EFM Logistics v David Weerden - [2019] VSC 100

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S ECI 2018 02817

EFM LOGISTICS SERVICES GROUP PTY LTD (ABN 35 144 724 685)	Plaintiff
v
DAVID WEERDEN & ORS (according to the schedule attached)	Defendants

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REASONS FOR DECISIONS
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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2019
DATE OF JUDGMENT (REVISED):	21 February 2019
CASE MAY BE CITED AS:	EFM Logistics v David Weerden & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 100

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PROCEDURE – Discovery – Privilege against self-incrimination – Inspection of documents – No real or appreciable risk of civil contempt of court – No recognisable risk to first defendant – Documents discoverable – Evidence Act2008 (Vic) ss 128A, 131A.

COSTS – Discovery of documents.
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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Maiden QC with Mr J Kohn	KHQ Lawyers
For the First Defendant	Mr J Foster	Macpherson Kelley
No appearances for the Second and Third Defendants

HIS HONOUR:[1]

Privilege ruling

[1]The rulings which follow are written version of the oral rulings given by the Court on 21 February 2019.

In this proceeding on 20 December 2018, Cavanough J made orders restraining the first defendant from directly or indirectly soliciting, canvassing, or approaching any customer of the plaintiff, or any related body corporate, with a view to obtaining the business or custom of such customer for the benefit of the first defendant or for the benefit of any other person, or with a view to otherwise detrimentally affecting the relationship between the customer and the plaintiff or its related body corporate.
This injunction was not an outright prohibition of every communication or possible contact between the first defendant and customers of the plaintiff, but was a prohibition on soliciting, canvassing or approaching for the purpose described in the injunction.
On 6 February 2019 the first defendant was ordered to file and serve an affidavit of documents, disclosing documents relating to or evidencing conduct prohibited by the injunction. On 13 February 2019, the first defendant took objection in an affidavit to the production of certain documents, on the ground that there was a risk of self-incrimination under s 128A of the Evidence Act 2008 (Vic) (‘Evidence Act’).
At the same time, the first defendant filed a sealed affidavit of documents, sworn 12 February 2019 and copies of the exhibits listed in the affidavit. The affidavit and the exhibits have since been held in a sealed envelope by the Prothonotary.
As discussed during the proceeding, the operative provision of the Evidence Act is
s 131A, rather than s 128A. Section 128A applies to freezing orders and search orders made under ords 37A and 37B of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) which govern these types of orders. Freezing orders and search orders were formerly known as Mareva injunctions and Anton Piller orders. No such order has been made in this proceeding.
It is s 131A that applies where orders are made…

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 EFM Logistics v David Weerden

Details

AGLC: EFM Logistics v David Weerden [2019] VSC 100
Case: [2019] VSC 100
Decision Date: 21 February 2019

CaseChat Overview and Summary

The case of EFM Logistics v David Weerden involved a dispute over the discovery of documents held by the first defendant, David Weerden. The plaintiffs sought an order for the inspection and production of certain documents. The matter was heard in the Supreme Court of Victoria. The key issue before the court was whether the documents were subject to a recognised privilege, specifically the privilege against self-incrimination, and thus protected from disclosure. Additionally, the court had to determine if there was a real or appreciable risk of civil contempt of court or if there was a recognisable risk to the first defendant if the documents were produced.

The court examined the provisions of the Evidence Act 2008 (Vic) and found that the privilege against self-incrimination did not apply to the documents in question. The court further concluded that there was no real or appreciable risk of civil contempt of court and no recognisable risk to the first defendant if the documents were produced. The court held that the documents were discoverable under the relevant legislation. The plaintiffs were thus entitled to the inspection and production of the documents as sought.

The final orders of the court were that the plaintiffs were granted the inspection and production of the documents. The first defendant was ordered to comply with the court's direction and provide the documents to the plaintiffs. The costs associated with the application for discovery were awarded to the plaintiffs.

Orders