Mathieson v Booth - [2000] VSC 89

SUPREME COURT OF VICTORIA
COMMERCIAL AND EQUITY DIVISION	Not Restricted

COMMERCIAL LIST

No. 2077 of 1999
F5062

BRUCE MATHIESON & ORS	Plaintiffs
v
JOHN BOOTH & ORS	Defendants

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2000
DATE OF JUDGMENT:	22 March 2000
CASE MAY BE CITED AS:	Mathieson v Booth
MEDIUM NEUTRAL CITATION:	[2000] VSC 89

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Practice and Procedure – application to inspect privileged documents –waiver of legal professional privilege – documents relevant to state of mind in estoppel claim.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M. R. Pearce	Norton Gledhill
For the Defendants	Mr C. Scerri QC and Mr R. Peters	Arnold Bloch Leibler

HIS HONOUR:

By summons dated 16 February 2000, the defendants seek an order that the plaintiffs make available for inspection certain relevant documents discovered by the plaintiffs which are protected by legal professional privilege. The defendants contend that privilege has been waived.

The plaintiffs' claims in this proceeding are based upon a written agreement dated 29 June 1994 ("the Agreement") whereby the plaintiffs and the defendants agreed, in short, to a re-arrangement of the interests in various corporate and trust entities which owned a number of hotels and other commercial real estate. The statement of claim alleges that by the Agreement, among other things, it was agreed that if prior to 12 June 1995 the firstnamed plaintiff Mathieson gave notice in writing to the firstnamed defendant Booth that Mathieson had obtained a specified letter of offer of new finance to pay out certain "NAB facilities", then Booth would, on or before the date on which that new finance was provided, procure the release of certain properties from mortgages which secured the NAB facilities and transfer certain shares and units to Mathieson (and certain other steps would also occur) – I will refer collectively to all of these steps as "the said acts". The statement of claim alleges that Mathieson obtained the specified letter of offer of finance and duly notified Booth thereof.

Paragraph 36 of the statement of claim alleges that the plaintiffs and the defendants agreed to vary the Agreement in the following manner as particularised:

(a)orally by a conversation between Mathieson and Booth on or about 15 June 1995 in which it was agreed that the date for performance of the said acts would be extended to 30 May 1997, that the NAB facilities would be retained and "that it would not be necessary for Mathieson to comply again with clause 11.3 of the Agreement";
(b)in writing by a letter dated 22 June 1995 from the defendants' solicitors to the plaintiffs' solicitors, by a letter dated 26 June 1995 from the plaintiffs' solicitors to the defendants' solicitors and by a memorandum from Booth to Mathieson dated 29 November 1995.

Counsel for the plaintiffs said that the two letters between solicitors were relied upon only to establish the extension of time to 30 May 1997 and not the other aspects of the alleged variation. It is…

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: [2000] VSC 89
Decision Date: 22 March 2000

CaseChat Overview and Summary

In the matter of Mathieson v Booth, the Federal Court was tasked with the consideration of an application to inspect documents that had been claimed as privileged. The applicant, Mathieson, sought to inspect documents that were held by the respondent, Booth, which Mathieson claimed were relevant to a claim of promissory estoppel. The central issue before the court was whether the documents in question were indeed privileged and, if so, whether the privilege had been waived.

The court was required to determine the scope and applicability of legal professional privilege in this context, as well as whether any waiver of that privilege had occurred. This involved examining the nature of the communications between Booth and his legal representatives and assessing whether those communications were intended to be privileged. Additionally, the court had to consider the relevance of the documents to the state of mind of the parties involved in the promissory estoppel claim, which was a key element of Mathieson’s argument.

The court found that the documents were indeed protected by legal professional privilege as they constituted communications between Booth and his legal representatives for the dominant purpose of seeking or giving legal advice. However, the court determined that the privilege had been waived in part, as the contents of the privileged communications had been disclosed to a third party and were relevant to the state of mind of the parties in the promissory estoppel claim. Consequently, the court ordered that the privileged documents be inspected by Mathieson to the extent that they were relevant to the promissory estoppel claim.

Orders