PRACTICE AND PROCEDURE – Legal professional privilege – Legal principles applied – No necessity to identify Third Parties communicated with – Solicitor’s memorandum of costs and time ledger – Crime/Fraud exception - Inspection of documents for the purpose of determining the question – Ruling sustaining privilege in relation to some documents and rejecting privilege in relation to others in a redacted form – Rule 29.13 of the Supreme Court (General Civil Procedure) Rules 2005 - Evidence Act 2008 (Vic) ss.118, 119 and 133.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff (9420 of 2004)
Mr C Gunst QC with Mr P Booth of counsel
A.J. Macken & Co
For the Defendant (9420 of 2004)
Mr WT Houghton QC with Dr SB McNicol and Mr G Fitzgerald of counsel
Corrs Chambers Westgarth
For the Plaintiffs (8181 of 2007)
Mr WT Houghton QC with Dr SB McNicol and Mr G Fitzgerald of counsel
Corrs Chambers Westgarth
The First Defendant (8181 of 2007)
Mr T Barnes appeared in person
The Second–Fourth Defendants (8181 of 2007)
Mr SJ Maiden of counsel
Mills Oakley
The Fifth Defendant (8181 of 2007)
Mr Sangster appeared in person
The Sixth–Seventh Defendants (8181 of 2007)
Mr M Champion of counsel
Mr David Shaw
AJ Macken and Co (a non-party to the proceeding (8181 of 2007)
Ms R Doyle SC with Dr O Bigos of counsel
A.J. Macken and Co.
HIS HONOUR:
Introduction
In proceeding 8181 of 2007 (the “Barnes proceeding”) the firm of solicitors A J Macken & Co was served with a summons dated 9 December 2010, and the affidavit of Janet Whiting dated 9 December 2010 filed by the plaintiffs in that proceeding (the “Amcor parties”) seeking non-party discovery of seven categories of documents.
The Amcor summons sought the following documents from A J Macken & Co:
1)Within 14 days of the date of these orders, AJ Macken & Co make non-party discovery to the Plaintiffs on the following documents, or copies of such documents, in its possession, custody or power:
(a)All documents relation to the ownership of the Service Packaging Business (as that term is defined in the Third Further Amended Statement of Claim) from 1 February 2002 to 30 March 2007, including but not limited to ownership of interests in G5 Investments Pty Ltd and in Service Packaging Pty Ltd;
(b)All documents relating to any proposed sale of the Service Packaging Business by Mr Ian Hottes, Mrs Marlene Hottes and/or the…
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
AGLC
Hodgson v Amcor Ltd (No 2) [2011] VSC 204
Case
[2011] VSC 204
Decision Date
CaseChat Overview and Summary
The case of Hodgson v Amcor Ltd (No 2) involved the plaintiff, Hodgson, seeking discovery of certain documents from the defendant, Amcor Ltd, in the context of a larger litigation matter. The specific dispute centred around the issue of legal professional privilege and whether certain documents should be disclosed. The matter was heard in the Supreme Court of Victoria.
The primary legal issue for the court to determine was the extent of the privilege that applied to the documents in question. Specifically, the court needed to decide whether certain documents, including a solicitor's memorandum of costs and a time ledger, were protected by legal professional privilege. Additionally, the court had to consider whether the crime/fraud exception applied to any of the documents, potentially overriding the privilege. The case hinged on the application of the Evidence Act 2008 (Vic) and the relevant rules of procedure, particularly Rule 29.13 of the Supreme Court (General Civil Procedure) Rules 2005.
The court examined the nature of the documents and the circumstances surrounding their creation. It ruled that some documents were protected by legal professional privilege, and thus, could not be disclosed. However, the court also found that other documents did not qualify for privilege and should be disclosed. The ruling allowed for the inspection of the documents to determine their privileged status, while ensuring that the inspection did not breach the privilege. The court applied the provisions of the Evidence Act 2008 (Vic) to balance the need for disclosure in the interests of justice against the protection of legal professional privilege.
The final orders of the court sustained the privilege in relation to certain documents, while rejecting privilege for others, with those to be disclosed being provided in a redacted form to protect any potentially privileged information. The court's decision underscored the importance of carefully assessing each document's status under the law to ensure a fair and balanced outcome in the litigation.