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Powercor Australia Ltd v Perry

Powercor Australia Ltd v Perry

Case [2011] VSCA 239 19 August 2011

Appeal

Interlocutory Orders

Legal Privilege

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0107
POWERCOR AUSTRALIA LTD (ACN 064 651 109)	Applicant
v
TRACEY JOANNE PERRY and TERRENCE RAYMOND SAGAR	Respondents

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JUDGES	WARREN CJ, NETTLE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 August 2011
DATE OF ORDERS	10 August 2011
DATE OF PUBLICATION OF REASONS	19 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 239
JUDGMENT APPEALED FROM	[2011] VSC 308 (Robson J)

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PRACTICE AND PROCEDURE – Leave to appeal – Interlocutory order – Legal professional privilege – Whether judge erred in finding documents were not prepared for the dominant purpose of providing legal advice – Whether CEO’s purpose is of central relevance to assessment of dominant purpose – Whether applicant’s failure to call CEO at hearing could be regarded as significant – Application refused

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Appearances:	Counsel	Solicitors
For the Applicant	Dr C L Pannam QC	Wotton & Kearney
With Mr D G Guidolin
For the Respondents	Mr P J Riordan SC	Maddens Lawyers
With Dr S B McNicol

WARREN CJ

NETTLE JA
TATE JA:

On 10 August 2011, the court heard argument in support of the applicant’s application for leave to appeal against the order of Robson J, made on 4 July 2011, that the applicant grant the respondents inspection of the following four reports:

1) Report of Donald Bainbridge entitled ‘Asset Failure Investigation Tie Wire Coleraine SWER’ dated 10 March 2009 amended 24 June 2009;

2) Report of Robin Hartrick (Trak Investigations) entitled ‘Fire Investigation Report Coleraine Fire 7^th February 2009’ (incorporating transcript of a report by Dennis Clarke);

3) Supplementary Report of Dennis Clarke (Consulting & Power Pty Ltd) entitled ‘Additional Calculations on Effect of Unbalanced Span Lengths on Tie Behaviour’;

4) Draft Report of Ken Woolhouse (Woolhouse & Associates), entitled ‘Failed SWER Line Tie’, dated 22 July 2009.

The first three reports were commissioned by the applicant’s in-house legal officer, Ms Rands (we shall refer to them collectively as the ‘Rands Reports’), and the fourth was commissioned by a firm of solicitors retained by the applicant, Messrs Wotton & Kearney (we shall refer to it as the ‘W & K Report’).

At the conclusion of the applicant’s oral argument, after we had conferred, we dismissed the application for reasons which, we said then, would later be published. These are those reasons.

The history of the proceedings

The Coleraine Bushfire class action was commenced on 13 March 2009.

The Coleraine Bushfire class action has been set down for trial on 16 April 2012. The Horsham Bushfire class action has been set down for trial on 5 September 2011. The Pomborneit Bushfire class action has been set down for trial on 6 February 2012.

On 14 April 2011, Messrs Maddens, solicitors for the respondents, filed a summons seeking production of the Rands Reports and the W&K Report.

On 3 May 2011, Vincent James Power swore an affidavit of documents on behalf of the applicant in the Coleraine…

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 Powercor Australia Ltd v Perry

Details

AGLC: Powercor Australia Ltd v Perry [2011] VSCA 239
Case: [2011] VSCA 239
Decision Date: 19 August 2011

CaseChat Overview and Summary

Powercor Australia Limited sought leave to appeal against an interlocutory order that documents prepared by the company's CEO were not protected by legal professional privilege. The primary dispute centred on whether these documents were prepared primarily for the purpose of providing legal advice or for another purpose. The matter was heard in the Supreme Court of Victoria.

The key legal issues before the court were whether the judge had erred in determining that the documents in question were not prepared for the dominant purpose of providing legal advice and whether the CEO's purpose was central to this assessment. Additionally, the court considered whether the applicant's failure to call the CEO to give evidence at the hearing could be seen as significant.

The court found that the judge's decision was not in error. The court held that the dominant purpose test for legal professional privilege requires a consideration of the primary purpose for which the documents were prepared. The CEO's purpose was not the sole determinant, but part of a broader assessment. The court also concluded that the applicant's decision not to call the CEO to give evidence did not necessarily undermine the overall findings of the judge.

The application for leave to appeal was dismissed. The court found no error in the judge's assessment of the documents' preparation purpose and did not consider the absence of the CEO's testimony as determinative.

Orders