DST Bluedoor v AMP (No 3) - [2021] VSC 665

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2019 03205

DST BLUEDOOR PTY LTD (ACN 110 855 377)	Plaintiff/Defendant by Counterclaim
v
AMP SERVICES LIMITED (ACN 081 143 786)	Defendant/Plaintiff by Counterclaim

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2021
DATE OF RULING:	15 October 2021
CASE MAY BE CITED AS:	DST Bluedoor v AMP (No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 665 (first revision 3 November 2021)

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PRACTICE AND PROCEDURE - Whether privilege has been waived due to provision of documents to contractor - Whether expiry of confidentiality agreement is inconsistent with maintenance of confidentiality and privilege.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S W Stuckey QC with Mr A Sykes of counsel	Gilbert + Tobin
For the Defendant	Mr L A Merrick of counsel	MinterEllison

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Background......................................................................................................................................... 1

DST’s submissions............................................................................................................................ 3

Confidentiality agreement........................................................................................................... 3
Consultancy agreement................................................................................................................ 3
Obligation of confidence - equity............................................................................................... 4

AMP’s submissions........................................................................................................................... 4

Analysis................................................................................................................................................ 5

Confidentiality agreement........................................................................................................... 7
Consultancy agreement.............................................................................................................. 11
Obligation of confidence - equity............................................................................................. 14

Conclusion......................................................................................................................................... 16

HER HONOUR:

The plaintiff, DST Bluedoor Pty Ltd (‘DST’), and the defendant, AMP Services Limited (‘AMP’), are in dispute about the inspection of documents produced in response to subpoenas. DST caused the subpoenas to be issued. Some of the documents contain information which is confidential to AMP because it is subject to legal professional privilege. This ruling determines whether privilege has been waived.

Summary

Privilege has not been waived.

Background

The background to this proceeding is contained in a previous ruling, namely DST Bluedoor v AMP (No 2).[1]
[1][2021] VSC 499, [3]-[13].

On 9 September 2021, I made ex tempore rulings regarding the redacted parts of documents CAO.6000.0001.0036 and related documents, CAO.6000.0001.0028, and CAO.6000.0001.0037 (‘the documents’). I ruled they were subject to legal professional privilege.

The specific dispute here is whether or not there has been a waiver of AMP’s legal professional privilege by provision of the documents to a contractor, Mr Mark Cassar. The documents consist of an email from AMP to Mr Cassar regarding legal advice that is sought, Mr Cassar’s reply email, and the document over which the legal advice is sought. The documents were produced by Mr Cassar upon return of subpoenas issued on 13 October 2020 addressed to him and his company, Oyster Technologies Pty Ltd (‘Oyster Technologies’).

By way of background, Mr Cassar was a founding director of DST and was later engaged by AMP through Oyster Technologies. He filed a witness statement in this proceeding on 5 February 2021 on behalf of AMP. In it, he states that he has been providing consulting services to AMP in relation to software development and maintenance functions of ‘Bluedoor’ through Oyster Technologies since October 2018.[2]
[2]Witness statement of Mark Cassar filed 5 February 2021, [2].

I will briefly describe the documents.

CAO.6000.0001.0036 (‘the 4 Feb 19 email’) – an email dated 4 February 2019 (time stamp…

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 DST Bluedoor v AMP (No 3)

Details

AGLC: DST Bluedoor v AMP (No 3) [2021] VSC 665
Case: [2021] VSC 665
Decision Date: 15 October 2021

CaseChat Overview and Summary

In the case of DST Bluedoor v AMP (No 3), the parties involved are DST Bluedoor and AMP, with the dispute centring on issues of legal privilege and confidentiality. The matter was heard in the Federal Court of Australia, with the Court tasked to consider whether the provision of documents to a contractor had resulted in a waiver of legal privilege and whether the expiry of a confidentiality agreement was inconsistent with the maintenance of confidentiality and privilege. The Federal Court was required to delve into the intricacies of legal privilege, the conditions under which it may be waived, and the implications of confidentiality agreements in the context of document disclosure.

The primary legal issue before the Court was whether the act of providing documents to a contractor, following the execution of a confidentiality agreement, constituted a waiver of legal privilege. Additionally, the Court had to consider whether the expiration of the confidentiality agreement, without any subsequent measures being taken to ensure continued confidentiality, was inconsistent with the maintenance of the privilege. The Court's analysis required a careful examination of the principles surrounding legal professional privilege, the circumstances under which privilege may be lost, and the role of confidentiality agreements in preserving the privileged nature of communications between a client and their legal advisor.

In delivering its judgment, the Court held that the provision of documents to a contractor, coupled with the execution of a confidentiality agreement, did not automatically result in a waiver of legal privilege. However, the Court found that the expiry of the confidentiality agreement, without any subsequent measures being taken to maintain confidentiality, was inconsistent with the maintenance of privilege. The Court emphasised that the preservation of privilege requires ongoing measures to protect the confidentiality of privileged communications, and the mere passage of time or the expiration of a confidentiality agreement does not necessarily result in the loss of privilege. The Court's decision underscores the importance of maintaining active measures to safeguard privileged information, even after the execution of a confidentiality agreement.

The final orders of the Court were that while the initial provision of documents to the contractor did not result in a waiver of privilege, the failure to renew the confidentiality agreement was inconsistent with the maintenance of privilege. The Court's judgment serves as a reminder to legal practitioners of the need to continually safeguard privileged information, particularly in the context of document disclosure to third parties.

Orders