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Matthews v SPI Electricity Pty Ltd

Matthews v SPI Electricity Pty Ltd

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Case Copied 15 August 2013 34 min read

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

SCI 2009 04788

BETWEEN:

CAROL ANN MATTHEWS	Plaintiff
v
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
v
ACN 060 674 580 & ORS (according to the schedule of parties)	Defendants by Counterclaim

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2013
DATE OF JUDGMENT:	15 August 2013
CASE MAY BE CITED AS:	Matthews v SPI Electricity Pty Ltd & Ors (No 6)
MEDIUM NEUTRAL CITATION:	[2013] VSC 422

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PRACTICE AND PROCEDURE – Call for production of documents in the course of cross‑examination at trial – Whether documents within the call – Whether documents produced the subject of client legal privilege – Dominant purpose test – Whether leave to cross‑examine deponent should be granted – Leave granted on limited basis – rule 40.04 of the Supreme Court (General Civil Procedure) Rules 2005 - Evidence Act 2008 (Vic) ss 45, 118, 119 and 131A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr AJ Keogh SC with Ms M Szydzik	Maurice Blackburn Lawyers
For the First Defendant	Mr DJ Farrands	Herbert Smith Freehills

HIS HONOUR:

Introduction

The trial of this proceeding is presently before J Forrest J and has been running now since March of this year.

By order made on 2 August 2013 J Forrest J referred to me for determination the following two questions:

(a) Whether the following documents:

(i) numbered 460 in the 29 July 2011 affidavit of Susan Elizabeth Taylor (“the Baillee email”)[1]; and
[1]SPN.730.002.0071.

(ii) numbered 2011-264 in the 30 March 2012 list of documents (“the Clark/Walley reports”),

are required to be produced by SPI [the first defendant] pursuant to the application of the plaintiff of 1 August 2013;

(b) if yes to any part of (a) then which (if any) of those documents are the subject of legal profession privilege.

The matter came before me on Monday 5 August 2013, at which time directions were made for the filing and service of affidavits to bring the matter before me on Friday, 9 August 2013. It also emerged that the document referred to in paragraph 2(a)(i) above was misdescribed. It is common ground that it should have been specified as document numbered 452.

Summary of Conclusions

For the reasons which follow, I have concluded that:

(a) the Baillie email and the Clark/Walley reports are required to be produced pursuant to the plaintiff’s application of 1 August 2013 (“the Call”); and

(b) all of those documents are subject to client legal privilege.

Background

I have now delivered five judgments in matters referred to me by J Forrest J in this proceeding,[2] and I will not repeat the background that explains the claims and defences and the subject matter of the proceedings, save to say that it is a…

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: [2013] VSC 422
Decision Date: 15 August 2013

CaseChat Overview and Summary

Matthews brought proceedings against SPI Electricity, alleging negligence in the maintenance of electrical equipment that resulted in personal injury. During cross-examination at trial, Matthews sought to call for the production of documents that were referenced by a witness, SPI Electricity's employee, in their evidence-in-chief. SPI Electricity objected, arguing that the documents were subject to client legal privilege and were not discoverable. The court was required to determine whether the documents were within the scope of the call for production, and if they were, whether they were protected by client legal privilege.

The court considered the application of the dominant purpose test to determine whether the documents were subject to legal privilege. It was found that the documents were prepared in the course of legal advice and were primarily for the purpose of obtaining legal advice. However, the court also considered whether the documents were relevant to the issues in the case and whether their probative value outweighed any prejudice to the opponent. The court granted leave for the documents to be produced on a limited basis, subject to redactions and restrictions on their use, to ensure that the privilege was not breached.

The court's decision was based on a careful consideration of the relevant legal principles and the facts of the case. It was found that the documents were relevant to the issues in the case and that their probative value outweighed any prejudice to the opponent. The court also considered the need to ensure that the privilege was not breached and that the documents were only used for the limited purpose of cross-examination.

The court granted leave for the documents to be produced on a limited basis, subject to redactions and restrictions on their use. The documents were to be redacted to remove any information that was not relevant to the issues in the case and that could potentially breach the legal privilege. The court also restricted the use of the documents to the limited purpose of cross-examination and prohibited their use for any other purpose, including as evidence in chief or in any other proceedings.

Orders