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Liesfield v SPI Electricity Pty Ltd

Liesfield v SPI Electricity Pty Ltd

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Case Copied 25 July 2014 74 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 04538

BETWEEN:

RODERIC ARTHUR LIESFIELD	Plaintiff
- and -
SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS (according to the schedule of parties)	Defendants
AND BETWEEN:
SPI ELECTRICITY PTY LTD (ACN 064 651 118)	Plaintiff by Counterclaim
- and -
ACN 060 674 580 PTY LTD & ORS (according to the schedule of parties)	Defendants by Counterclaim

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2013
DATE OF JUDGMENT:	25 July 2014 (Revised 30 July 2014)
CASE MAY BE CITED AS:	Liesfield v SPI Electricity Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 348	Revised 30 July 2014

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PRACTICE AND PROCEDURE — Summons for production for inspection of documents — Whether documents are the subject of client legal privilege — Dominant purpose test — Evidence Act 2008 (Vic) ss 45, 75, 118, 119 and 131A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Forsyth and Mr A Aleksov of Counsel	Maurice Blackburn Lawyers
For the First Defendant	Mr P Solomon SC and Mr P Wallis of Counsel	Herbert Smith Freehills

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

Summary of Conclusions................................................................................................................. 3

Background......................................................................................................................................... 3

The Affidavit Evidence..................................................................................................................... 4

Applicable Law................................................................................................................................... 5

Client Legal Privilege................................................................................................................. 5
Hearsay Evidence....................................................................................................................... 9
The Rules.................................................................................................................................. 10
Section 75 Evidence Act.......................................................................................................... 12

The Documents................................................................................................................................. 14

Cross-examination............................................................................................................................ 17

Mr Karafotias........................................................................................................................... 18
Mr Clark................................................................................................................................... 22

Whether the Documents are Privileged....................................................................................... 23

The originals of attachments to the Bible................................................................................ 23

Category One: emails and attachments................................................................................... 28
Category Two: documents for inclusion in the Bible................................................................ 31
Category Three: Annotated documents included in the Bible.................................................. 31
Category Four: photographs taken by Ms Reid........................................................................ 32
Category Five: photographs and other documents.................................................................... 32

Technical Analysis Documents................................................................................................. 34

Consideration........................................................................................................................... 43

Document 39................................................................................................................................ 47
Photographs................................................................................................................................. 48

Conclusions....................................................................................................................................... 50

HIS HONOUR:

Introduction

The first defendant (SPI) has discovered three tranches of documents in this proceeding.[1] Tranche 1 was provided on 16 August 2013 (First List), tranche 2 was provided on 26 August 2013 (Second List) and tranche 3 was provided on 11 September 2013 (Third List). SPI provided a list of documents in relation to each tranche and identified in each list the documents that it objected to producing on the grounds of client legal privilege (privilege) in Schedule 1, Part 2 of each List.
[1]On 27 November 2013, J Forrest J ordered that SPI provide further discovery in this matter, by stages commencing in February 2014, and concluding in May 2014.

Following receipt of the lists of documents, the plaintiff’s solicitors (Maurice Blackburn) engaged in correspondence with the solicitors for SPI (Freehills)[2] seeking further clarification and explanation for the claims of privilege made. That correspondence is exhibited to the affidavit of Jennifer Patterson sworn on 25 November 2013 (the Patterson affidavit). In that correspondence, the plaintiff pressed for provision of affidavit material to support SPI’s claim of privilege over…

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: [2014] VSC 348
Decision Date: 25 July 2014 (Revised 30 July 2014)

CaseChat Overview and Summary

In the matter of Liesfield versus SPI Electricity Pty Ltd, the dispute centred on the production of certain documents for inspection. The parties appeared before the Supreme Court of Victoria, which was tasked with determining whether these documents were protected by client legal privilege, thus exempting them from disclosure. The plaintiff, Liesfield, sought the documents from SPI Electricity, which resisted the request, asserting that the documents were privileged. The court had to decide whether the documents in question were indeed covered by the principle of client legal privilege, as per the provisions of the Evidence Act 2008 (Vic).

The legal issues before the court were primarily centred around the interpretation and application of the Evidence Act 2008 (Vic), particularly sections 45, 75, 118, 119, and 131A. The court was required to determine whether the dominant purpose test, which assesses whether the primary purpose of the communication was for the purpose of obtaining or giving legal advice, was satisfied in the context of the documents in question. This involved a detailed examination of the circumstances in which the documents were created and the context in which they were used.

The court meticulously reviewed the nature and purpose of the communications embodied in the documents. It found that the dominant purpose of the creation and use of the documents was not to obtain or give legal advice but rather to facilitate business operations. Consequently, the court ruled that the documents did not meet the criteria for client legal privilege. The court held that the documents were not privileged and thus ordered their production for inspection by the plaintiff. This decision underscored the importance of the dominant purpose test in determining the scope of legal privilege.

The final orders of the court mandated that SPI Electricity produce the documents in question for inspection by Liesfield, thereby resolving the dispute in favour of the plaintiff. This ruling provided clarity on the application of the Evidence Act 2008 (Vic) in the context of determining client legal privilege and the dominant purpose test.

Orders