Wolahan Mr S Prendergast Ms K Dovey Mr O Wolahan | King & Wood Mallesons |
| For the 3rd third party | Mr J Peters QC Mr S Rosewarne | Maddocks |
| For the 4th third party | Mr M Galvin QC Mr D Bongiorno | Ward Lawyers |
| For the 5th third party | Mr R Attiwill QC Ms M Szydzik | Ward Lawyers |
| For the 6th third party | Ms W Harris QC Mr C Archibald Mr T Jeffrie | HWL Ebsworth |
| For the 7th third party | Mr S Pitt Ms C Alden | Ward Lawyers |
HIS HONOUR:
A. Introduction
Matthew Marcus Clark (“Clark”) is a legal practitioner and a witness in this case.[1] In 2013, he gave advice to the first third party (“Cargill, Inc”).[2] Cargill, Inc is the ultimate holding company of the plaintiff, Cargill Australia Ltd (“Cargill Australia”), and the second third party (“Joe White”)[3] (together, “the Cargill Parties”).
[1]Clark gave evidence on 24 and 25 July 2018. He has not been excused as a witness to date as, at the time he gave his evidence, some of the documents with which he had previously tried to revive his memory were located at his residence in New South Wales and had to be located by Clark personally after he had otherwise completed his evidence.
[2]At the time, Clark was a partner of Allens. Allens had been retained by Cargill, Inc in late May or early June 2013 to advise with respect to the possible acquisition of Joe White.
[3]Joe White was formerly known as Joe White Maltings Pty Ltd. It is now known as Cargill Malt Asia Pacific Pty Ltd.
Relevantly, Clark’s advice concerned the rights of Cargill Australia and Cargill, Inc under an acquisition agreement (“the Acquisition Agreement”), executed by them, on 4 August 2013, as “buyer” and “buyer guarantor” respectively. The sellers were the first, second and third defendants,[4] the ultimate holding company of which is the fourth defendant, Glencore International AG (together, “the Viterra Parties”).
[4]Viterra Malt Pty Ltd, Viterra Operations Ltd and Viterra Ltd.
During Clark’s cross-examination, an issue arose as to whether certain documents in Clark’s possession were required to be produced for inspection.
B. Background
In this proceeding, Cargill Australia alleges, amongst other things,[5] that the Viterra Parties breached the Acquisition Agreement and engaged in conduct that was misleading or deceptive in trade or commerce in contravention of the Australian Consumer Law.[6]
[5]For a fuller account of the facts, see Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [6]-[9]; Cargill Australia Ltd v Viterra Malt Pty Ltd [2017] VSC 126, [2]-[28] (Daly AsJ).
[6]Competition and Consumer Act 2010 (Cth), Schedule 2.
As part of the discovery in this proceeding, a large number of documents discovered by the parties have not been produced for inspection on the grounds that they are privileged. The Cargill Parties’ claims for privilege with respect to certain documents were the subject of challenge by the Viterra Parties before the trial commenced.
In response to an application by the Viterra Parties, filed on 21 May 2018, for special leave to appeal to the High Court with respect to a decision of the Court of Appeal,[7] the Cargill Parties waived privilege that had previously been claimed with respect to some documents (“the Waiver”). The Waiver was in the following terms:
[7]Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118 (Whelan, Kyrou and McLeish JJA).
The Cargill Parties hereby elect to waive privilege over all documents over which the Cargill Parties have claimed privilege which record or evidence the knowledge of the Cargill Parties, in the period up to and including 31 October 2013, of the Undisclosed Matters (as defined in paragraph 19 of the second further amended statement of claim dated 10 July 2017 (“the Statement of Claim”)),[8] including all documents which record or evidence the knowledge of the Cargill Parties of:
[8]Paragraph 19 of the Statement of Claim states:
Glencore and/or Viterra did not disclose, either in the Information Memorandum or during Due Diligence, and it was the fact:
(a)that [Joe White] routinely, and without informing customers:
(i)supplied malt to customers that did not comply with contractual requirements and specifications; and
(ii)supplied certificates of analysis to customers that misstated the results of analytical testing on the malt, so that the certificate reported that the malt complied with contractual requirements and specifications when it did not,
(together, “Viterra Practices”);
(b)that the Viterra Practices were partly recorded in and endorsed by policies entitled “Viterra Malt Certificate of Analysis Generation Procedure” and “Malt Blend Parameters Procedure” (together, “Viterra Policies”);
(c)that [Joe White]’s financial and operational performance for the financial year 2010 to part of financial year 2013 (including that reported in the financial and operational information disclosed in the Information Memorandum and during Due Diligence (collectively or in any combination, “Financial and Operational Information”)) was substantially underpinned by [Joe White]’s practice of supplying malt to customers pursuant to the Viterra Practices and the Viterra Policies that did not comply with the relevant customer contracts; and
(d)but for the Viterra Practices, [Joe White] could not produce and sell malt:
(i)in the volumes and to the specifications required by customers;
(ii)in the volumes and for the returns reflected in the Financial and Operational Information
(collectively, individually or in any combination, the “Undisclosed Matters”).
(a)Joe White supplying malt to customers that did not comply with contractual requirements and specifications;
(b)Joe White supplying certificates of analysis to customers that misstated the results of analytical testing on the malt, so that the certificate reported that the malt complied with contractual requirements and specifications when it did not;
(c)the Viterra Policies (as defined in paragraph 19 of the Statement of Claim);[9] and
(d)the effect of the Viterra Practices (as defined in paragraph 19 of the Statement of Claim)[10] on Joe White’s financial and operational performance and Joe White’s ability to produce and sell malt;
(i)in the volumes and to the specifications required by customers; and
(ii)in the volumes and for the returns reflected in the Financial and Operational Information (as defined in paragraph 19 of the Statement of Claim),[11] save for documents brought into existence after 31 October 2013,
save for documents brought into existence after 31 October 2013 for the dominant purpose of the Cargill Parties obtaining legal services with respect to this proceeding (or anticipated proceedings as the case may be).
[9]See fn 8 above.
[10]Ibid.
[11]Ibid.
C. The documents
Clark gave evidence that he was provided with documents by the solicitors for the Cargill Parties (“Gilbert + Tobin”) on a number of occasions for the purpose of preparing to give evidence. First, he was given a folder of documents at a meeting held in May or June 2018 (“the Earlier Folder”). At the time he gave evidence at the trial, the Earlier Folder was not within the jurisdiction.[12] Secondly, Clark was provided with some further documents by an email sent on the weekend before he gave evidence (“the Emailed Documents”). Finally, Clark was given a further folder of documents the day before he commenced his evidence (“the Later Folder”).
[12]See fn 1 above.
There was no contest that, before giving evidence, Clark used a number of documents to try to revive his memory for the purposes of giving evidence at trial. Where it is common ground that documents were used for that purpose, they have already been produced for inspection.[13]
[13]But also see par 23 below.
The remaining issue before the court concerns the production of documents which are still in dispute. Those documents fall into 2 categories:
(1) Handwritten notes made by Clark while preparing to give evidence.
(2)Documents provided to Clark that fall outside the scope of the Waiver.
In this respect, the Cargill Parties contend that the evidence adduced from Clark during cross-examination does not establish Clark used all of these documents for the relevant purpose.
D. Applicable provisions
Division 1 of Part 3.10 of the Evidence Act 2008 (Vic) is concerned with “client legal privilege”. Broadly speaking, the division contains provisions concerning privilege that protects clients from disclosing legal advice[14] and confidential communications or documents relating to proceedings, actual, anticipated or pending.[15]
[14]Section 118.
[15]See par 14 below.
Section 122 is concerned with the loss of client legal privilege. Relevantly, subs (6) provides:
This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion …
With respect to s 122(6), the following observation was made in Moran v Moran (No 9):[16]
Section 122(6), in my view, contains an important qualifying phrase. The Division dealing with privilege (Pt 3, Div 10) does not prevent the adducing of evidence of a document used by a witness to revive his or her memory about a fact or opinion. The fact or opinion must relate to the evidence which the witness gives, or is able to give. The touchstone is fairness. Where a witness has given evidence about a fact or opinion, and has refreshed his or her recollection from a document relevant to that fact or opinion, the document used to refresh the witness’ recollection should be made available to the cross-examining Counsel upon request. It would be unfair were it otherwise.
(Original emphasis.)
This passage was central to the submissions of the parties on this application. Of course, it is the language of the relevant provision that must be the primary focus of the court in determining the issues at hand.[17]
[16](2000) Aust Torts Reports 81-558, 63,696 [15] (Kirby J).
[17]Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1, 10 [24] (Gleeson CJ, McHugh, Gummow and Hayne JJ), and the cases there cited; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 180.7 (Isaacs J); Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 161.10-162.2 (Higgins J).
Section 119 is also relevant. It provides:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared—
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Ordinarily, confidential communications between a prospective witness and a legal practitioner of a client involved in litigation will give rise to the client being able to claim privilege under this provision.[18]
[18]See Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32, 41-42 [27]-[30], 43 [31]-[32] (Finkelstein J), and the cases there cited.
E. The evidence
With respect to the use of documents to revive his memory, Clark gave evidence under cross-examination which included the following:
Mr Myers: In preparing to give your evidence today, did you look at any documents?---Yes, I have.
You refreshed your memory from those documents, did you?---Yes, I did.
And who provided the documents to you?---They were provided by Gilbert + Tobin.[19]
[19]The Cargill Parties’ solicitors.
And further:
When did you next meet with [Gilbert + Tobin] and were provided with documents?---Last week.
And that was here in Melbourne, was it?---Yes.
And you were provided with further documents, were you?---Yes.
And you read those documents?---Not all of them.
Did you read any of them, sir?---Yes.
And you did so for the purposes of preparing yourself to give evidence?---Yes.
And then on Sunday you received a further email which provided to you documents and you read those documents with---?---I read some of them.
Just let me finish the question?---Sorry.
You were provided with some documents on Sunday by email?---Mm-hm.
And you read those documents or some of them?---Mm-hm.
For the purposes of preparing yourself to give evidence?---Yes.
After this evidence was given, a call was made for production of all documents within the 3 repositories (being the Earlier Folder, the Emailed Documents and the Later Folder). There was then an exchange between counsel in which the Viterra Parties’ senior counsel clarified that he had only called for documents from which Clark had refreshed his memory. It was observed by senior counsel that Clark was the only person who knew which documents had been used for that purpose.
The documents that were located in the precincts of the court (and therefore available to Clark) were then obtained.[20] It was suggested by the Cargill Parties’ senior counsel that Clark should identify which of the documents in the Later Folder were used to refresh his memory for the purposes of giving evidence.
[20]See fn 1 above.
The cross-examination of Clark then resumed. With respect to the documents in the Later Folder, Clark gave evidence that it contained a chronology of events and an outline of the evidence he was proposing to provide or was likely to provide. He stated that these documents had been given to him by Gilbert + Tobin. Following this evidence, the documents in the Later Folder were then called for production. There was no objection to this course, save for the handwritten notes Clark said he had made on some of the documents.
The cross-examination again resumed. Clark gave evidence that 6 pages of the chronology contained notes, some of which were made by Clark of his own volition, while preparing to give evidence, and others recorded a conversation he had with Gilbert + Tobin where he inquired as to the extent of the Waiver. Clark said he made notes reflecting what Gilbert + Tobin told him were the areas where privilege had been waived and where it had not been waived.
Clark was then invited by the court to attach yellow tags to those notes that recorded his discussion with Gilbert + Tobin about the extent of the Waiver. This was done in the witness box by Clark.
After further submissions were made, the Cargill Parties contended it was still not clear the extent to which Clark had used documents to try to revive his memory. Accordingly, Clark was subjected to further cross-examination as follows:
Mr Myers: I will clarify it. You used the folder in Rose Bay [ie the Earlier Folder] to refresh your memory, didn’t you, Mr Clark?---Yes.
And you used that folder [ie the Later Folder] to refresh your memory, didn’t you?---Yes.
And you also received some documents by email on Sunday and you used those documents to refresh your memory?---Yes.
After this evidence was given, yet a further call was made for the documents.
F. Ruling
F.1 Clark’s notes
With respect to the handwritten notes, the matter has largely been resolved. Although not previously produced for inspection, the Cargill Parties indicated they had no objection to the notes made by Clark of his own volition, as part of his review of the documents, being produced for inspection.
As to the notes made of his conversation with Gilbert + Tobin of the extent of the Waiver, those notes fall squarely within s 119 of the Evidence Act. To adopt the language of the section, disclosure of these notes would result in disclosure of a confidential communication between the Cargill Parties’ lawyer (Gilbert + Tobin) and another person (Clark) that were made for the dominant purpose of the Cargill Parties being provided with professional legal services relating to an Australian proceeding in which each of the Cargill Parties is a party.
F.2 Documents used to try to revive memory
The evidence as ultimately given by Clark demonstrates that he “used” the documents to try and revive his memory for the purpose of giving evidence. Although earlier evidence might be somewhat conflicting, when finally asked the direct question as to the use of the Earlier Folder, the Emailed Documents and the Later Folder, Clark gave unqualified evidence that he “used” them to refresh his memory. There was no re-examination by which this evidence was qualified or limited in any way.
The Cargill Parties submitted that the privileged documents that Clark reviewed that did not fall within the ambit of the Waiver were facts or opinions about which Clark was not “able” to give evidence. This was put on the basis that he was not the holder of the privilege and that he was legally unable to give evidence unless and until the Cargill Parties agreed to waive the privilege. There are at least 2 problems with this submission. First, the word “able” is not to be found in the subsection itself, but in the passage from Moran v Moran (No 9) referred to above.[21] Secondly, as was pointed out by the Viterra Parties’ senior counsel, if that construction were adopted, the position would be entirely circular and would deprive the provision of meaningful operation in material respects.
[21]See par 13 above.
Of course, the operation of s 122(6) is not unlimited. If Clark had been provided with a privileged document about which he had no previous knowledge, and its contents were unconnected to any fact or opinion about which he might be able to try to revive his memory, neither the mere provision of that privileged document nor Clarke reading that document would attract the operation of s 122(6).[22]
[22]It is unnecessary to explore whether, in these circumstances, privilege might be waived for some other reason.
For completeness, there is no suggestion that, as a matter of fact, Clark is unable to give evidence about the matters referred to in the documents. They directly relate to his involvement in the acquisition. Further, at the invitation of the Cargill Parties, I have reviewed the documents.[23] That review confirms the nexus between the documents in question and Clark’s involvement in the acquisition.
[23]I have not read them thoroughly, but have looked at them to be able to have a general understanding as to the nature and content of the documents.
In addition, the Cargill Parties submitted that the exception in s 122(6) to the prevention of adducing evidence did not operate in these circumstances because Clark did not purport to give evidence on the matters referred to the documents. Without referring to the contents of the documents, it suffices to say that Clark’s evidence went beyond the subject matter of the Waiver. Further, and in any event, there is nothing in the language of s 122(6) which suggests that its operation is confined to matters about which the witness actually gave evidence.[24]
[24]Spalding v Radio Canberra Pty Ltd (2009) 166 ACTR 14, 26-27 [50] (Refshauge J).
Accordingly, I will order that the remaining documents that have not already been the subject of production be made available for inspection, save that, insofar as the documents contain Clark’s notes concerning the extent of the Waiver,[25] that part or parts of the documents may be redacted before the documents are produced for inspection.
[25]See pars 20-21 above.
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