Matthews v SPI Electricity Pty Ltd (Ruling No 30) - [2013] VSC 547

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…

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 547
Decision Date: 15 October 2013

CaseChat Overview and Summary

In Matthews v SPI Electricity Pty Ltd, the plaintiff sought to adduce evidence of documents that recorded communications between his solicitors and witnesses, as well as internal communications within the plaintiff's solicitors' firm and communications between the plaintiff's solicitors and counsel. The case was heard in the Supreme Court of Victoria, where the defendants sought to exclude the evidence on the basis of legal professional privilege. The court had to determine whether the documents fell within the scope of legal professional privilege and, if so, whether any exceptions applied to allow their disclosure.

The court examined the nature of the communications and whether they were made for the dominant purpose of providing legal advice or in contemplation of or for use in legal proceedings. It considered whether the documents were prepared in connection with the provision of legal services or whether they were prepared for some other purpose. The court also assessed whether any of the statutory exceptions under the Evidence Act 2008 (Vic) applied, particularly focusing on sections 117, 119, 122, and 138, which relate to overriding public interest, the administration of justice, and the interests of justice.

The court found that the documents were protected by legal professional privilege as they were prepared for the dominant purpose of providing legal advice and were in contemplation of legal proceedings. The internal communications between the plaintiff's solicitors and the communications with counsel were considered to be integral to the legal advice process. The court held that none of the statutory exceptions applied to override the privilege. Consequently, the plaintiff's application to adduce the evidence was dismissed.

The final orders of the court were that the evidence of the documents in question was excluded from being presented in the trial. The court determined that the documents were protected by legal professional privilege and that no statutory exceptions applied to permit their disclosure.

Orders