| Send for Reporting | ||
| 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…
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- Case
- [2013] VSC 422
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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