Cargill v Viterra Malt (No 3)

In the matter of Cargill v Viterra Malt, the parties were engaged in a dispute that involved issues of costs and legal professional privilege. The case was heard and determined in the Federal Court of Australia. The Cargill Parties sought apportionment of costs as a reflection of their success on specific issues during the application. The Viterra Parties contested this and also sought to have certain documents produced, over which privilege was claimed.

The central legal issues before the court were whether the apportionment of costs should be based on the success of specific issues and whether there had been an implied waiver of legal professional privilege in relation to certain documents. The court examined the time spent on particular issues during the hearing to determine the appropriate apportionment of costs. It found that awarding costs on an 'issue basis' was appropriate and followed the precedent set in GT Corporation Pty Ltd v Amare Safety Pty Ltd.

The court determined that the Viterra Parties were successful in relation to the independence of in-house counsel and the production of a specific document. Consequently, the Viterra Parties were ordered to pay sixty per cent of the Cargill Parties’ costs associated with the summons dated 14 February 2017. Regarding the waiver of privilege, the court held that there was no conduct by the Cargill Parties inconsistent with maintaining legal professional privilege over documents that evidence their knowledge of relevant matters. Therefore, the application for waiver of privilege was dismissed.