Hanks v Johnston (No 3)

[2016] VSC 629

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2015 03372

PAUL HANKS	Plaintiff
v
STUART NEILE JOHNSTON	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12, 19, 26 AUGUST 2016
DATE OF JUDGMENT:	21 OCTOBER 2016
CASE MAY BE CITED AS:	HANKS v JOHNSTON (No 3)
MEDIUM NEUTRAL CITATION:	[2016] VSC 629

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PRACTICE AND PROCEDURE – Discovery – Reasonable search obligation – Whether backup within power – Text messages deleted from smart phone devices since lost or replaced – Backup of text messages stored in plaintiff’s Apple iCloud account – Additional specialist software required to access Apple iCloud account for text message backup – No criticism of plaintiff’s search effort – Plaintiff’s discovery obligation expanded to include search using specialist software at defendant’s expense for text message backup – No obligation to search for deleted messages on current device – Civil Procedure Act 2010 (Vic), s 55; Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 29.08, 29.11.

PRACTICE AND PROCEDURE – Discovery – Legal professional privilege – Whether privilege lost by waiver – Where emails to a party’s solicitor copied to third parties – Whether common interest established – Application of inconsistency test – Third party did not share sufficient common interest with plaintiff – Evidence Act 2008 (Vic), s 122(5).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D P Gilbertson QC with Ms S C Bailey	HWL Ebsworth Lawyers
For the Defendant	Mr A Anderson	DLA Piper Australia

HIS HONOUR:

Introduction

1. The plaintiff in this proceeding is the President of the Parents’ Association (‘PSPA’) of the Peninsula School, located in Mount Eliza on the Mornington Peninsula. The defendant is the Principal of the Peninsula School. The plaintiff sues for damages for defamation arising from a letter sent by the defendant to parents of children attending the Peninsula School dated 20 May 2015, from which various defamatory imputations are said to arise.

1. The defendant applied for orders for further discovery pursuant to rule 29.08 and/or 29.11 of the Supreme Court (General Civil Procedure) Rules 2015, or alternatively, s 55 of the Civil Procedure Act 2010 and for inspection of documents said to be privileged. In particular, the defendant sought provision of:

(a)        Discovery of ‘back ups’ of the plaintiff’s text messages, variously between himself and other persons including, but not limited to, Wayne Murray, Peter Holland, Simon Hewitson and Reagan Barry, identified in paragraph 2 of Schedule 2 of the plaintiff’s affidavit of documents dated 14 June 2016; and

(b)        Inspection of documents over which client legal privilege was claimed by Schedule 1, Part 2 of the plaintiff’s affidavit of documents dated 14 June 2016.[1]

[1]Issues about a third category of documents, described as correspondence or documents from the plaintiff distributing or publishing a document described as ‘Audio recording of meeting between Stuart Johnston, Paul Hanks and Kylie Maher’ made on 25 February 2015 was resolved between the parties during the course…