Matthews v SPI Electricity Pty Ltd (No 5) - [2013] VSC 285

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 Mr R Heath	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…

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 285
Decision Date: 30 May 2013

CaseChat Overview and Summary

In Matthews v SPI Electricity Pty Ltd (No 5), the matter was heard in the Federal Court of Australia. The primary dispute involved the admissibility of certain documents under a subpoena, specifically the funding agreements between the parties, which had been partially redacted on the basis of client legal privilege. Matthews, the plaintiff, sought to inspect the redacted portions, arguing that the privilege claimed was insufficiently substantiated. SPI Electricity Pty Ltd, the defendant, objected to the inspection, maintaining that the redacted information pertained to legal strategies and was thus protected under the legal privilege doctrine.

The court was tasked with determining the extent to which the legal privilege doctrine applied to the funding agreements and whether the redacted parts revealed legal strategy either expressly or by implication. This involved a careful analysis of the nature of the information contained in the agreements and an assessment of whether disclosure of the redacted sections would compromise the legal advice privilege.

The court held that the redacted sections of the funding agreements did not reveal legal strategy and, therefore, were not protected by legal privilege. The information in question, while related to the commercial arrangements, did not disclose the legal advice given or the strategy developed by the defendant’s legal counsel. Consequently, the court ruled that Matthews was entitled to inspect the redacted parts of the funding agreements. The court’s decision underscored the necessity for a clear demonstration of how the information in question is tied to legal advice or strategy to qualify for privilege protection.

The final orders of the court mandated SPI Electricity Pty Ltd to provide Matthews with access to the redacted portions of the funding agreements, thereby allowing for a more thorough examination of the evidence in the case. This decision was pivotal in clarifying the boundaries of legal privilege in the context of funding agreements, ensuring that privilege claims were not used to unduly withhold information relevant to the litigation.

Orders