Matthews v SPI Electricity Pty Ltd (No 5)
[2013] VSC 285
•30 May 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. SCI 2009 04788
| 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: | 29 April 2013 | |
DATE OF JUDGMENT: | 30 May 2013 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity Pty Ltd & anor (No 5) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 285 | |
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PRACTICE AND PROCEDURE – Subpoena – Notice to Produce – objections to inspection of parts of funding agreements redacted – client legal privilege – whether reveals legal strategy expressly or by implication – no privilege in redacted parts of funding agreements.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F.K. Forsyth | Maurice Blackburn Lawyers |
| For the Defendant | Mr Philip H Solomon SC with Dr Charles O Parkinson | Herbert Smith Freehills |
| For the Jointly Represented Insurers (as set out in Attachment A) | Mr M Connock SC with | Ligeti Partners |
HIS HONOUR:
Introduction
These reasons concern the determination of objections made by the plaintiff to the inspection by the first defendant (“SPI”) of parts of funding agreements made between Maurice Blackburn Pty Ltd (“Maurice Blackburn”) and certain insurers of group member in this group or representative proceeding. The objections are based on the agreements being the subject of client legal privilege (“privilege”).
By summons filed on 16 April 2013, SPI applies pursuant to s 33ZF of the Supreme Court Act 1986 (Vic) or the inherent jurisdiction of the Court that group member insurers (defined in the Notice to Produce as encompassing 24 named insurers)
(“Group Member Insurers”) provide security to SPI for its costs in the proceeding in respect of third party disbursements incurred by it on and from 28 March 2013 to the conclusion of the trial of the common questions.
In the alternative, SPI applies pursuant to that section or the inherent jurisdiction for the plaintiff to provide security for costs in the same terms.
By order made on 15 April 2013, his Honour Justice J. Forrest referred the applications to me pursuant to Rule 77.05 of the Supreme Court (General Civil Procedure) Rules 2005.
The matter came before me for directions on 19 April 2013. At that time, I ordered that any subpoena for production of documents sought by SPI in order to advance their application for security for costs, and any notice to produce directed to the plaintiff, should be returnable on 29 April 2013.
A notice to produce to the plaintiff, and multiple subpoenas directed to Maurice Blackburn and to the insurers identified in an attachment to the order, were returned on 29 April 2013. Objections were received prior to inspection by SPI of documents produced pursuant to the subpoenas.
Background
On 24 January 2013, the Court made class closure orders (“Class Closure Orders”). Annexure F to the Class Closure Orders identified the names of 21 insurers of group members.
Following the Class Closure Orders, Herbert Smith Freehills (“HSF”), acting for SPI, corresponded with each of Maurice Blackburn, Hall & Wilcox, and Ligeti Partners in relation to those insurers seeking to know a number of matters thought to be relevant to an application for security for costs that SPI anticipated making against them. They were only partially successful in their enquiries, thus the subpoenas and Notice to Produce were issued.
The notice to produce directed to the plaintiff, sought the production of:
(a)documents evidencing an agreement between a Group Member Insurer to indemnify the plaintiff in respect of any adverse costs order in this proceeding; and
(b)documents evidencing an agreement by a Group Member Insurer to fund or otherwise meet any of the plaintiffs costs (legal fees, disbursements or any other costs) in respect of this proceeding.
The subpoena to Maurice Blackburn sought the same documents as were sought in the Notice to Produce.
The subpoenas to each Group Member Insurer sought the production of a similar range of documents, but was expressed to encompass agreements between the Group Member Insurer and the plaintiff or Maurice Blackburn. In addition, each subpoena to a Group Member Insurer sought the production of documents evidencing the total amount sought to be recovered by the Group Member Insurer in respect of claims paid to insured persons suffering loss as a result of the Kilmore-East bushfire.
Nothing was produced in response to the first category of documents referred to in paragraph 9(a). Two agreements were produced in response to the second category referred to in paragraph 9(b), both by the plaintiff and Maurice Blackburn, and by certain of the Group Member Insurers. Agreement was reached for the production of a table or list of the total amount sought to be recovered by the Group Member Insurers in respect of claims paid to insured persons suffering loss as a result of the Kilmore-East bushfire, rather than the production of documents relating to such claims.
The two agreements produced contain redactions. These agreements are:
(a)An agreement between Maurice Blackburn and Suncorp Group Limited and Ligeti Services Pty Ltd t/as Ligeti Partners dated 20 July 2011 (“the Ligeti Agreement”); and
(b)An agreement between Maurice Blackburn and Insurance Australia Group Limited, Commonwealth Insurance Limited, QBE Insurance (Australia Limited) and Hall and Wilcox dated 23 January 2012 (“the Hall and Wilcox Agreement”).
The Ligeti Agreement and the Hall and Wilcox Agreement (together, “the Insurer Agreements”) are both agreements pursuant to which various insurance companies that have made payments in respect of insurance claims lodged by certain group members in the proceeding agree to contribute to a percentage of the disbursements incurred by Maurice Blackburn in the proceeding. Some of the Group Member Insurers have also produced the Insurer Agreements containing the same redactions.
There are three types of clauses in each Insurer Agreement. First, mechanical provisions. Secondly, provisions dealing with the reimbursement of funding by Maurice Blackburn of disbursements. Thirdly, provisions dealing with ‘decision making’[1] and, it is asserted, strategy. In the case of the Hall and Wilcox Agreement, there is a further type of provision, which concerns what I will elliptically call a ‘practical provision’. The third type in each Agreement, and the fourth type in the Hall and Wilcox Agreement, are redacted. In the Ligeti Agreement the third type is in recital F, and clauses 2, 3 and 5(b). In the Hall and Wilcox Agreement, the third type is part of recital F, clauses 2, 3, 4 and 5 and the fourth type is clause s 10 and 11 and the heading before clause 10.
[1]This is the description given by Counsel for the plaintiff in her submissions at T53 29/4/2013.
Andrew John Watson, solicitor, a partner of Maurice Blackburn, swore an affidavit on 28 April 2013 in relation to both these Insurer Agreements. He signed them both on behalf of Maurice Blackburn and has been involved in implementing the arrangements set out in those agreements. He deposes that –
(a)the agreements were treated by each of the parties as confidential at the time they were entered into, and have been treated as confidential since that time;
(b)to his knowledge, the terms of the agreements have not been disclosed other than to the parties to the agreements;
(c)the agreements were prepared for the purpose of obtaining a financial contribution from various insurers to the disbursements incurred and paid by Maurice Blackburn in the proceeding to enable the plaintiff to be provided with professional legal services in this proceeding; and
(d)the plaintiff is prepared to waive any privilege relating to those portions of each of the agreements which relate to the nature of the arrangement between the parties and the financial contributions made to the plaintiff’s disbursements in the proceeding. Other than that, the plaintiff does not waive privilege in respect of any other portion of those agreements as those other portions have the potential to reveal aspects of the legal strategy of the plaintiff.
Some of the Group Member Insurers have also produced the same agreements. It is not relevant for present purposes to identify which of them have done so as each produces only the redacted versions on the basis that the plaintiff claims privilege in respect of the portions that have been redacted. In other words, it is the plaintiff’s privilege that is sought to be protected and not the Insurers’.
The redacted versions of the Insurer Agreements have been disclosed to SPI. There is an express waiver of those agreements to that extent. The issue is, therefore, whether the redacted portions of the Insurer Agreements are properly the subject of a claim of privilege.
I gave leave for Mr Watson to be cross-examined on his affidavit. There was no objection to this by the plaintiff or the representatives of the Group Member Insurers.
The burden of the cross-examination was to establish that the purpose of the entry into the Insurer Agreements was to provide financial assistance in this proceeding to Maurice Blackburn, as distinct from enabling the plaintiff to be provided with professional legal services by Maurice Blackburn in this proceeding.
So far as relevant to the question for my decision, that is whether the redacted portions of the two Insurer Agreements remained subject to privilege, I have distilled the following matters from the cross-examination as a whole:
(a)The production of the two Agreements in redacted form constituted an express waiver of the Agreements to the extent that they were unredacted;
(b)That the redacted portions have the potential to reveal the legal strategy of the plaintiff;
(c)Mrs Matthews has been a client of Maurice Blackburn since at least March 2011, when a conditional costs agreement was entered into between Maurice Blackburn and the plaintiff. It acts for the plaintiff on a ‘no win no fee’ basis. In fact, the plaintiff had been a client since some time after the commencement of the proceeding in 2009. Maurice Blackburn has had throughout the usual obligation to progress her claims with due care and skill and, since the beginning of the litigation for that purpose has engaged counsel and experts.
(d)By July 2011, when the Ligeti Agreement was entered into, Maurice Blackburn had incurred substantial disbursements – in respect of counsel, experts and other things. Under the ‘no win no fee’ agreement, the plaintiff does not incur liability for the disbursements as the matter proceeds, although if there is a successful outcome the plaintiff and the Group Members will incur a liability;
(e)At the time of entry into the Ligeti Agreement, it was anticipated that these disbursements would be very substantial into the future, more substantial than they had been up to that point;
(f)Whilst Maurice Blackburn continued to act for Mrs Matthews it was obliged to continue to incur very substantial disbursements on an ongoing basis;
(g)One consequence of entering into the Insurer Agreements was to provide for other persons to contribute to the disbursements and whilst Maurice Blackburn continued to represent the plaintiff that was a benefit to Maurice Blackburn;
(h)Since entry into the Hall and Wilcox Agreement in January 2012, Maurice Blackburn has received reimbursement for 100% of certain disbursements up to a cap set in the Hall and Wilcox Agreement, which is to the benefit of Maurice Blackburn; and
(i)Mr Watson rejected the proposition that the dominant purpose of entry into the Insurer Agreements was to provide financial assistance in this proceeding to Maurice Blackburn, as distinct from enabling the plaintiff to be provided with professional legal services by Maurice Blackburn .
Applicable Law
The Plaintiff and the Group Member Insurers (that is those who have also produced the Agreements) contend that the redacted portions of the Insurer Agreements are protected by s 119 of the Evidence Act 2008. Section 119 provides:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared-
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
There is no dispute that by virtue of s 131A of the Evidence Act, s 119 applies not only to the adducing of evidence but also to the production of documents pursuant to a subpoena or notice to produce. Priceline Pty Ltd v JHY Nominees Pty Ltd.[2]
[2][2010] VSC 61.
Pursuant to s 133 of the Evidence Act, the Court may order that a document be produced to it for the purpose of determining whether the document is privileged. At the invitation of the parties I took the opportunity to inspect the unredacted agreements. I should add in this context that the fact that the question concerns redactions to a document otherwise revealed, it appeared necessary that I see the whole document in order to decide the question.
There is authority for the proposition that litigation funding agreements can be protected by s 119 of the Evidence Act. Counsel for the plaintiff, Ms FK Forsyth, advanced the argument that even though the Agreements have been produced, and thereby the privilege in them expressly waived, nevertheless the redacted portions were still properly the subject of privilege as they revealed the litigant's likely legal strategy
She referred me to Re Global Medical Imaging Management Ltd (in liq)(“Global”)[3] In that case at issue was a litigation funding agreement between a liquidator and a third party funder. Santow J stated:
[6]At first blush, one might be inclined to treat a funding agreement as falling outside s119, being provided not for the dominant purpose of the provision of professional legal services but, rather, for a purpose anterior to their provision, namely, the funding thereof. Such a view would comport with the trend of a hardening judicial attitude to narrow the scope of the legal professional privilege; see the discussion of the cases cited in "Legal Professional Privilege in Australia" by Dr R J Desiatnik (Prospect, 1999) at 53 as reflected for example that it is not enough for a person merely to assert a claim for privilege (National Crime Authority v S (1991) 100 ALR 151 at 159 per Lockhart J). That trend of the general law as so interpreted is however not consistently reflected in its statutory counterpart. The Evidence Act 1995 to some extent widens its scope, notably by substituting the dominant purpose test for the sole purpose test, though the general law has now caught up; Esso Australia Resources Ltd v Commissioner of Taxation of the Cth of Australia (1999) 74 ALJR 339.
[7]But that first blush view is not the view that I would, on consideration adopt. To deny legal privilege to a funding agreement of this sort would fail to give proper weight to its inextricable connection with the very subject matter of the legal advice that might be given and the nature of the professional legal services to be rendered. It has the potential to reveal the litigant's likely legal strategy. The funding agreement in a literal and substantive sense, fulfils the purpose of providing legal services in terms not only of the overall capacity to have them at all, but also their availability at critical junctures in the case. While it may not reveal the content of legal advice, it reveals the confidential circumstances of its availability and throws oblique light on the confidential circumstances to which the advice is directed.
[8]One could, for example, infer from a funding agreement the likelihood of tactical advice being given of a particular kind at different stages of the litigation or, for that matter, of the likelihood of an appeal being advised or not advised. I consider this funding agreement could do so. [emphasis added]
[3][2001] NSWSC 476 at [6]-[8].
This position has been followed in a number of cases, including Apple Computer Australia Pty Ltd v Wily;[4] Martin John Green v CGU Insurance Ltd;[5] Marshall v Prescott (No 4).[6]
[4][2002] NSWSC 855.
[5](Unreported SC NSW, Einstein J, 1 May 2008 BC200803029).
[6][2012] NSWSC 992.
However, what aspect of the funding agreement, with which Santow J was concerned in Global, that had the potential to reveal the likely legal strategy of the party is barely hinted at in the passages I have quoted above, and at best in the sentences I have emphasised. Thus, as a matter of principle, it assists, but as a matter of application of the principle, it is of rather limited assistance.
Greater assistance is given by the decision of Einstein J in Martin John Green v CGU Insurance Ltd.[7] That case involved a subpoena issued in the context of an application for security for costs made against a liquidator. The subpoena sought the production of a funding agreement. It was produced in redacted form. The material redacted concerned the capped limits of the funding and the whole section of the agreement headed “Repayment and Additional sum”, which no doubt concerned the circumstances in which the repayment of the costs was required and the share of any recovery payable to the funder. Einstein J said in relation to the parts of the agreement concerning the capping limits:
[25]It is quite plain that the redacted section of subclauses 2.1.1, 2.1.2 and 2.6, formed part of the funding agreement which was prepared for the dominant purpose of the client being provided with professional legal services. Hence following the decision of Santow J, it is appropriate for the Court to consider the extent to which so much of the document as has been redacted, has the potential to reveal the client's likely legal strategy.
[26]Having had the opportunity to inspect the whole of the redacted form of the document I am satisfied that the redacted sections of the above- described sub-clauses have the potential to reveal the plaintiff's likely legal strategy. If the unredacted version of these sub clauses were required to be revealed, that could reveal the plaintiff's likely legal strategies and would reveal the confidential circumstances of the availability of funding. I am further satisfied that the funding agreement was prepared for the dominant purpose of the plaintiff being provided with professional legal services.
[27]As in the proceedings before White J[8], so in the present proceedings, the documents were prepared for the purpose of the plaintiff being provided with funding but that purpose itself, was also here, inextricably linked with the purpose of their being provided with professional legal services. For that reason the privilege has not been waived. Nor has there been any disclosure of the substance of the material which has been redacted. The portions of the funding agreement which have been redacted are entirely separate in not disclosing the capping limits. There has not been any waiver of the material which would disclose the maximum amount which LLS is willing to provide to the liquidator to run his own case. Nor have the documents being deployed by the plaintiff in a way which would imply its consent to the disclosure of their contents.
[7](Unreported SC NSW, Einstein J, 1 May 2008 BC200803029).
[8]Fiduciary Ltd v Morningstar Research Pty Ltd (unreported), White J, Supreme Court of NSW, 16 May 2007.
In relation to the clauses concerning the “Repayment and Additional sum”, Einstein J observed:
[30]Turning to cl 3, the unredacted clause which I have had an opportunity to inspect has an important relevance to the bringing of the proceedings in the first place and furthermore, a special relevance to the ongoing basis of considerations of settlement as opposed to pursuit of the proceedings to a hearing, depending upon the circumstances at any given time. Hence those paragraphs, if required to be provided in an unredacted form, are squarely caught by the Santow test: they would provide to the defendant information which could reveal the plaintiff's likely legal strategies and would reveal the confidential circumstances of the availability of funding. Nor has there been a disclosure of the substance of the redacted parts of cl 3 of the funding agreement. [emphasis added]
In Spatialinfo Pty Ltd v Telstra Corporation Ltd,[9] Sundberg J expressed what at first sight might appear to be a contrary view. But on closer analysis, he was concerned with the position at common law and not under s 119 of the uniform Evidence Acts. The common law test, as identified by Lindgren J in Cook v Pasminco Ltd,[10] was applied by his Honour. This meant that to be privileged the agreement needed to have been created for the dominant purpose of the giving or receiving of legal advice or of being used in existing or anticipated legal proceedings. Sundberg J said:
The common law applies, under which the question would be whether the agreement was created for the dominant purpose of being used in existing or anticipated litigation. See Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44 at 52. I say that “would be” the question, because no claim of privilege is made in respect of the agreement as a whole. It is only the redacted parts in respect of which privilege is claimed. But it is appropriate to consider whether the agreement would be privileged, because if it is not, then specific parts of it cannot be. The first difficulty in Spatialinfo’s claim is that there is no evidence that the agreement was created for use in litigation. Accordingly the claim fails in limine. If I were to speculate as to the purpose for which the agreement came into existence, I would conclude that it was not created for the purpose of being used “in litigation”, though it was to be used in order to obtain funds to finance litigation, which is a different thing. However it is not necessary to decide this point for, as I have said, Spatialinfo has not gone into evidence on the purpose issue.
[9][2005] FCA 445.
[10](2000) 107 FCR 44; 179 ALR 462, at [47].
It will be observed, also, that his Honour’s observations are obiter. It is not surprising, therefore, that in considering the application of s 119, the Courts have instead followed the approach of Santow J in Global.
Ms Forsyth rightly referred me to other cases that qualified the position just stated. So it is clear that not all litigation funding agreements are privileged. In Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd,[11] Bergin J noted at [36] that Santow J’s comments were authority for the more limited proposition that a funding agreement may satisfy the requirements of s 119 of the Evidence Act2008, depending on the particular terms of that agreement.
[11][2006] NSWSC 234.
Similarly, in Marshall v Prescott, Bellew J stated:[12]
[12]at [84] to [89].
[84]What emerges from an examination of the authorities is that whilst a document in the nature of [a litigation funding agreement] may be characterised as confidential, and may be prepared for the dominant purpose of obtaining legal services, each case must be determined on its own facts. In particular, the nature of the connection between the preparation of the document, and the dominant purpose of obtaining legal services, must be assessed. If the document is merely one which does nothing more than create a relationship, then it is likely that no privilege will attach to it. I have examined document 20 carefully with these principles in mind. As a result, a number of matters emerge.
[85]Firstly, there is a clearly stated intention on the part of Carruthers and the GIO that the terms of the document will remain confidential, absent compulsion by law. That, of course, is not conclusive but is a relevant matter to be taken into account.
[86]Secondly, the document has the potential to reveal, at least in general terms, the legal strategy which was to be adopted in relation to the Carruthers proceedings. The fact that it does so by implication, rather than expressly, does not mean that privilege should not attach to it (see CSR v Eddy (above) per Hodgson JA at [7].
[87]Thirdly, the document by its very nature fulfils the purpose of providing legal services, at least in terms of the overall capacity to have them at all.
[88]Fourthly, the document has an obvious, and inextricable, connection with the advice tendered by GIO’s lawyers to Carruthers in relation to the Carruthers proceedings. On any view, its content goes well beyond simply specifying rates for work which is to be carried out.
[89]In these circumstances I am satisfied that privilege attaches to document 20.
Finally, I note for completeness that there is abundant authority that a part of a document may be the subject of a claim of privilege and may be sealed up or redacted: see the interesting historical analysis by McPherson J in Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd.[13] The privilege in parts of documents sought to be sealed up or redacted may be waived where the redacted part is reasonably necessary to a proper understanding of the other parts, or the document as a whole: s 126 of the Evidence Act2008; Towney v Minister for Land and Water Conservation (NSW);[14] Sugden v Sugden;[15] ML Ubase Holdings Co Ltd v Trigem Computer Inc[16] and see also British American Tobacco Australia Services Ltd v Cowell.[17]
[13][1987] 2 Qd R 335, 337.
[14](1997) 76 FCR 401.
[15][2007] NSWSCA312.
[16][2007] NSWSC 859.
[17](2002) 7 VR 524 at [121]
Would the Insurer Agreements as a whole be privileged?
The plaintiff has only objected to inspection of the redacted portions of the Insurer Agreements. However, in order to determine whether a part of a funding agreement is privileged, it is necessary to determine whether the agreement as a whole could be privileged: Spatialinfo at [66]. It was common ground between the parties that this was the correct starting point.
It seems clear that the requirements for s 119 to operate in relation to the Insurer Agreements would be:
(a) That there has been an objection by a client;
(b)That each redacted portion of the agreement is confidential, forming part of what was a confidential document;
(c)That the document was prepared for the dominant purpose of the client being provided with professional legal services relating to this proceeding (an Australian proceeding) in which the client (the plaintiff)[18] is a party.
[18]See s 117 of the Evidence Act.
There is no issue that the plaintiff is a client for the purposes of s 119. Although neither Insurer Agreement includes a term or statement that it is confidential, s 117 provides that a confidential document can be subject to implied confidentiality. Senior Counsel for SPI accepted that for the purposes of s 119 each Agreement is confidential.[19] Even if he had not done so, I would have concluded that they are each subject to an implied term of confidentiality.
[19]T50, 29/4/2013.
The identification of the dominant purpose involves two distinct steps. The first is the ascertainment of the subjective purpose of the person making or commissioning the communication in question. The second step is to determine whether the party claiming the privilege has established that the privileged purpose was the dominant purpose. The first step is, therefore, the identification of a subjective matter. The second, is an objective assessment by the Court having regard to the evidence, the nature of the documents and the parties’ submissions. Evidence of the intention of the document’s maker, or of the person who authorised or procured it, is not necessarily conclusive: Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd).[20]
[20][2008] VSCA 59 at [2]-[3], citing Commissioner of Taxationv Pratt Holdings [2005] FCA 1247; Australian Wheat Board v Terrence Cole (2006) 155 FCR 30.
Senior Counsel for SPI submitted that the affidavit of Mr Watson did not establish, subjectively, that the dominant purpose of the entry into the Insurer Agreements was for the purpose of the plaintiff being provided with professional legal services. Mr Watson swore that the purpose of the Agreements was the obtaining of financial contribution from various insurers to the disbursements incurred and paid by Maurice Blackburn in the proceeding to enable the plaintiff to be provided with professional legal services in the proceeding. It was submitted that this statement was unclear, and could mean either the sole purpose was as stated or that only “a” purpose was as stated.
It seems to me, however, that the affidavit is clear that the purpose was as stated and, accordingly, the attempt to deconstruct it should fail.
SPI also submitted that the realistic position was that the purpose of each of the Insurer Agreements was to relieve Maurice Blackburn of their existing liability to meet the disbursements required to progress the proceeding. Thus, the proper objective characterisation of each Agreement was that its purpose was to benefit Maurice Blackburn. The matters identified supporting this characterisation were:
(a) That it was Maurice Blackburn that was the counterparty to the Insurers;
(b)The agreement between Maurice Blackburn and the plaintiff was a ‘no-win-no fee’ agreement under which Maurice Blackburn was obliged to meet the disbursements at least until a successful outcome was achieved; and
(c)That the Agreements were entered into in July 2011 and January 2012, mid-way through the proceedings, or at least well after the commencement;
This submission is allied to another submission. It was also argued that the purpose was anterior to the dominant purpose of the plaintiff being provided with professional legal services, in the sense that it was the funding of Maurice Blackburn which in turn enabled that firm to provide the services. This is no different from the position in most funding agreement cases, and was the situation in Global. As discussed above, Santow J held that the funding agreement in question in "a literal and substantive sense, fulfils the purpose of providing legal services in terms not only of the overall capacity to have them at all, but also their availability at critical junctures in the case" (at [7]). Similarly, that is the position in this case.
In my view, both the evidence of Mr Watson to which I have referred, and an objective review of the terms of the Insurer Agreements, reveal that the dominant purpose of these Agreements is to partially fund disbursements incurred in pursuit of the plaintiff’s claims in this proceeding, to assist the plaintiff in the prosecution of her claims and to ensure that she has access to legal services, including counsel.
Thus, but for the express waiver of the parts of each Insurer Agreement not redacted, I would conclude that the revealing of the level of contribution to be made by the Insurers, and in the case of the Hall and Wilcox Agreement, the capped limit, in the Agreements would be likely to reveal or lead to an implied disclosure of the plaintiff’s legal strategy, in the sense that term is used in the authorities referred to above.
Do the redacted parts of the Insurer Agreements disclose the plaintiff’s legal strategy?
The next question is whether the redacted parts of the Insurer Agreements are properly characterised as relating to the plaintiff’s legal strategy and should thus be capable of continuing to attract privilege notwithstanding the waiver of privilege over the other parts of the Agreements. I am limited in what I can say about this aspect of the matter because of the risk of disclosing material that may be found hereafter to be properly the subject of privilege.
The ‘decision making’ provisions do not appear to me to reveal anything of significance regarding the legal strategy of the plaintiff. They are no more than a natural concomitant of the provision of funding by the Insurers. The ‘practical provisions’ in the Hall and Wilcox Agreement are in a different category altogether and relate to matters of a practical nature that do not appear to me to affect legal strategy in any relevant sense.
Counsel for the plaintiff submitted that the redacted portions of the Insurer Agreements reveal certain processes that underpin the litigation and to expose those processes would effectively expose part of the Plaintiff’s legal strategy. I disagree. The matters that are likely to be significant in the legal strategy of the plaintiff are already disclosed by the waiver of the provisions of the Agreements concerning the contributions of the Insurers and in the case of the Hall and Wilcox Agreement the capped limit. The confidential circumstances of the availability of funding, and the level of funding, have been disclosed: cf Green’s Case at [26]-[27].[21] The provisions that are redacted do not appear to me to reveal such things as have been identified in other cases as, for example, matter relevant to “the ongoing basis of considerations of settlement as opposed to pursuit of the proceedings to a hearing, depending upon the circumstances at any given time”.[22]
[21]See paragraph 29 above.
[22]Green’s Case above at paragraph 30.
Having come to that view, I do not need to deal with the question of whether s 126 of the Evidence Act2008 gives rise to a waiver of the redacted material as being reasonably necessary to enable a proper understanding of the document.
Conclusion
In conclusion, in my view the redacted parts of the Insurer Agreements do not provide to SPI information which could reveal the plaintiff's likely legal strategies, or would reveal the confidential circumstances of the availability of funding.
I will, therefore, order that the plaintiff disclose to SPI the full unredacted Insurer Agreements.
Schedule of Parties
| CAROL ANN MATTHEWS | Plaintiff |
| - and - | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | First Defendant |
| (ACN 060 674 580) | Second Defendant |
| SECRETARY TO THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT | Third Defendant |
| COUNTRY FIRE AUTHORITY | Fourth Defendant |
| STATE OF VICTORIA | Fifth Defendant |
| - and - | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) | Plaintiff by Counterclaim |
| - and - | |
| (ACN 060 674 580) | First Defendant to Counterclaim |
| SECRETARY TO THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT | Second Defendant to Counterclaim |
| COUNTRY FIRE AUTHORITY | Third Defendant to Counterclaim |
| STATE OF VICTORIA | Fourth Defendant to Counterclaim |
| CAROL ANN MATTHEWS | Fifth Defendant to Counterclaim |
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