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Perton v Walters

Perton v Walters

Case [2018] VSC 445 14 August 2018

Discovery & Disclosure

Stay of Proceedings

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S CI 2017 2326

JANE ELIZABETH PERTON (NEE WARRING) AS TRUSTEE OF THE PORT EAGLE INVESTMENT TRUST	Plaintiff
v
LYNNE MARGARET WALTERS	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2018
DATE OF JUDGMENT:	14 August 2018
CASE MAY BE CITED AS:	Perton v Walters
MEDIUM NEUTRAL CITATION:	[2018] VSC 445 First Revision 17 August 2018

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PRACTICE AND PROCEDURE – Client legal privilege – Disclosure in the course of taxation of costs – Whether waiver of privilege – Whether waiver limited – Privilege waived without limitation – Evidence Act 2008 (Vic), s 122; Mann v Carnell (1999) 201 CLR 1; Giannarelli v Wraith (No 2) (1991) 171 CLR 592; Goldman v Hesper [1988] 3 All ER 97 explained.

PRACTICE AND PROCEDURE – Implied undertaking – Whether implied undertaking applicable to documents voluntarily inspected in the course of taxation of costs – Whether circumstances warranting a release of the implied undertaking if applicable – Implied undertaking not applicable – But if applicable, undertaking released – Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Liberty Funding v Phoenix Capital Ltd (2005) 218 ALR 283; Hearne v Street (2008) 235 CLR 125; Ambridge Investments Pty Ltd v Baker & Ors(No 3) [2010] VSC 545; Barrow v McLernon & Anor [2012] VSC 134.

PRACTICE AND PROCEDURE – Stay of execution – Whether stay of execution of costs order warranted – Stay granted – Rule 66.14 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P H Caillard	Madgwicks Lawyers
For the Defendant	Mr R M Garrett QC with Mr R H Miller	Nedovic Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Affidavits............................................................................................................................................. 1

Judgment for possession................................................................................................................... 2

Post judgment events........................................................................................................................ 6

The new proceeding........................................................................................................................ 10

Production and use of privileged documents............................................................................. 12

Client legal privilege.................................................................................................................. 12
Submissions................................................................................................................................. 14
Waiver - Consideration.............................................................................................................. 16

Implied undertaking....................................................................................................................... 22

Stay application................................................................................................................................ 27

Rule 66.14............................................................................................................................ 27
Rule 66.16............................................................................................................................ 28

Consideration.............................................................................................................................. 29

Conclusions....................................................................................................................................... 30

HIS HONOUR:

Introduction

By summons filed 9 July 2018 the defendant (Mrs Walters) seeks the following orders:

(a) that the further hearing of the taxation of the costs of the plaintiff (Mrs Perton) pursuant to paragraph 4 of the orders of the Court made on 31 October 2017 be stayed pending further order;

(b) that Mrs Walters be permitted to rely in proceeding S ECI 2018 00225 in this Court (the new proceeding) on the documents which are the subject of items 402 and 407 in Mrs Perton’s bill of costs dated 31 January 2018 in proceeding S CI 2018 00654 (the Costs Court proceeding); and

(c) Mrs Perton produce to Mrs Walters within 48 hours clear copies of the documents which are the subject of items 402 and 407 in her bill of costs dated 31…

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 Perton v Walters

Details

AGLC: Perton v Walters [2018] VSC 445
Case: [2018] VSC 445
Decision Date: 14 August 2018

CaseChat Overview and Summary

The parties in the case were Perton and Walters. The dispute was about client legal privilege, specifically whether there was a waiver of privilege during the taxation of costs. The matter was heard in the Supreme Court of Victoria. The court had to decide if there was a waiver of privilege, if the waiver was limited, and whether an implied undertaking applied to documents inspected during the taxation of costs. Additionally, the court needed to determine if a stay of execution of the costs order was warranted.

The court examined whether the privilege was waived without limitation, considering previous cases like Mann v Carnell, Giannarelli v Wraith, and Goldman v Hesper. It concluded that the privilege was indeed waived without any limitation. Regarding the implied undertaking, the court ruled that it did not apply to the documents inspected during the taxation of costs. However, if it had applied, the circumstances warranted its release, referencing cases such as Springfield Nominees Pty Ltd v Bridgelands Securities Ltd and Hearne v Street.

The court also considered whether a stay of execution of the costs order was appropriate, ultimately granting the stay. It relied on Rule 66.14 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) in making this decision. The court’s analysis and application of relevant legal principles led to these conclusions, forming the basis of its judgment in the case.

Orders