Matthews v SPI Electricity Pty Ltd (Ruling No 30)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4788 of 2009

CAROL ANN MATTHEWS	Plaintiff
V
SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS (According to the attached schedule)	Defendants

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2013
DATE OF RULING:	15 October 2013
CASE MAY BE CITED AS:	Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 30)
MEDIA NEUTRAL CITATION:	[2013] VSC 547

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EVIDENCE – Privilege – Issue waiver – Documents recording communications between Plaintiff’s solicitors and witnesses – Internal communications of Plaintiff’s solicitors – Communications between Plaintiff’s solicitors and counsel – Evidence Act 2008 (Vic) ss 117, 119, 122, 138.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Richter QC with Mr T Tobin SC Mr A J Keogh SC Mr L W L Armstrong & Ms M Szydzik	Maurice Blackburn
For SPI Electricity Pty Ltd	Mr J Beach QC with Mr P H Solomon SC Mr B Quinn SC Mr D Farrands Mr C Parkinson & Mr J Kirkwood	Herbert Freehills Smith
For USC	Mr R Ray QC with Ms E Brimer	Holman Fenwick Willan
For the State parties	Mr C M Caleo SC with Mr P E Anastassiou SC Ms W A Harris SC Mr S A O’Meara SC Mr P Zappia Ms A L Robertson Dr M D Rush Mr N McAteer & Mr A D Pound Ms J Firkin Mr J Heeley	Norton Rose Fullbright Australia

HIS HONOUR:
Introduction

Mrs Matthews has applied, pursuant to section 138 of the Evidence Act2008 (Vic),[1] to exclude all evidence derived from dummy conductor field tests on the Pentadeen Spur undertaken by SPI in 2012 and 2013.
[1]“the Act”.
One of the issues in the application is whether the landowners on whose property the dummy conductors were erected, and/or whose property was accessed by SPI in 2011, 2012 and 2013, for the purposes of erecting and/or conducting the field tests, consented to this.[2]
[2]Collectively referred to as the “landowners”, being Mr Philip Sullivan, Mr Russel and Mrs Blanche Beel, Ms Jenny Quinn, Mr Omar Obeid, Mr and Mrs Jackson, and Mr Rob Dowell, being persons whose properties may have been accessed by SPI for the purposes of erecting and/or conducting the field tests.
On Wednesday, 8 October 2013, SPI served a notice to produce upon Mrs Matthews' solicitors, Maurice Blackburn & Co,[3] requiring production by her of all documents, emails, notes and other papers recording communications in the period March 2012 to September 2013 between Maurice Blackburn and any of the landowners connected with the Pentadeen Spur.
[3]Referred to in this Ruling as “Maurice Blackburn”.
On Friday, 10 October 2013, counsel for Mrs Matthews produced a folder containing documents responsive to the notice but claimed client legal privilege on behalf of Mrs Matthews over the contents of that folder.
SPI challenge that claim, asserting that Mrs Matthews has waived privilege by Mrs Matthews putting in issue the question of the consent of the landowners.
The claim for privilege
I have inspected the list that summarises the documents produced by Maurice Blackburn. The documents produced comprise Maurice Blackburn’s file notes of telephone conference(s) with the landowners, emails to counsel (one attaching a note of a conference), and internal emails of Maurice Blackburn. These documents were created between December 2012 and April 2013.
Section 117 of the Act sets out the definitions relevant to Part 3.10 of the Act (“Privileges”) and defines “confidential document” as follows:
confidential document means a document prepared in such circumstances that, when it was prepared –
(a) the person who made it; or
(b) the person to whom it was made-
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
I am satisfied that each of the documents produced satisfies the test under s 117 of the Act, in that each is a confidential document that places Maurice Blackburn under an implied obligation to Mrs Matthews not to disclose its contents.
Section 119 of the Act reads as follows:
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.
Section 119(b) of the Act protects the disclosure of the contents of a confidential document relating to a proceeding before the court. The documents that Maurice Blackburn have produced, in my opinion, fall within this category.
This ruling is therefore directed solely to the privilege attaching to such documents and whether there has been a waiver of that privilege pursuant to s 122 of the Act, as SPI contends.
Section 122 of the Act reads (in part) as follows:
122 Loss of client legal privilege – consent and related matters
(1)    This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2)    Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3)    Without limiting subsection (2), a client or party is taken to have so acted if-
(a)    the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)   the substance of the evidence has been disclosed with the express or implied consent of the client or party.
Background
Before going to the principles relevant to this application the following basic matters may be stated:
(a)the privilege over the confidential documents is that of Mrs Matthews, not the landowners;[4]
(b)the question of the consent of the landowners to SPI's operations is an essential factor in determining whether s 138 of the Act is engaged; and
(c)the state of mind of each of the landowners as to SPI's operations is also a central issue in the application.
[4]In discussion with counsel I introduced what has proved to be a red herring: the issue of Mr Philip Sullivan and whether he was a client of Maurice Blackburn. Ultimately this has no bearing on this application which relates solely to Mrs Matthews’ claim for privilege.
In February 2012, SPI set up dummy conductors on the Pentadeen Spur and in doing so either gained access or carried out the works, either on or by traversing property of the landowners.
Mrs Matthews has filed affidavits sworn by three of the landowners, namely Mrs Blanche Beel, Mr Peter Jackson and Mr Philip Sullivan. Each deposes to the fact, either impliedly or expressly, that consent was not sought by SPI for undertaking the operation in setting up and maintaining the dummy conductors.
Analysis
SPI contend that, as the state of mind of the three landowners is a central issue, and as it can be inferred from the production of the documents that there were communications between the landowners and Maurice Blackburn, Mrs Matthews’ claim for privilege over such communications is impliedly waived.
In my opinion, for the reasons I shall now set out, the submission is misconceived.
For there to be a relevant waiver based on an inconsistency in maintaining the privilege, there must be an assertion by Mrs Matthews, express or implied, or the bringing of a case:
... which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.[5]
[5]DSE (Holdings) Pty Ltd v. InterTAN Inc (2003) 127 FCR 499 at 519 (emphasis original) [58] – although this statement of Allsop J was made in relation to undue influence it has been held to be of general application to issue waiver: see BHP Billiton Petroleum (Bass Strait) Pty Ltd v Esso Australia Resources Pty Ltd [2007] VSC 281 at [22] and Idoport Pty Ltd; National Australia Bank Limited & Ors v Sheahan & Ors [2012] NSWSC 58 at [52] (“Idoport”).
As the Full Federal Court said in Commissioner of Taxation v Rio Tinto Limited:
Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.[6]
The Court then went on to refer with approval to an earlier decision of the Full Federal Court in Adelaide Steamship Co Ltd & Anor v Janis Spalvins & Ors [1998] FCA 144 in which was said:
In other words the cases are ones in which, in the substantive proceeding brought, the privilege holder has put in issue the very advice received.[7]
[6]Commissioner of Taxation vRio Tinto Limited [2006] FCAFC 86 at [52] (“Rio Tinto”) as cited in Idoport at [55] (emphasis original).
[7]Cited in Rio Tinto at [53]; also cited in Idoport at [55].
Here, Mrs Matthews' “issue” is that there was no consent given by the landowners. She does not put in issue, expressly or impliedly, any question of confidential communication between her solicitors and the landowners. The question is whether there was an express or implied agreement between the landowners and SPI, not of any legal advice received by the landowners.
Of course, it may be that impliedly such an issue is raised by the material adduced in support of the application. For instance, perhaps if it was alleged by the landowners that their state of mind as to consent was influenced by legal advice received. But there is no such allegation or any evidence of that fact.
There is no suggestion, express or implied, in the material adduced by Mrs Matthews concerning legal advice given by Maurice Blackburn to the landowners. There is, therefore, no inconsistency as required by the Act.
The existence of communications between Maurice Blackburn and the landowners, whilst of forensic interest to SPI, goes nowhere unless it is asserted by the landowners that the advice in some way was relevant to the question of consent to the SPI operations in 2011, 2012 and 2013. As I have said, no such assertion is made. Suspicion on the part of SPI as to the nature of discussions between Maurice Blackburn and the landowners is patently insufficient to establish waiver.
The authorities are clear. Even if it was established that advice was given to landowners, then that of itself would not necessarily constitute a waiver. As was said recently:
It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party.
For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question.
What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege.[8]
[8]Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 at [47]-[48]; see also Idoport at [59].
So, in summary, there is no assertion by Mrs Matthews, either expressly or impliedly, relevant to communications between Maurice Blackburn and the landowners and more importantly, none relating to the question of the state of mind of the landowners. Mrs Matthews has not put in issue those communications.
In my opinion, Mrs Matthews' claim to client legal privilege should be upheld. She is not required to produce the documents which will be returned to Maurice Blackburn.

SCHEDULE OF PARTIES

BETWEEN
CAROL ANN MATTHEWS Plaintiff
and

SPI ELECTRICITY PTY LTD (ACN 064 651 118)  First Defendant
UTILITY SERVICES CORPORATION LIMITED
(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
UTILITY SERVICES CORPORATION LIMITED
(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

[2013] VSC 547

15 October 2013