Fonterra Brands (Australia) Pty Ltd v Bega Cheese Ltd (No 6)
[2020] VSC 96
•6 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
INTELLECTUAL PROPERTY LIST
S ECI 2017 00283
| FONTERRA BRANDS (AUSTRALIA) PTY LTD (ACN 095 181 669) | First Plaintiff/First Defendant by Counterclaim |
| and | |
| BONLAND CHEESE TRADING PTY LTD (ACN 001 148 992) | Second Plaintiff/Second Defendant by Counterclaim |
| v | |
| BEGA CHEESE LIMITED (ACN 008 358 503) | Defendant/Plaintiff by Counterclaim |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 March 2020 |
DATE OF JUDGMENT: | 6 March 2020 |
CASE MAY BE CITED AS: | Fonterra Brands (Australia) Pty Ltd & Anor v Bega Cheese Ltd (No 6) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 96 |
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EVIDENCE – Defendant objected to plaintiffs’ application for leave to cross-examine witness – Objection based on witness’s mental and physical incapacity at time of preparation of witness outline – Whether legal professional privilege waived by reason of defendant putting in issue capacity of witness – No waiver of privilege – Whether defendant should be ordered to produce documents the subject of a claim for privilege which have been used to refresh witness’s memory – Defendant ordered to produce documents – Evidence Act 2008 (Vic) - ss 34, 38, 122(2), 122(6).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs/ Defendants by Counterclaim | Mr G Dalton QC with Mr P Creighton-Selvay | Arnold Bloch Leibler |
| For the Defendant/ Plaintiff by Counterclaim | Mr J Davis QC with Ms X Teo | Gilbert + Tobin |
HIS HONOUR:
There are two issues for determination:
(i)the plaintiffs apply for an order that the defendant produce, for inspection, copies of all records of communications with Mr Barry Andrew Irvin relating to the preparation of his witness outline, including any:
(a)record of the meetings with Mr David Ferguson that Mr Irvin referred to in his evidence at T 2192.9-2193.1;
(b)notes of any other conferences or telephone conversations with Mr Irvin;
(c)emails or other correspondence with Mr Irvin;
(d)drafts of the witness outline provided to Mr Irvin; and
(e)instructions or information (including documents) provided by or to Mr Irvin.[1]
(ii)the plaintiffs also applied pursuant to s 34 of the Evidence Act 2008 (Vic) (Evidence Act), for an order requiring the defendant to produce for inspection, any documents shown to Mr Irvin for the purpose of reviving his memory, whether shown before or after the preparation of his witness outline.[2]
[1]See paragraph 1 of the plaintiffs’ written outline of submissions filed 26 February 2020.
[2]Ibid para 3.
As to the production of the documents set out at paragraph 1(a)-(e) above, the plaintiffs submit that any legal professional privilege in respect of such documents has been lost by virtue of s 122(2) of the Evidence Act. That section provides:
Subject to sub section (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
The plaintiffs submit that the defendant has acted in a manner inconsistent with maintaining a claim for legal professional privilege by putting in issue the health of Mr Irvin when it objected to the plaintiffs being granted leave to cross-examine Mr Irvin on the contents of his outline of evidence.
It is correct that the defendant put in issue Mr Irvin’s health in opposing the plaintiffs’ application for leave to cross-examine Mr Irvin on the contents of his witness outline. Having heard directly from Mr Irvin as to his poor state of health in the second half of 2019, particularly as a result of chemotherapy treatment he received post-surgery in May 2019, I ruled that, putting to one side paragraph 37 of his outline of evidence, the plaintiffs would not be granted leave to cross-examine him upon the contents of his witness outline.
Mr Irvin gave evidence on 24 February 2020 that he commenced a six month course of chemotherapy in June 2019.[3] He gave evidence that he was very ill as a result of that chemotherapy and was experiencing difficulty with memory, low energy, sleeplessness, vomiting and diarrhoea.[4] He read his outline of evidence before it was filed and served on 13 September 2019.[5] However, when he gave evidence on 24 February 2020, save for paragraph 37, he did not agree with the balance of section E of his outline which dealt with the negotiation of clauses 3.1 and 3.2 of the Trade Mark Licensing Agreement. He gave evidence that having re-read the statement prior to giving evidence on 24 February 2020 he believes that he should not have agreed to provide the witness outline. He gave evidence that he was ‘quite uncomfortable’ with the contents of the witness outline because of the level of detail contained therein and the fact that the contents of the outline felt reconstructed rather than being his memory of the events leading up to the execution of the Trade Mark Licensing Agreement.[6]
[3]See transcript of proceedings, 24 February 2020 at T 2185.
[4]Ibid at 2185-6.
[5]Ibid at 2193.5-6.
[6]Ibid at 2206.
Whilst it is clear that the defendant put in issue Mr Irvin’s state of health during the period leading up to the filing of his outline of evidence, it does not follow that the defendant has acted in a manner inconsistent with maintaining a claim for legal professional privilege in respect of documents relating to the preparation of Mr Irvin’s witness outline.
As conceded by Mr Dalton QC, who appeared with Mr Creighton-Selvey for the plaintiffs, there is no authority for the proposition that a party is taken to have waived privilege merely by reason of putting in issue a witness’s mental or physical capacity. Whether there has been a waiver of privilege requires consideration of the test prescribed by s 122(2) of the Evidence Act to the facts of the case at hand.[7]
[7]Viterra Malt Pty Ltd v Cargill Australia Ltd (2018) 58 VR 333, 351 at [72].
Mr Irvin’s mental or physical incapacity is not relevant to the resolution of any pleaded issue. The facts of the present case are readily distinguishable from Stamp v Stamp (Stamp)[8] which concerned an application to set aside consent orders on the basis that the respondent had a mental disability at the time of the making of the consent orders. The Court held that the wife, having raised the issue of her capacity to provide proper instructions, had acted inconsistently with the maintenance of her claim for privilege over the file of her former solicitors. In Stamp, there was a direct nexus between an issue for determination by the Court, namely the capacity to provide instructions for consent orders, and the maintenance of a claim for privilege.
[8](2007) 37 Fam LR 235.
Also distinguishable is the judgment of the New South Wales Supreme Court in Chaina v Presbyterian Church (NSW) Property Trust (No 9) (Chaina)[9] where the Court upheld a claim for waiver of privilege in circumstances where a plaintiff had put in issue his mental and emotional capacity. Davies J held that maintenance of a claim for privilege was inconsistent with the fact that the plaintiff’s capacity to conduct business transactions and litigate constituted what was ‘probably the central issue in the litigation.’[10]
[9][2013] NSWSC 212.
[10]Ibid [8]-[21].
Unlike Stamp and Chaina there is:
(i)no nexus between any issue which falls for determination in this proceeding and Mr Irvin’s mental and/or physical capacity at the time of preparation of his outline of evidence; and
(ii)no inconsistency between the defendant’s conduct in putting in issue Mr Irvin’s capacity and the maintenance of the defendant’s claim for legal professional privilege in respect of documents relating to the preparation of Mr Irvin’s outline.
The plaintiffs’ application for production of the documents set out in paragraph 1(a)-(e) of the plaintiffs’ written outline is rejected.
I now turn to the second issue, namely the plaintiffs’ application pursuant to s 34 of the Evidence Act for production of any documents shown to Mr Irvin for the purpose of reviving his memory, whether shown before or after the preparation of his witness outline.
Paragraph 6(v) of an affidavit sworn by Janet Mary Vivienne Whiting on 2 March 2020 (2 March Whiting Affidavit) lists five privileged documents which were provided to Mr Irvin for the purpose of refreshing his memory. The affidavit also exhibits a list of 92 documents which were provided to Mr Irvin for the purpose of reviving his memory. Mr Dalton identified five documents in the list which are subject to claims for legal professional privilege by Bega. However, after the conclusion of the hearing on 3 March 2020, Gilbert + Tobin confirmed that three of the five documents were provided to Arnold Bloch Leibler during the course of the morning of 3 March 2020. The fourth document was provided to Mr Irvin in redacted form. As such, the plaintiffs’ application is pressed in respect of the five documents listed in paragraph 6(v) and the mini chronology, undated. As the balance of the documents listed in exhibit JMW-1 to the 2 March Whiting Affidavit have already been made available to the plaintiffs there is no utility in ordering their production.
The defendant submits that the Court has no power to order the production of the documents. Alternatively it submits that as a matter of discretion the Court should refrain from ordering production of the documents.
Section 122(6) of the Evidence Act 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 or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
Mr Davis QC who appeared with Ms Teo for the defendants submitted that s 122(6) only permits the adducing of evidence of a document that a witness has used to revive memory in circumstances where the witness has been called by the party benefitting from the privilege. I reject this submission. There is nothing in the text of s 122(6) which justifies the conclusion that the ‘witness’ referred to therein is limited to a witness called by the party benefitting from the privilege claimed. Further, I reject Mr Davis’ submission that the judgment of Lindgren J in MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2)[11] is authority for the proposition that ‘witness’ in s 122(6) is confined to a witness called by a party benefitting from the privilege claimed. His Honour’s reference to a witness ‘called to give evidence by the party benefitted by the privilege’ is not a statement of principle which confines loss of legal professional privilege where a witness refreshes his/her memory to circumstances where the witness is called by a party benefitting from the privilege. Rather, his Honour’s statement simply reflects the facts of the case before him in which the witness whose memory had been refreshed had been called by party claiming the benefit of the privilege.
[11](1996) 61 FCR 236 at 237.
Bega submits in the alternative that the power to order production of documents under s 34 is discretionary and that the Court should decline to exercise its discretion. In support of this proposition it cited Spalding v Radio Canberra Pty Ltd[12] and Mancorp Pty Ltd v Baulderstone Pty Ltd.[13]I accept the submission that the power conferred by s 34 is discretionary. It does not automatically follow that where a witness refreshes his/her memory from a document which is privileged, that an order shall be made for production of a document. Nevertheless, I have concluded that the defendant should produce the six documents which are subject to claims for privilege which were provided to Mr Irvin for the purpose of refreshing his memory.
[12](2009) 166 ACTR 14 at [70].
[13](1991) 57 SASR 87, 95.
Considerations of fairness weigh in favour of the documents being made available to Fonterra.[14] In particular, Fonterra should have access to all of the documents used by Mr Irvin to refresh his memory to provide it with a proper opportunity to test the veracity of Mr Irvin’s evidence.
[14]Cf Spalding v Radio Canberra Pty Ltd (2009) 3 ACTLR 105, 125 at [74].
Mr Davis submitted that the fact that Mr Irvin has been called to give evidence by Fonterra is a matter which weighs against an order for production of documents. In particular, he submitted that an order for production should not be made in circumstances where Fonterra, having called Mr Irvin, is not the beneficiary of the privilege in the documents the subject of the application for production.[15] I reject this submission. Bega filed an outline of evidence of Mr Irvin on 13 September 2019. For the purpose of preparing that outline Bega disclosed to Mr Irvin privileged documents for the purpose of refreshing his memory. I do not consider the fact that Mr Irvin has been called to give evidence by Mr Fonterra overrides the considerations of fairness which support an order for production.
[15]Transcript of proceedings, 3 March 2020 at T 2496.
I propose to order as follows:
(i)The plaintiffs’ application for production of the documents specified in paragraph 1(a)-(e) of the plaintiffs’ outline of submission filed 26 February 2020, is dismissed; and
(ii)The defendant is ordered to produce to the plaintiffs the following documents in unredacted form:
(a)the documents listed in paragraph 6(v) of the affidavit of Janet Mary Vivienne Whiting sworn 2 March 2020; and
(b)the mini-chronology, undated, listed in Exhibit JMW-1 to the affidavit of Janet Mary Vivienne Whiting sworn 2 March 2020.
I shall provide the parties with an opportunity to make submissions on costs. However, as each party has had a measure of success, it may be appropriate that the costs of and incidental to the application heard 3 March 2020 be costs in the cause.
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