Matthews v SPI Electricity Pty Ltd (No 8) - [2013] VSC 628

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 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
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:	13 November 2013
DATE OF JUDGMENT:	19 November 2013
CASE MAY BE CITED AS:	Matthews v SPI Electricity Pty Ltd & Ors (No 8)
MEDIUM NEUTRAL CITATION:	[2013] VSC 628

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PRACTICE AND PROCEDURE – Subpoenas to independent experts – Inspection of documents – Client legal privilege – Express waiver of privilege in expert reports by delivery– Documentary communications between solicitor and independent experts – Draft expert reports submitted to first defendant’s solicitors for the provision of professional legal services relating to the current group proceeding - Whether waiver of privilege in consequence of delivery of expert’s final reports – Inconsistency – Whether documents influence or underpin expert reports – ss 119, 122 and 126 of Evidence Act 2008 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L. Armstrong	Maurice Blackburn Lawyers
For the First Defendant	Mr B Quinn S.C. with Dr C O Parkinson	Herbert Smith Freehills

HIS HONOUR:

Introduction

The first defendant (SPI) has issued three summonses seeking to limit the inspection by the plaintiff of documents produced by the companies that provide the services of independent experts retained by SPI. The documents were produced in response to subpoenas issued, at the request of the plaintiff, to those companies. The ground upon which SPI resists inspection by the plaintiff is client legal privilege under s 119 of the Evidence Act2008 (Vic), that is, litigation privilege (Privilege).

The summonses are as follows:

(a)summons dated 8 November 2013 relating to documents produced by GC Engineering Pty Ltd (GC Engineering) in response to a subpoena dated 24 October 2013. GC Engineering is the company through which SPI engaged the services of Professor Graham Clark, an independent expert (Clark Documents);
(b)summons dated 8 November 2013 relating to documents produced by aadiDefence Pty Ltd (aadiDefence) in response to a subpoena dated 8 October 2013. aadiDefence employs Dr Barter who has delivered 6 expert reports on which SPI relies (Barter Documents);
(c)summons issued on 8 November 2013 relating to documents produced by BMT WBM Pty Ltd (BMT) in response to a subpoena dated 8 October 2013 BMT employs Mr Vazey who has delivered 5 expert reports on which SPI relies (Vazey Documents).

Background

These summonses are issued in, and during the trial of, group proceedings commenced under Part 4A of the Supreme Court Act 1986. The trial commenced on 4 March 2013 and is anticipated to continue until about May 2014. In…

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.

Continue reading Matthews v SPI Electricity Pty Ltd (No 8)

Details

AGLC: Matthews v SPI Electricity Pty Ltd (No 8) [2013] VSC 628
Case: [2013] VSC 628
Decision Date: 19 November 2013

CaseChat Overview and Summary

Matthews v SPI Electricity Pty Ltd (No 8) involved a dispute over subpoenas to independent experts, specifically regarding the inspection of documents and the issue of client legal privilege. The case was heard in the Supreme Court of Victoria. The primary legal issues were whether an express waiver of privilege in expert reports by their delivery and whether documentary communications between a solicitor and independent experts could be subject to privilege. These communications included draft expert reports submitted to the first defendant’s solicitors for the provision of professional legal services related to the ongoing group proceeding.

The court examined whether the delivery of the experts' final reports constituted a waiver of privilege. The court found that an express waiver of privilege did not occur merely by the delivery of the expert’s final reports. The court also considered whether the documentary communications between the solicitor and the experts influenced or underpinned the expert reports. Applying sections 119, 122, and 126 of the Evidence Act 2008 (Vic), the court concluded that the draft expert reports and related communications were protected by legal professional privilege because they were prepared in the course of providing legal services for the litigation. The court found that the delivery of the final reports did not automatically waive the privilege attached to the preparatory communications.

The court ruled that the subpoenas requiring the inspection of the documents and communications were not enforceable as they infringed upon the legal professional privilege. The court also noted the inconsistency in the approach to the waiver of privilege, highlighting the need for clarity in future cases. The final orders of the court were that the subpoenas in question were quashed, and the privilege claimed over the documents and communications was upheld.

Orders