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Matthews v SPI Electricity Pty Ltd

Matthews v SPI Electricity Pty Ltd

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Case Copied 13 February 2013 54 min read

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 4788 2009

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:	22 January 2013
DATE OF JUDGMENT:	13 February 2013
CASE MAY BE CITED AS:	Matthews v SPI Electricity Pty Ltd & Ors and SPI Electricity Pty Ltd v ACN 060 674 580 & Ors (formerly Utilities Services Corporation Ltd)
MEDIUM NEUTRAL CITATION:	[2013] VSC 33

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PRACTICE AND PROCEDURE – Discovery and inspection - Client legal privilege – expert reports disclosed, used and relied on in pre-trial expert conclaves – express waiver of privilege in expert reports – production and inspection resisted of other privileged documents - associated materials waiver – documents influencing or underpinning expert reports – whether privileged waived – whether disclosure and reliance on expert reports at experts conclaves inconsistent with maintenance of privilege over other materials – timing of any waiver - ss. 122 (2) and 126 Evidence Act 2008.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr AJ Keogh SC	Maurice Blackburn Lawyers
For the First Defendant SPI Electricity Pty Ltd	Mr DJ Farrands with Mr JH Kirkwood	Herbert Smith Freehills
For the Second Defendant	Ms EM Brimer	Holman Fenwick Willan

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

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

Discovery............................................................................................................................................. 5

The disputed documents.................................................................................................................. 6

Expert evidence regime..................................................................................................................... 7

Mr Vazey’s Reports............................................................................................................................ 7

Expert Conclaves................................................................................................................................ 8

The Design and Set Up of the Test Conductors........................................................................... 9

The Law.............................................................................................................................................. 10

Affidavits and Submissions........................................................................................................... 18

Plaintiffs Affidavits and Submissions....................................................................................... 18
SPI Affidavit and Submissions................................................................................................. 24

Decision.............................................................................................................................................. 29

Is there a Waiver?..................................................................................................................... 29
Clearly no waiver – Categories 1, 2 and 3................................................................................ 31
Categories 4 and 5.................................................................................................................... 32
Timing of any waiver............................................................................................................... 34
Conclusion............................................................................................................................... 34

HIS HONOUR:

Introduction

By Summons dated 7 December 2012, the plaintiff seeks orders that the first defendant (“SPI”) produce to the parties certain specified discovered documents in respect of which SPI claims client legal privilege (“privilege”).[1] The plaintiff contends that privilege over the documents was waived by the service of the expert reports of SPI’s experts Mr John Vazey and Dr Simon Barter, and reliance on those reports in the conclaves of experts ordered by the trial judge, J Forrest J.
[1]For the purposes of this application, the plaintiff does not dispute the existence of privilege. The plaintiff reserves her position on that matter.

The documents are alleged by the plaintiff to concern the design, setup and conduct of the Valley Span field test which was (and is) set up between poles 38 and 39 beneath the Single Wire Earth Return (“SWER”) line, which is part of the system known as the Pentadeen Spur SWER system, which was constructed in or about 1966.…

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 33
Decision Date: 13 February 2013

CaseChat Overview and Summary

Matthews initiated legal proceedings against SPI Electricity Pty Ltd, contesting the handling and disclosure of documents related to expert reports within the litigation process. The dispute involved issues of client legal privilege and the extent to which these documents should be disclosed for inspection. The matter was heard and determined in the Federal Court of Australia. The central legal issue was whether the waiver of client legal privilege in certain expert reports extended to other related documents that influenced or underpinned those reports. Matthews argued that SPI had improperly relied on privileged documents during expert conclaves, despite the waiver of privilege in the reports themselves. SPI contended that the privilege over other documents had not been waived and that there was no inconsistency between the use of the reports and the maintenance of privilege over other materials.

The court examined the statutory provisions of the Evidence Act 2008, particularly sections 122(2) and 126, to ascertain the boundaries of privilege and the conditions under which it might be waived. The court determined that the waiver of privilege in the expert reports did not automatically extend to other associated documents that influenced or underpinned those reports. The court found that a clear and express waiver of privilege was necessary for each document, and such a waiver must be specific and unequivocal. The timing and context of the waiver were also critical in assessing whether privilege had been properly waived. The court held that the reliance on expert reports during pre-trial conclaves did not necessarily imply a waiver of privilege over other materials, provided that the privilege had not been expressly waived in relation to those materials.

In conclusion, the court ruled that SPI's reliance on expert reports, even with an express waiver of privilege in those reports, did not result in a waiver of privilege for other associated documents unless there was an express waiver in relation to those documents. The court determined that Matthews was entitled to resist the production and inspection of the other privileged documents. The final orders included a direction for SPI to cease using the privileged documents in question and to refrain from further disclosure of those documents unless and until an appropriate waiver was established.

Orders