Gehrke v Noumi Limited - [2023] VSC 742

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
GROUP PROCEEDINGS LIST

S ECI 2020 04505

BETWEEN:

NICHOLAS JOHN GEHRKE & ANOR (according to the attached Schedule)	Plaintiffs
- and -
NOUMI LIMITED (FORMERLY FREEDOM FOODS GROUP LIMITED (ACN 002 814 235)) & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Steffensen AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 May 2023
DATE OF RULING:	12 December 2023
CASE MAY BE CITED AS:	Gehrke & Anor v Noumi Limited & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 742

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EVIDENCE — Privilege — Legal professional privilege — Evidence Act 2008 (Vic) ss 118 and 119 — Parts of evidence in support of privilege claim redacted on the grounds of privilege — Whether redacted evidence is privileged — Whether redacted evidence discloses content or substance of communications or documents over which privileged is claimed — Whether disclosure of redacted evidence will waive any privilege claimed — Majority of redactions held to be not privileged — Whether solicitor engagement correspondence is for the dominant purpose of providing legal advice or professional legal services in anticipated litigation — Solicitor engagement correspondence held to be not for dominant purpose — Solicitor engagement correspondence to be produced only with the scope and nature of legal advice and services sought or obtained redacted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	S McNicol KC with H Jager	Slater & Gordon Limited Phi Finney McDonald
For the First Defendant	R Craig KC with A McRobert	Arnold Bloch Leibler
For the Second Defendant	K Loxley	Corrs Chambers Westgarth

Contents

A.. Introduction

B... Noumi’s evidence

C.. Applicable principles

D.. Redactions to the body of Turner 7

D.1         Redactions of topics of legal advice
D.2         Redactions of directors’ concerns
D.3         Redactions of the substance of privileged communications and documents

E... Redactions to the Tab 1 Examples

E.1 Non-Category 10 Documents
E.2 Category 10 Documents

F... Redacted solicitor engagement correspondence

F.1          Noumi’s claim for privilege
F.2          Plaintiffs’ submissions
F.3          Consideration
F.4          Solicitor – client correspondence
F.5          Ashurst – PwC engagement letter

G.. Conclusion and next steps

G.1         Further revised Turner 7 & revised written submissions
G.2         Non-Category 10 documents
G.3         Category 10 Documents
G.4         Orders arising from this ruling

HER HONOUR:

A Introduction

The plaintiffs seek production of discovered documents over which the first defendant, Noumi, claims privilege. In support of its claim for privilege, Noumi relies upon the seventh affidavit of Julia Yvette Turner sworn on 31 March 2023 (‘Turner 7’). Noumi has redacted parts of Turner 7 and its exhibits on the grounds that the information contained therein is privileged under ss 118 and / or 119 of the Evidence Act 2008 (Vic). Noumi seeks the Court to have access to the redacted information in order to determine Noumi’s privilege claims, but otherwise seeks that the information not be disclosed to any other party. Noumi relies upon the eighth affidavit of Ms Turner in support of its claim for privilege in the redactions…

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: [2023] VSC 742
Decision Date: 12 December 2023

CaseChat Overview and Summary

In Gehrke v Noumi Limited, the dispute arose from a claim for unpaid wages and entitlements. The case was heard in the Supreme Court of Victoria. The central issue before the court was the extent to which legal professional privilege applied to certain redacted documents, and whether these redactions would waive any privilege claimed. The parties argued over the nature and purpose of communications between the plaintiff's solicitors and their client, particularly regarding whether these communications were for the dominant purpose of providing legal advice or professional legal services in anticipated litigation.

The court considered whether the redacted parts of the evidence were privileged and whether their disclosure would waive any privilege claimed. It was determined that the majority of the redactions were not privileged, as they did not disclose the content or substance of communications or documents over which privilege was claimed. The court also addressed whether the correspondence between the plaintiff's solicitors and the client was for the dominant purpose of providing legal advice or professional legal services in anticipated litigation. It was held that this correspondence was not for the dominant purpose of providing such advice or services, and therefore, the privilege did not apply to these communications. The court ruled that the solicitor engagement correspondence should be produced, but with the scope and nature of the legal advice and services sought or obtained redacted.

The final orders of the court were that the majority of the redactions were not privileged and should not be protected by legal professional privilege. The correspondence between the solicitors and the client was to be produced, with certain details redacted. This decision clarified the boundaries of legal professional privilege in the context of the dispute over unpaid wages and entitlements.

Orders