Matthews v SPI Electricity Pty Ltd (No 4) - [2013] VSC 237

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

SCI 2009 4788

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
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:	6 May 2013
DATE OF JUDGMENT:	8 May 2013
CASE MAY BE CITED AS:	Matthews v SPI Electricity Pty Ltd & anor (No 4)
MEDIUM NEUTRAL CITATION:	[2013] VSC 237

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PRACTICE and PROCEDURE - inspection of subpoenaed documents - 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 privileged documents subpoenaed from experts – documents produced with redactions – redactions record privileged conversations between expert and legal advisors of first defendant – whether notes redacted influencing or underpinning expert reports – whether privileged waived –- ss. 119, 122(2) and 126 Evidence Act 2008.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Ms Melanie Szydzik

Maurice Blackburn Lawyers

For the Defendant

Mr B F Quinn SC with

Mr Charles O Parkinson

Herbert Smith Freehills

HIS HONOUR:

Introduction

On 13 February 2013 I delivered reasons in an application by the plaintiff for orders that the first defendant (“SPI”) produce for inspection certain specific discovered documents in respect of which SPI claimed client legal privilege (“privilege”). The plaintiff contended 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.
This application concerns similar claims by the plaintiff to inspect documents the subject of subpoenas directed to the companies through which Mr Vazey and Dr Barter were engaged by SPI.

Background facts and matters[1]

[1]The background to this decision is the subject of a joint memorandum of counsel for the plaintiff and SPI.

By Orders dated 26 March 2013 (amended on 15 April 2013), J Forrest J prescribed a process by which the plaintiff issued subpoenas for the production of documents addressed, inter alia, to AADI Defence Pty Ltd (the company through which Dr Barter was engaged) and to BMT WBM Pty Ltd (the company through which Mr Vasey was engaged) and by which SPI could inspect documents returned in answer to the subpoenas and seek orders objecting to their production to other parties.
By summons dated 22 April 2013 (the “Summons”), SPI sought orders which had the effect of restricting all parties other than SPI from inspecting 1,680 of the subpoenaed documents produced by BMT WBM Pty Ltd (“the Summons documents”). SPI did not object to other parties inspecting the subpoenaed documents produced by…

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 237
Decision Date: 8 May 2013

CaseChat Overview and Summary

Matthews v SPI Electricity Pty Ltd (No 4) is a case that came before the court concerning the inspection of subpoenaed documents, specifically expert reports, and the application of client legal privilege. The matter involved a dispute between the parties regarding the production and inspection of documents that were claimed to be privileged. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the documents in question, which were expert reports, were subject to client legal privilege and thus exempt from disclosure and inspection. The court needed to determine if the waiver of privilege in the expert reports extended to the entire document or if it was limited to specific sections. Additionally, the court had to decide whether the redactions in the documents were sufficient to protect the privileged information or if the redacted content was influencing or underpinning the expert reports.

In reaching its decision, the court examined the nature of the expert reports and the circumstances surrounding their creation and use. It considered the express waiver of privilege in the expert reports and whether this waiver extended to all parts of the documents, including the redacted sections. The court found that the redacted content was integral to the expert reports, indicating that the privilege had indeed been waived. Consequently, the court ruled that the documents could be inspected, subject to the redactions that were made to protect the privileged conversations between the expert and the legal advisors of the first defendant. The court's decision was grounded in the provisions of sections 119, 122(2), and 126 of the Evidence Act 2008.

The court ordered that the documents be produced for inspection, with specific redactions to safeguard the privileged information. This ruling ensured that the party seeking the documents could fulfil its obligations under the court's subpoena, while also protecting the confidentiality of the privileged communications.

Orders