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Malone v La Playa Nominees Pty Ltd

Malone v La Playa Nominees Pty Ltd

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Case Copied 19 May 2021 41 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 00285

RAYMOND MCGREGOR MALONE	Plaintiff
v
LA PLAYA NOMINEES PTY LTD (ACN 071 767 863)	First Defendant
and
THE REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 April 2021
DATE OF RULING:	19 May 2021
CASE MAY BE CITED AS:	Malone v La Playa Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 271

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PRACTICE AND PROCEDURE – Objection to subpoena – Legal professional privilege – Litigation privilege – Common law principles – Dominant purpose – Emails and their attachments between expert and solicitor subpoenaed from expert – Where expert also a lay witness - Claim to privilege largely upheld - Waiver not established, save for a small number of documents – Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 – Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 – Matthews v SPI Electricity Pty Ltd & Ors [2013] VSC 33.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mitchell	T Squared Legal
For the First Defendant	Mr A Herskope	Kalus Kenny Intelex

HER HONOUR:

Introduction

This decision concerns an objection by the plaintiff, Raymond McGregor Malone, to a subpoena filed on 16 November 2020 by the first defendant, La Playa Nominees Pty Ltd, addressed to Angelo Racovalis (‘Subpoena’). Mr Racovalis has provided an expert report dated 15 October 2020 to the plaintiff, which was filed on 16 October 2020 (‘Racovalis Report’). In addition, an outline of evidence which Mr Racovalis is expected to give as a lay witness, dated 16 October 2020, has also been filed (‘Racovalis Outline’).

By the Subpoena, the first defendant sought three categories of documents, only one of which it now presses. That category of documents is as follows (‘Documents’):

All correspondence including emails and attachments to such emails between solicitors at the law firm Nicholson Ryan and you from 1 November, 2017 to date relating to the property at 6 Shandford Avenue Brighton (No 6) or the property at 8 Shandford Avenue Brighton (No 8).

Mr Racovalis produced copies of the Documents to the Prothonotary. On 17 December 2020, the plaintiff lodged a notice of objection to the Subpoena with the Prothonotary, objecting to the Subpoena, primarily on the grounds of legal professional privilege. Subsequently, I made directions by consent between the parties, giving leave to the plaintiff to inspect the Documents and uplift them for copying, for the plaintiff to file and serve a list of documents over which privilege is claimed and the grounds of the claimed privilege (‘Disputed Documents List’),[1] for the plaintiff to deliver to the first defendant copies of documents which were not disputed, and for both parties to file and serve affidavits and outlines of submissions, with the Objection to be heard on 8 April 2021.[2]
[1]Each of 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

Case: [2021] VSC 271
Decision Date: 19 May 2021

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Malone v La Playa Nominees Pty Ltd was presented. The dispute revolved around a subpoena duces tecum issued to an expert witness, who was also a lay witness, to produce emails and their attachments between the expert and the solicitor. The defendant sought to object to the subpoena, arguing that the communications were protected by legal professional privilege and litigation privilege. The court was tasked with determining whether the claimed privileges applied and if any waiver had occurred.

The legal issues at hand involved the applicability of legal professional privilege and litigation privilege to the subpoenaed communications, as well as the question of whether there had been any waiver of these privileges. The court had to examine the dominant purpose test to ascertain whether the communications were made for the purpose of giving or obtaining legal advice or for the purpose of litigation. The court also needed to consider the cases of Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4), Australian Securities and Investments Commission v Southcorp Ltd, and Matthews v SPI Electricity Pty Ltd & Ors to guide its decision.

The Federal Court found that the claim to privilege was largely upheld. The court determined that the dominant purpose of the communications was to give and receive legal advice or for the purpose of litigation, thus qualifying for legal professional privilege and litigation privilege. However, the court also found that a small number of documents had been waived by the expert through their use in the preparation of evidence. Consequently, the court ruled that the subpoena should be amended to exclude the privileged documents, while allowing the production of the non-privileged ones. This decision ensures that the expert's communications are protected, except where a waiver has clearly occurred.

Orders