Newtronics Pty Ltd v Gjergja - [2011] VSC 594

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

MAJOR TORTS LIST

S CI 2006 06897

NEWTRONICS PTY LTD (in liquidation)	Plaintiff
– and –
GIORGIO SERGIO GJERGJA, RUSSELL ALLAN KENERY, DAVID JOHN BRUCE and RUSSELL KENNEDY (a firm)	Defendants

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2011
DATE OF JUDGMENT:	23 November 2011
CASE MAY BE CITED AS:	Newtronics Pty Ltd v Gjergja and ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 594	Revised 22 December 2011

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EVIDENCE ― Client legal privilege ― Loss or waiver of privilege ― Delivery of bill of costs for party/party taxation ― Descriptions by item of charges and disbursements ― Whether description is privileged as revealing confidential communication ― Sufficiency of evidence establishing privilege in description ― Whether revelation of description and delivery of bill amounts to waiver of putative privilege ― Waiver for limited purpose ― Whether disclosure occurred by “compulsion of law “under taxation process ― Evidence Act No 47 of 2008 (Vic), s 118, 119, 122(3), (5).

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr S Waldren	Gadens Lawyers
For the fourth defendant	Dr A Hanak	Minter Ellison
For Seeley International Pty Ltd	Mr R C Macaw QC	Seeley International Pty Ltd In-house Counsel

HIS HONOUR:

This application involves the application of legal principles of client legal privilege and the loss (or waiver) of that privilege under the Evidence Act. It arises in the peculiar context of a bill of costs produced for a party/party taxation (or more precisely, an assessment) in Federal Court commercial litigation. The plaintiff here, Newtronics Pty Ltd (in liquidation), was the party liable for costs after an adverse trial judgment in the Federal Court. The bill was discovered by Newtronics in this proceeding because, as I will expose, it has obvious relevance and importance. The dispute on this application arose when the fourth defendant, the law firm of Messrs Russell Kennedy, served Newtronics with a notice to produce that bill as discovered, and that is all. Newtronics as discovering party objected to producing that bill, at least not without “redactions” (masking or editing) saying that the bill contained contents that were privileged from disclosure; that is, privilege belonging to the non party that delivered the bill in the Federal Court litigation to Newtronics. On this application by Russell Kennedy to compel production of the document in pristine form, Newtronics took a neutral stance. The party who lodged the bill in the Federal Court, Seeley International Pty Ltd was the opponent to the application.

For the reasons that follow, I think this application must be allowed, unconditionally. I do not think, on the evidence, privilege for a description of an item in a bill of costs ― as distinct from the underlying documentation ― has been established. But in any event I think if Seeley chose, strangely I would think, to describe an item in a bill using privileged information, then the privilege has been waived voluntarily.…

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 Newtronics Pty Ltd v Gjergja

Details

AGLC: Newtronics Pty Ltd v Gjergja [2011] VSC 594
Case: [2011] VSC 594
Decision Date: 23 November 2011

CaseChat Overview and Summary

Newtronics Pty Ltd, the appellant, was involved in a legal dispute with Gjergja, the respondent. The case before the court revolved around issues of client legal privilege, specifically whether the privilege was lost or waived when a detailed bill of costs was delivered to the opposing party for taxation purposes. The matter was heard in the Supreme Court of Victoria.

The primary legal issues addressed by the court were whether the detailed descriptions of charges and disbursements in the bill of costs constituted confidential communications that were protected by client legal privilege, and whether the delivery of the bill and the subsequent taxation process amounted to a waiver of that privilege. The court also considered whether the privilege could be lost for a limited purpose, or if the disclosure was compelled by law under the taxation process.

In its reasoning, the court held that the descriptions of charges and disbursements in the bill of costs did not reveal confidential communications, and thus were not privileged. The court found that the evidence presented was not sufficient to establish that the descriptions were privileged. Furthermore, the court concluded that the delivery of the bill of costs and the taxation process did not constitute a waiver of the privilege for a limited purpose, as the disclosure occurred by the compulsion of law. The court found that the disclosure was compelled by the statutory taxation process, and thus did not amount to a waiver of privilege.

As a result of the court’s decision, the appeal was dismissed, and the orders made by the trial judge were upheld. The court found that the trial judge had correctly exercised their discretion in admitting the evidence of the detailed bill of costs, and that the privilege had not been waived in the circumstances of the case.

Orders