Cargill v Viterra Malt (No 3) - [2017] VSC 650

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2014 00146

BETWEEN

CARGILL AUSTRALIA LIMITED

(ACN 004 684 173)

Plaintiff

VITERRA MALT PTY LTD (ACN 096 519 658) (and others according to the attached schedule)

Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2017
DATE OF RULING:	17 November 2017
CASE MAY BE CITED AS:	Cargill v Viterra Malt (No 3)
MEDIUM NEUTRAL CITATION:	[2017] VSC 650

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COSTS – Apportionment of costs sought as a reflection of success in relation to discrete issues within the application – Consideration of time spent on particular issues at hearing – Found appropriate to award on an ‘issue basis’ pursuant to GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3) [2008] VSC 296 – Viterra Parties’ successful application in relation to the independence of in-house counsel and production of a document over which privilege was claimed – Held Viterra Parties to pay sixty per cent of the Cargill Parties’ costs of 14 February 2017 summons – No order as to costs of the hearing on 11 April 2017.

EVIDENCE – Legal Professional Privilege – Whether waiver of privilege is implied in relation to specified documents – Waiver sought by reason of Cargill parties having placed in issue their knowledge of certain practices, so as to lay open to scrutiny privileged communications which evidence or otherwise bear upon that knowledge – Held that no conduct on the part of the Cargill Parties was inconsistent with maintenance of legal professional privilege over documents which evidence their knowledge of relevant matters – There must be something more than merely pleading a state of mind – Mann v Carnell (1999) 201 CLR 1 – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr C G Button	Gilbert + Tobin
For the Defendants	Mr A Myers QC with Mr S H Parmenter and Mr O Wolahan	King & Wood Mallesons

HER HONOUR:

Introduction

This ruling concerns three issues in dispute between the parties, two of which arise directly out of my ruling of 30 March 2017 (’30 March ruling’)[1] and orders subsequently made on 6 April 2017 and 11 April 2017 (‘April orders’). The first issue is the costs of the Cargill Parties and the Viterra Parties of the Cargill Parties’ application by their summons filed 14 February 2017 (’14 February summons’), which resulted in the 30 March ruling and the April orders.[2] The hearing of the argument concerning costs was initially listed for hearing on 25 July 2017.

The second issue arose out of correspondence between the parties as a result of the Cargill Parties’ contention that the Viterra Parties had not complied with the April orders, in that they continued to maintain a claim for legal professional privilege over a number of documents apparently concerning the October 2013 investigations which the solicitors for the Cargill Parties maintained were caught by the April orders. On 6 June 2017, Elliott J made, among other…

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.

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Details

Case: [2017] VSC 650
Decision Date: 17 November 2017

CaseChat Overview and Summary

In the case of Cargill v Viterra Malt, the dispute between the parties centred around issues of legal professional privilege and the apportionment of costs in relation to specific aspects of the proceedings. The matter was heard in the Supreme Court of Victoria. The Cargill parties sought costs based on their success in relation to discrete issues within their application, arguing that the costs should reflect the time spent on particular issues during the hearing. The Viterra parties opposed this, arguing that the Cargill parties' actions did not constitute a waiver of legal professional privilege over certain documents.

The legal issues before the court included whether the Cargill parties had impliedly waived legal professional privilege by placing their knowledge of certain practices in issue. The Cargill parties argued that their conduct did not amount to a waiver, as it was necessary to lay open privileged communications to scrutinise their knowledge of relevant matters. The court considered whether there needed to be more than merely pleading a state of mind for a waiver to be implied, as per the case of Mann v Carnell.

The court found that the Cargill parties' conduct did not amount to an implied waiver of legal professional privilege. There must be something more than merely pleading a state of mind to constitute a waiver. Consequently, the application was dismissed. Regarding costs, the court held that it was appropriate to award them on an 'issue basis' pursuant to GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3). As the Viterra parties were successful in relation to the independence of in-house counsel and the production of a document over which privilege was claimed, they were ordered to pay sixty per cent of the Cargill parties' costs of the summons heard on 14 February 2017. No order was made as to the costs of the hearing on 11 April 2017.

Orders