MA v Qin - [2023] VSC 598

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2020 00694

BETWEEN:

HUAISHENG MA	Plaintiff
v
RUIBIN QIN & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2023
DATE OF RULING:	9 October 2023
CASE MAY BE CITED AS:	Ma v Qin
MEDIUM NEUTRAL CITATION:	[2023] VSC 598

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PRACTICE AND PROCEDURE – Production and inspection – Evidence Act 2008 (Vic) ss 118, 119, 124 (‘Evidence Act’) – Legal advice privilege – Litigation privilege – Joint client exception – Whether common interest existed – Great Southern Managers Australia Ltd (in liq) v Clarke (2012) 36 VR 308 applied – Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302 applied – Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 applied – Hallett v Endeavour Industries Ltd [2016] NSWSC 886 applied – Held, joint interest existed – Held, necessary for the Court to inspect documents pursuant to s 133 of the Evidence Act to determine which documents are privileged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Clarke, of counsel	Norton Rose Fulbright
For the First and Second Defendants	Mr D McAloon, of counsel	B2B Lawyers

TABLE OF CONTENTS

Background......................................................................................................................................... 2

Legal principles.................................................................................................................................. 2

Plaintiff’s submissions..................................................................................................................... 6

The Qin defendants’ submissions.................................................................................................. 9

Consideration.................................................................................................................................... 11

HIS HONOUR:

By summons dated 24 March 2023, the plaintiff (‘Mr Ma’) applied for orders for the first defendant (‘Mr Qin’) and second defendant (‘Qin Group’) (collectively, the ‘Qin defendants’) to provide inspection to Mr Ma of:

(a) the documents listed in pts 2 and 3 of sch 1 of the Qin defendants’ amended second list of documents dated 17 February 2023; and

(b) the documents listed in pt 2 of sch 1 of the Qin defendants’ third list of documents dated 10 March 2023.

The documents cover the period May 2013 to May 2016. The Qin defendants claim client legal privilege over these documents on the bases that they are:

(a) confidential communications to or from B2B Lawyers (‘B2B’), the Qin defendants’ lawyers, in relation to legal advice; or

(b) documents prepared by B2B for the purpose of giving legal advice.

Mr Ma relies on:

(a) affidavits of Peter Edmund Cash affirmed on 24 March 2023, 26 May 2023 and 7 June 2023;

(b) the affidavit of Huaisheng Ma affirmed on 11 April 2023; and

(c) a written outline of submissions filed on 9 June 2023.

The Qin defendants rely on:

(a) the affidavit of David Lurie sworn on 27 April 2023;

(b) the affidavit of Ruibin Qin sworn on 2 May 2023; and

(c) a written outline of submissions filed on 23 June 2023.

Background

In this proceeding, Mr Ma alleges that he entered into a joint venture with Mr Qin for the construction of high rise buildings. Mr Ma alleges that the agreement ultimately entered was between him…

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.

Continue reading MA v Qin

Details

AGLC: MA v Qin [2023] VSC 598
Case: [2023] VSC 598
Decision Date: 9 October 2023

CaseChat Overview and Summary

In the case of MA v Qin, the dispute revolves around the production and inspection of documents, specifically in relation to legal advice privilege and litigation privilege under the Evidence Act 2008 (Vic). The matter was heard in the Supreme Court of Victoria. The plaintiff sought an order for the defendant to produce documents for inspection, which the defendant objected to, citing legal advice privilege and litigation privilege.

The central legal issues the court needed to address were whether a common interest existed between the parties, thereby invoking the joint client exception, and whether it was necessary for the court to inspect the documents under section 133 of the Evidence Act to determine which documents were privileged. The court considered previous cases such as Great Southern Managers Australia Ltd (in liq) v Clarke, Tabcorp Holdings Ltd v State of Victoria, Farrow Mortgage Services Pty Ltd (in liq) v Webb, and Hallett v Endeavour Industries Ltd in reaching its decision.

The court concluded that a joint interest did exist between the parties, applying the joint client exception as outlined in the precedent cases. It determined that the necessity of inspecting the documents to ascertain which ones were privileged outweighed the potential harm of disclosure. Consequently, the court ordered the production of the documents for inspection, ensuring that the inspection was conducted in a manner that protected the privileged information. This ruling underscores the importance of a thorough inspection process to balance the rights of parties while maintaining the integrity of legal privilege.

Orders