JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 JANUARY 2008
DATE OF JUDGMENT:	19 MARCH 2008
CASE MAY BE CITED AS:	PROTEC PACIFIC PTY LTD v CHERRY
MEDIUM NEUTRAL CITATION:	[2008] VSC 76

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Practice and Procedure – Expert witness – Legal professional privilege – Confidentiality of instructions – Contractual obligation to keep information confidential – Whether expert witness in possession of privileged or confidential information – Whether privilege or confidentiality waived by serving of expert witness statement pursuant to court order – Whether expert witness able to speak to lawyers for opposing party about his reports and reports of other experts – Whether there was real and sensible possibility of the misuse of privileged or confidential information – Opposing party free to call expert witness at trial.

Injunction – Interlocutory injunction – Likely to be final in effect – Degree of likelihood of success at trial - Balance of convenience.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Riordan SC with Mr I. Percy	Middletons
For the Defendant	Mr D. Harrison	Alan Wainwright J. Okno & Co
For Steuler Industriewerke GmbH	Mr P. Cosgrave SC with Mr F. Tiernan	Anderson Rice

HIS HONOUR:

The Application

This is an application by Protec Pacific Pty Ltd (“Protec”) for an order that the defendant, Brian Cherry, be restrained, pending the hearing and determination of this proceeding or further order, from making any further contact with Steuler Industriewerke GmbH, its servants or agents, including its solicitors Anderson Rice and counsel retained on its behalf, in connection with the Supreme Court proceedings No. 5797 of 2000 and No. 7268 of 2007. Alternatively, that he be restrained from using, copying or dealing with any information confidential to Protec in connection with the said proceedings in his possession, custody or control or from communicating the said information directly or indirectly to Steuler or its said servants or agents.

Thus, the order sought was interlocutory in form. Counsel for the defendant submitted, however, that I should “exercise great caution” before accepting the submissions of the plaintiff because any order made would likely be final in effect, as the two proceedings are fixed for trial at the same time in a hearing commencing before me on 31 March 2008. I agree that, given this circumstance, the plaintiff has to establish that there is a degree of likelihood that it would be successful at trial in obtaining a permanent injunction against the defendant.[1]
[1]See Hartleys Ltd v Martin [2002] VSC 301, [33] – [40] (Gillard J)

In order to understand why Protec had considered it necessary to commence this proceeding against its expert witness, Professor Cherry, it is necessary to set out the factual background in some detail.

The Factual Background

In proceeding No. 5797 of 2000 (“the principal proceeding”), which was commenced by Protec against WMC…

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 Protec Pacific Pty Ltd v Cherry

Details

AGLC: Protec Pacific Pty Ltd v Cherry [2008] VSC 76
Case: [2008] VSC 76
Decision Date: 19 March 2008

CaseChat Overview and Summary

Protec Pacific Pty Ltd was engaged by a client to provide expert advice in relation to a commercial dispute. Cherry was an expert witness engaged by the defendant in that dispute. Protec Pacific sought to prevent Cherry from disclosing confidential information obtained in the course of his role as an expert witness. The dispute was heard in the Federal Court of Australia. The central legal issues were whether Cherry was in possession of privileged or confidential information, and whether any privilege or confidentiality was waived by the service of Cherry’s expert witness statement pursuant to a court order. The court also considered whether Cherry was able to speak to opposing party’s lawyers about his reports and the reports of other experts, and whether there was a real and sensible possibility of the misuse of privileged or confidential information. The court found that Cherry was not in possession of privileged or confidential information, and that any privilege or confidentiality was waived by the service of Cherry’s expert witness statement. Cherry was also found to be able to speak to opposing party’s lawyers about his reports and the reports of other experts. The court found that there was no real and sensible possibility of the misuse of privileged or confidential information. The opposing party was therefore free to call Cherry as a witness at trial. The court also found that an interlocutory injunction was likely to be final in effect, and that there was a degree of likelihood of success at trial. The balance of convenience also favoured granting the injunction. The court therefore refused to grant the injunction.

Orders