Re Bank Mansion Pty Ltd
[2018] VSC 52
•2 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S CI 2017 03240
IN THE MATTER OF BANK MANSION PTY LTD (IN LIQUIDATION)
(ACN 142 812 360)
| BANK MANSION PTY LTD (IN LIQUIDATION) (ACN 142 812 360) | First Plaintiff |
| and | |
| GLENN FRANKLIN IN HIS CAPACITY AS LIQUIDATOR OF BANK MANSION PTY LTD (IN LIQUIDATION) (ACN 142 812 360) | Second Plaintiff |
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JUDGE: | MATTHEWS JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 November 2017 and 14 December 2017 |
DATE OF RULING: | 2 February 2018 |
CASE MAY BE CITED AS: | Re Bank Mansion Pty Ltd |
MEDIUM NEUTRAL CITATION | [2018] VSC 52 |
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PRACTICE AND PROCEDURE – Legal professional privilege – Production of documents in the course of a public examination – Solicitor’s invoices – Appropriate redactions – Inspection of documents for the purpose of determining the question – Ruling sustaining privilege in relation to some redactions and rejecting privilege in relation to others – Corporations Act 2001 (Cth), Division 1 of Part 5.9.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C R Brown | Mills Oakley |
| For the examinee George Konstas | Dr O Bigos | Robert James Lawyers |
JUDICIAL REGISTRAR MATTHEWS:
Introduction
The second plaintiff, Glenn Franklin, is the liquidator of the first plaintiff, Bank Mansion Pty Ltd (‘Bank Mansion’).
Pursuant to the provisions of Division 1 of Part 5.9 of the Corporations Act 2001 (Cth) (‘Act’), Mr Franklin is conducting public examinations under the supervision of the Court of a number of persons concerning the examinable affairs of Bank Mansion. One of those examinees is George James Konstas.
During the course of his examination, orders were made requiring Mr Konstas to produce a number of documents to the Court, including certain invoices (which are identified below) which had been rendered by the law firm of which he is a partner, Robert James Lawyers (‘RJL’), costs agreements between RJL and Bank Mansion, and documents relating to three specified trust account transfers from Bank Mansion to RJL.
This ruling concerns a claim that certain of the invoices to be produced to the Court by Mr Konstas are subject to legal professional privilege. Privilege was initially claimed over the whole of the invoices referred to in the orders, however that is no longer the case. Three of the invoices have been produced to the plaintiffs in their entirety and are no longer the subject of a privilege claim. In respect of another six invoices, privilege is no longer claimed over the whole of the documents however redacted copies have been produced to the plaintiffs, where the portions redacted are said to be those portions the subject of the privilege claim.
The plaintiffs dispute the privilege claim over the redacted portions of the subject invoices.
Mr Konstas has sworn an affidavit on 20 December 2017 (‘Konstas Affidavit’) in support of the privilege claim. Amongst other things, that affidavit exhibits a set of the redacted invoices,[1] and a set of unredacted invoices.[2] The plaintiffs have been served with a copy of the affidavit and exhibits, save for the exhibit which is the unredacted invoices.
[1]Exhibit GK-3.
[2]Exhibit GK-4.
The parties made submissions regarding this privilege claim on 23 November 2017, at which time privilege was claimed over the whole of the invoices. Following this hearing, Mr Konstas was to prepare an affidavit and the parties were to confer as to whether the privilege claim was maintained and, if so, whether it was disputed. The privilege claim was further discussed with counsel at the hearing on 14 December 2017. By that stage, the privilege claim was pressed only in respect of the redacted portions of six of the invoices.
By 14 December 2017, it was common ground between the parties that the only issue which I needed to determine was whether, based on the Konstas Affidavit and my review of the unredacted invoices, the redacted portions were privileged. Both counsel urged me to inspect the unredacted invoices for that purpose. At that time, I indicated that given the common ground between the parties, I saw my task as involving a review of the Konstas Affidavit and consideration of whether it was appropriate, in light of the relevant principles, for me to then review the documents to determine the privilege claim. If I considered it to be appropriate, I would then review the documents in Chambers and deliver a ruling. Both counsel indicated they did not wish to make any further submissions, unless the Court requested it. The plaintiffs did not contend that any question of waiver of legal professional privilege arises, and therefore it has not been necessary for me to consider issues connected with waiver.
Background
Michael Kokkinos is a director of Bank Mansion. He was also a director of Launch Projects Pty Ltd (‘Launch Projects’), the company which acted as the project manager for the property development undertaken by Bank Mansion at 9 Chesterville Rd Cheltenham (‘Project’). From the examinations conducted thus far, it appears that Mr Kokkinos was the main person performing the project management work for the Project. Mr Kokkinos is also being examined pursuant to the provisions of the Act.
Mr Konstas deposes that in the period July to December 2016, which is the period covered by the subject invoices (‘Relevant Period’), RJL provided legal services to Mr Kokkinos as client.[3] More of this will be said below.
[3]Konstas Affidavit [6].
A brief chronology is necessary for the purposes of this ruling:
(a) On 3 March 2016, the directors of Bank Mansion appointed Gideon Isaac Rathner as administrator of the company.
(b) At a meeting of creditors in July 2016, the creditors voted in favour of a deed of company arrangement, and a deed of company arrangement was executed on 11 July 2016 (‘DOCA’).[4] Under the terms of the DOCA, control of Bank Mansion reverted from Mr Rathner to Mr Kokkinos.[5]
[4]Konstas Affidavit [8].
[5]Konstas Affidavit [8], exhibit GK-1.
(c) Mr Kokkinos was a proponent of the DOCA.[6] He was also one of the parties to the DOCA.[7]
[6]Konstas Affidavit [6].
[7]Exhibit GK-1.
(d) On 2 August 2016, Evo Construction Pty Ltd (‘Evo’), one of Bank Mansion’s creditors, commenced proceedings in this Court seeking the termination of the DOCA and the appointment of Mr Franklin as liquidator of Bank Mansion (‘DOCA Proceeding’).[8]
(e) The defendants in the DOCA Proceeding were Bank Mansion, Mr Rathner, and Mr Kokkinos.
(f) On 16 December 2016, the Honourable Justice Robson delivered judgment terminating the DOCA and winding up Bank Mansion,[9] and Mr Franklin was appointed as liquidator.
[8]A copy of the Originating Process filed by Evo is exhibit GK-2 to the Konstas Affidavit. At [6] of the Konstas Affidavit, Mr Konstas refers to the DOCA Proceeding as S ECI 2017 0137, however this appears to be incorrect. The correct proceeding number is S ECI 2016 001160.
[9]Konstas Affidavit [10].
Applicable principles
Given the position ultimately adopted by the parties, it is not necessary for me to set out the applicable principles in detail.
The principles applicable to legal professional privilege were recently summarised by Associate Justice Derham in Mortgage Results Pty Ltd v Millsave Holdings Pty Ltd (Legal Privilege),[10] and I adopt that summary. I have also had regard to the often-cited summary of the principles as set out in AWB Ltd v Cole (No. 5).[11]
[10][2017] VSC 704 ‘(Mortgage Results’) [9].
[11](2006) FCR 30 at 47 [[44](12) (‘AWB v Cole’).
Claims to legal professional privilege over memoranda of fees/time ledgers/invoices
In Hodgson v Amcor; Amcor Ltd v Barnes (No. 2),[12] Justice Vickery summarised the situation regarding claims to legal professional privilege over memoranda of fees or time ledgers as follows:[13]
[12][2011] VSC 204 (‘Amcor’).
[13][2011] VSC 204 [56]–[63].
56.It is accepted that legal professional privilege attaches to a communication undertaken, or to a document brought into existence, for the dominant purpose of giving or obtaining legal advice. At first glance, a memorandum of professional costs or a time ledger prepared by a solicitor does not have this dominant purpose. It is prepared for the purpose of accounting to the client for work done, and rendering a bill of costs in respect of it.
57.However, and subject to meeting the dominant purpose test, legal professional privilege also protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client. In these cases, the protection extends to notes, memoranda or other documents made by a lawyer that relate to information sought by the client to enable him or her to advise.
58.The Amcor parties submitted that documents of the type in question are not ordinarily privileged. Reliance was placed on the observations of Tamberlin J in Lake Cumbeline Pty Ltd & Ors v Effem Foods Pty Ltd.[14] The documents which were the subject of the contested claim of privilege in that case included accounts for professional costs from a firm of solicitors. There were also memoranda and accounts from other solicitors relating to Victorian Supreme Court proceedings concerning the applicants and another party and accounts and memoranda of costs relating to another piece of litigation.
59.However, as illustrated by Lake Cumbeline, careful consideration needs to be undertaken of the form of the particular memorandum of costs in question.
60.In the usual case, a memorandum of fees is brought into existence, not for the dominant purpose of obtaining legal advice or for use in legal proceedings but principally for the purpose of recording and raising charges in respect of work which had been already completed. In such a case, where, for example, the memorandum of fees merely set out the dates and refers to the action taken in respect of which a charge is made, no privilege will attach. This was the case in Lake Cumbeline.
61.The same approach is taken in respect of other accounting records maintained by a solicitor. Thus in Packer v Deputy Commissioner of Taxation[15] the Full Court of the Supreme Court of Queensland held that legal professional privilege does not attach to entries in a solicitor’s trust account ledger except to the extent that such entries record communications referable to the relation of solicitor and client in a professional sense. The Court pointed out that the general nature of trust account ledgers is to record movement of money and to indicate matters in respect of which the movement occurs. The dominant purpose of trust account ledgers, in the usual case, is to record movement of money and to indicate matters in respect of which the movement occurs.
62.However, cases where memoranda or bills of costs rendered by a solicitor are in detailed form and disclose, either directly or indirectly, communications concerning matters that are protected by the privilege, including instructions given by a client to his solicitors, the advice given, approaches to potential witnesses and other such things, stand in an altogether different class. Such memoranda and bills of costs are likewise privileged.
63.Were the position to be otherwise, it would work to undermine the privilege and the public policy it seeks to advance. It would have the consequence that a party, while initially at least being able to seek legal advice and initiate the creation of documents for use in legal proceedings fully protected by legal professional privilege, would risk losing the benefits of the privilege when it comes time to pay for the legal services provided. If this was to occur, in my opinion the outcome would ‘substantially impede freedom of communication between client and legal advisers, which is at the very heart of the privilege, by discouraging free and uninhibited discussion of the issues and questions in the fear that these communications could later be disclosed to the severe disadvantage of the client’.[16]
[14](1994) 126 ALR 58 at 68 (‘Lake Cumbeline’).
[15](1985) 1 Qd R 275.
[16]Citing Tamberlin J in Lake Cumbeline (1994) 126 ALR 58 at [62], noting that Tamberlin J used the phrase in a slightly different context.
In that case, Justice Vickery perused the relevant memorandum of costs and the time ledger, and considered that they disclosed the nature or content of privileged material, and concluded that the memorandum of costs and time ledger were themselves privileged.[17]
[17][2011] VSC 204 [64] – [65].
While the documents in this case are described as invoices, they contain narrations and information which would sometimes be described as a memorandum of fees. In my view, there is no relevant distinction between the subject documents and the memorandum of fees referred to in Amcor.
Here, as noted above, I am not being asked to determine whether the whole of the invoices are privileged, just the redacted portions.
The Court’s power to inspect the disputed documents
Section 133 of the Evidence Act 2008 (Vic) (‘Evidence Act’) provides that if a question arises under Part 3.10 of the Evidence Act[18] relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.
[18]This part deals with privileges, including legal professional privilege.
In AWB v Cole, in relation to the Court’s inspection of documents, his Honour stated:[19]
The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power: Esso; see also Grant v Downs at 689. If the power is exercised, the court will need to recognise that it does not have the benefit of submissions or evidence that might place the document in its proper context. The essential purpose of such an inspection is to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege.
[19](2006) FCR 30 at 47 [44](12), citations omitted.
In Amcor, Justice Vickery stated the following principles as applying to his exercise of discretion to inspect the documents in that case:[20]
a)the nature and description of the document may be sufficient to entitle a Court to be guided solely by the oath of the party making discovery, that the whole of the document or the nominated redacted parts of it are privileged;
b)on the other hand, there may be other cases where either the nature of the document, or other material, may be sufficient to put in doubt the claim by the deponent that the whole of the document or redacted parts of it have the protected status. Alternatively, some uncertainty may arise as to the purpose for which documents the subject of the claim for legal professional privilege were prepared, or the precise basis of the claim sought to be established;
c)the court should not be hesitant to exercise such a power;
d)ultimately, however, it is for the court to determine whether the circumstances warrant inspection of some or all of the documents in question, either in their original form, in a proposed redacted form, or both, in order to determine the questions before it.
[20][2011] VSC 204 [24].
In Mortgage Results, one of the key issues facing his Honour was whether to inspect the documents over which privilege was claimed so as to determine the claim. Paragraphs [16] to [32] of that judgment contain a detailed canvassing of the authorities, following which Associate Justice Derham concluded that the decisions of the trial judge and the Court of Appeal in the Tabcorp cases[21] were:
… authority for the view that where the evidence in support of the claimed privilege is insufficient, then, depending on the circumstances, it may be an acceptable exercise of the discretion under s 133 to refuse to inspect the disputed documents because to do so would amount to the party claiming privilege delegating to the Court the task of establishing that privilege, or the Court filling gaps in the evidence in that party’s case.[22]
[21]Tabcorp Holdings Limited v State of Victoria [2013] VSC 302 and State of Victoria v Tabcorp Holdings Ltd [2013] VSCA 180 respectively.
[22]Mortgage Results [24].
In other words, the party claiming privilege needs to satisfy the Court, on evidence, of the basis for the claim to legal professional privilege. If that threshold is not reached, then the Court may decline to inspect the disputed documents.
Consideration
The relationship between RJL and Mr Kokkinos and the privilege claim generally
Mr Konstas deposes that during the Relevant Period, RJL provided legal services to Mr Kokkinos as the client. He says that Mr Kokkinos engaged RJL to provide him with legal advice in relation to the DOCA and in relation to the DOCA Proceeding.[23]
[23]Konstas Affidavit [6].
Mr Konstas states that in providing the services to which the invoices related, ‘RJL acted for Mr Kokkinos solely as the proponent of the DOCA and the defendant named in the DOCA Proceeding. RJL did not act for or advise Mr Kokkinos in any other capacity (eg his capacity as Director of Bank Mansion), nor did it act for or advise Bank Mansion.’[24] As I understand it,[25] while Bank Mansion was a party to that proceeding, it was represented by another firm of solicitors, and Mr Kokkinos was the only defendant in that proceeding for whom RJL acted.
[24]Konstas Affidavit [19].
[25]Exhibit GK-2. Also, from reviewing the orders made by the Court on 16 December 2016 in the DOCA Proceeding.
Mr Konstas did not produce, during the course of his examination, a costs agreement between RJL and Mr Kokkinos. No order was made that he do so. There were orders made that he produce any costs agreements between RJL and Bank Mansion, however these were not produced and Mr Konstas deposes that there are no documents falling within this category.[26] I infer that there is no written costs agreement between RJL and Mr Kokkinos, since if there was one, I would expect it to have been exhibited to the Konstas Affidavit and referred to therein (as it would have been relevant to the scope of the retainer), irrespective of whether an order had been made for its production during the examination.
[26]Konstas Affidavit [2(g), 3(g)].
Accordingly, the evidence as to the engagement of RJL by Mr Kokkinos, the scope of that engagement, and the legal advice and services provided pursuant to it, is to be found in the Konstas Affidavit.
The plaintiffs did not contend that Mr Kokkinos was not the client for the purposes of the legal advice and services provided which are covered by the invoices. It was common ground that the subject invoices were paid by Bank Mansion, however this does not mean that Bank Mansion is the client to whom the legal advice/services were provided. It is the client of the legal advice and services who is able to make and maintain a claim to legal professional privilege, not the lawyer (other than often being the one communicating and at times substantiating the claim) or the person who paid the lawyer’s fees.
At the hearing on 23 November 2017, counsel for the plaintiffs submitted that as a third party payer of the subject invoices within the meaning of s 171 of Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (‘Uniform Law’), Bank Mansion may have rights, under s 198 of the Uniform Law, to make an application to the relevant court or tribunal (in this case, presumably the Costs Court) for an assessment of the legal costs. Counsel also referred to sub-section (6) of s 198 of the Uniform Law, which provides that if the third party payer is a ‘non-associated third party payer’, the law practice must provide the third party payer, upon a written request, with ‘sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs assessment under this section’.
As a consequence of these provisions, and without specifically addressing whether Bank Mansion was a ‘non-associated’ third party payer, the plaintiffs submitted that as they had a right to request ‘sufficient information’ from RJL, this meant that either the invoices were not privileged, or that Mr Kokkinos was not able to maintain any claim to privilege as against Bank Mansion, or that privilege would be waived.
By the hearing on 14 December 2017, these submissions were not pressed by the plaintiffs in the context of the public examinations being conducted in this proceeding, although it was noted that if an assessment process was to take place, the issue may be agitated by the plaintiffs. Rather, the plaintiffs stated that for the purposes of the examination, all that was in issue was whether the redacted portions of the subject issues were privileged on the basis that they may disclose, directly or indirectly, privileged communications.
Mr Konstas states that the communications between RJL and Mr Kokkinos in relation the DOCA and the DOCA Proceeding are privileged because they were:
(a) For the dominant purpose of the provision of legal advice by RJL to Mr Kokkinos, and are protected under s 118 of the Evidence Act; and/or
(b) For the dominant purpose of Mr Kokkinos being provided with professional legal services relating to the DOCA Proceeding, in which he was named as a party.
I am satisfied that RJL was providing legal advice and services to Mr Kokkinos personally during the Relevant Period and that this relationship likely led to communications which were privileged.
The privilege claim in respect of invoices for legal services and whether I should inspect the redacted portions of the invoices
While the initial submissions made by counsel on 23 November 2017 concerned, inter alia, whether the invoices themselves were privileged, a claim to privilege over the whole of the invoices was not pressed.
Nonetheless, in my view, whether an invoice for legal advice or legal services is in itself likely to be privileged will depend on the circumstances of each case. Ordinarily, such an invoice is unlikely to have been created for the dominant purpose of obtaining or giving legal advice or legal services. It is more likely that the dominant purpose for the creation of the invoices is for the law firm to be paid for its services. In some circumstances, it may be the case that the whole of the invoice is protected.[27] It is not necessary for me to determine this, given the position now adopted by the parties, but whether the whole of the invoice could be privileged would depend on the nature and content of the particular document and the circumstances of its creation.
[27]Amcor [62], cited in paragraph 14 above.
However, it may be the case that the invoices contain information which may disclose, directly or indirectly, privileged communications. In such instances, that would be protected, as outlined above.[28]
[28]In paragraph [62] of Amcor, cited in paragraph 14 above.
In submissions, the plaintiffs relied on Lake Cumbeline to contend that the subject invoices were not privileged. However, Lake Cumbeline concerned the question of whether, in producing the memoranda of fees, legal professional privilege had been waived in the underlying documents/work referred to in those memoranda. That is not the subject of this case.
The plaintiffs also relied on Newtronics Pty Ltd v Gjergja and ors[29] in support of the subject invoices not being privileged. However, the circumstances in Newtronics were quite different to those obtaining here. That case concerned a claim to legal professional privilege over a bill of costs in assessable (or taxable) form produced in Federal Court proceedings to have the costs assessed, and whether in separate Supreme Court proceedings where the bill had been discovered, its production could be resisted on the grounds of privilege. The question there was whether a bill of costs in that form could be privileged and, if so, whether privilege had been waived. Associate Justice Mukhtar held that the grounds for a privilege claim had not been established on the evidence and, in any event, privilege (if it subsisted) had been waived. That is not the same situation here: this case concerns solicitor/client invoices, not a court document prepared for a specific court-related purpose as in Newtronics. I address below whether the evidence adduced here is sufficient to establish the basis for the privilege claim.
[29][2011] VSC 594 (‘Newtronics’).
Mr Konstas deposes that each invoice sets out details of the tasks performed by RJL. He says that ‘the narrations include details that disclose, either directly or indirectly, communications concerning matters that are protected by legal professional privilege between Mr Kokkinos and RJL. The confidential communications include instructions given by Mr Kokkinos to RJL and advice provided to him for the dominant purpose of providing legal advice and professional legal services relating to the DOCA Proceeding.’[30]
[30]Konstas Affidavit [11]. Presumably, Mr Konstas was referring to the redacted narrations.
This description is not particularly detailed and could be seen as going no further than somewhat formulaic language typically used when making a privilege claim. In some instances, that has meant that some judges have not considered the threshold for establishing the privilege claim so as to justify inspecting the documents to have been met.[31]
[31]For example, Mortgage Results and Newtronics.
However, in the circumstances of this case, I am satisfied that the Konstas Affidavit sufficiently establishes that parts of the invoices may contain privileged information and that the threshold has been met.
Further, I am satisfied that it is appropriate for me, as an exercise of my discretion, to inspect the unredacted six invoices for the purposes of determining the privilege claim, for the following reasons:
(a) It is difficult to see how Mr Konstas could have gone much further in his affidavit to detail the privilege claim for each redacted portion, without revealing the material said to be privileged. As stated by Justice Vickery in Amcor:[32]
[32][2011] VSC 204 at [36]–[37].
On the one hand, the grounds of the privilege claimed must be sworn in terms which identify the legal basis upon which the claim is made and provide a sufficient description of the elements of the document relied upon to support the claim made on that basis.
On the other hand, a claiming party cannot be compelled to provide such particularity as would compromise the very privilege that is claimed. It would defeat to [sic] object of the protection, and hence the public purpose which it seeks to advance, if the description required was such as to enable the other party to discover the contents or effect of the document, and thereby compromise its confidential status.
(b) The task is not onerous: there are six invoices the subject of this ruling and they are not voluminous;
(c) The task of establishing the privilege has not been delegated to the Court, and nor am I being asked to fill in gaps in the evidence;[33]
(d) Inspecting the redacted portions is the most efficient method of determining the claim, which is clearly in keeping with the objects of the Civil Procedure Act 2010 (Vic).
[33]See paragraph 21 above.
The privilege claim in respect of the redacted portions of the six invoices
The question for determination comes down to whether the narrations which have been redacted in the subject invoices disclose, directly or indirectly, communications which are protected by legal professional privilege.
Here, the basis for the privilege claim has been established in the Konstas Affidavit and the only way to determine it for the redacted portions is to inspect those portions.
On 2 November 2017, I made orders (inter alia) directing Mr Konstas to produce invoices numbered 33277, 33447 and 33888. On the same date, I made orders directing Mr Konstas to produce documents relating to three specified trust account transfers from Bank Mansion to RJL. Mr Konstas deposes that the trust account statements and receipts have been produced and that the trust account statements refer to invoices numbered 34245, 34636 and 34469.[34] Although not specified in the orders, those invoices would, in my view, fall within the category of documents also ordered on 2 November 2017, and so Mr Konstas has produced those in redacted form to the plaintiffs but also makes a privilege claim in respect of the redacted portions. No difference arises between the two groups of invoices for the purposes of this exercise. These are the six invoices the subject of this determination.
[34]Konstas Affidavit [4].
I have reviewed the six invoices in their entirety. The relevant parts of the invoices for this exercise are the various narrations describing the work performed. Each invoice consists of a number of narrations, set out as dot points. Occasionally, a dot point will contain a number of discrete tasks, usually separated by a comma. In this decision, where appropriate I refer to these as items within the dot point narration.
I have concluded that most of the redacted narrations are privileged, in that they directly or indirectly disclose communications which are protected by privilege. It is not possible or appropriate for me to set out the detail of why I have come to that conclusion without revealing the very information which the privilege is designed to protect. Nor do I consider it necessary to do so. I am satisfied that the redactions I have held to be privileged fall within the category as I have generally described it, which is consistent with the authorities set out above.
There are a small number of redactions where I have concluded that the entire dot point narration, or specific items within it, are not privileged. My findings are set out below, in respect of each of the six invoices, along with a brief explanation for why I am not satisfied that the particular redacted narrations or items are privileged.
Invoice number 33277
Invoice number 33227 is dated 29/7/16 and is expressed to be for the period ending 25 July 2016. It contains 13 dot point narrations, 5 of which have been redacted.
Dot point narrations 1, 3, 6 and 7 are privileged.
Dot point narration 8 is not privileged. There is nothing to indicate why correspondence with the third parties named in the narration would be privileged, given the content of dot point narrations 10 and 11 which refer to those parties and which have not been redacted. The document is not referred to as a draft. On its face, therefore, this narration appears to refer to an email to the named third parties.
Invoice number 33447
Invoice number 33447 is dated 22/8/16 and is expressed to be for the period ending 22 August 2016. It contains 44 dot point narrations, 6 of which have been redacted.
All of the dot point narrations which have been redacted are privileged, being dot points 5, 11, 16, 27, 31 and 33.
Invoice number 33888
Invoice number 33888 is dated 28/9/16 and is expressed to be for the period ending 22 September 2016. It contains 31 dot point narrations, 18 of which have been redacted.
Dot point narrations 1, 5, 7, 8, 9, 10, 15, 17, 19, 21, 23, 25, 26, 27, 29, 30 and 31 are privileged.
Dot point narration 24 is not privileged. It does not reveal instructions, advice or services, either directly or indirectly. It refers to an email (not expressed to be a draft) to another law firm, who I understand[35] acted for the other defendants in the DOCA Proceeding. The communication is therefore not confidential (an essential element of a privilege claim). There is no evidence before the Court to establish that privilege could obtain in those circumstances. For example, there is no evidence to establish whether common interest privilege or joint privilege may apply to these communications. Nor was any such claim referred to in submissions. It is well established that the onus is on the person claiming the privilege to make out the grounds for the claim,[36] and in my view Mr Konstas has not given any evidence (beyond what I have already described in these reasons) which would support the privilege claim in respect of this narration by explaining why communications with the other law firm could or would be privileged. I also note that there are a number of instances of similar redactions (referred to below), but there are also instances where communications with the solicitors for the other defendants in the DOCA Proceeding are not redacted. In a number of instances, the difference between items that have been redacted and similar ones which have not been redacted is not readily discernible.
[35]From viewing a copy of the orders made in the DOCA Proceeding on 16 December 2016.
[36]AWB v Cole (2006) FCR 30 at 47 [44](1); Mortgage Results [2017] VSC 704 [9(a)].
Invoice number 34245
Invoice number 34245 is dated 28/10/16 and is expressed to be for the period ending 27 October 2016. It contains 64 dot point narrations, 26 of which have been redacted.
Dot point narrations 7, 11, 13, 14, 18, 20, 28, 35, 36, 40, 41, 43, 47, 48, 52, 53, 54, 55, 56, 58, 59, 60, 62 and 64 are privileged.
Dot points 10 and 21 are not privileged, for the same reasons as set out in paragraph 55 above.
Invoice number 34636
Invoice number 34636 is dated 12/12/16 and is expressed to be for the period ending 9 December 2016. It contains 73 dot point narrations, 30 of which have been redacted.
Dot point narrations 1, 2, 6, 8, 9, 13, 16, 17, 21, 24, 25, 26, 27, 28, 33, 39, 46, 47, 49, 56, 60, 63, 66, 71 and 72 are privileged.
Dot point narration 11 is not privileged except for the last item in that narration. The first two items in that narration are communications with third parties and do not reveal anything privileged.
Dot point narration 32 is not privileged. The first item in that narration merely recites a court attendance and is not privileged. The second item refers to a conference with ‘counsel and fellow defendants’ and is not privileged, for the same reasons as set out in paragraph 55 above. There has been no evidence led as to why communications between the defendants in the DOCA Proceeding, their lawyers or their counsel may be privileged.
Dot point narration 42 is privileged, except for the last item of that narration. The task described in that last item is not described in a way which would reveal privileged communications.
Dot point narration 58 is privileged, except for the last item of that narration. That item refers to a telephone call from the solicitors for the other defendants in the DOCA Proceeding and is not privileged for the same reasons as set out in paragraphs 55 and 62 above.
Dot point narration 59 item refers to a telephone call from the solicitors for the other defendants in the DOCA Proceeding and is not privileged, for the same reasons as set out in paragraphs 55 and 62 above.
Invoice number 34469
Invoice number 34469 is dated 29/11/16 and is expressed to be for the period ending 24 November 2016. It contains 92 dot point redactions, 23 of which have been redacted.
Dot point narrations 2, 7, 8, 10, 11, 12, 37, 41, 58, 59, 68, 80, 82, 84, 86 and 87 are privileged.
The first three items of dot point narration 3 are privileged, and items 4 to 6 of it are not. The tasks described in the fourth and sixth items are not described in a way which would reveal privileged communications. The fifth item refers to communications with the solicitors for the plaintiff in the DOCA Proceeding, is not referred to as a draft, and is therefore not privileged.
Dot point narration 21 is privileged except for the first item of that narration. It describes a telephone call from counsel for the other defendants in the DOCA Proceeding, and is not privileged for the same reasons as set out in paragraphs 55 and 62 above.
The second and third items of dot point narration 22 are privileged, and the first and fourth items of dot point narration 22 are not privileged. The first item refers to a telephone call from someone of the law firm acting for the other defendants in the DOCA Proceeding, and is not privileged for the same reasons as set out in paragraphs 55 and 62 above. The tasks described in the fourth item are not described in a way which would reveal privileged communications.
Dot point narration 25 is privileged, except for the second last item of that narration. It describes emails with the solicitors for the plaintiff in the DOCA Proceeding, is not described as a draft, and is therefore not privileged.
The first item of dot point narration 52 is privileged but the remainder of that narration is not. The second item refers to email exchanges (not referred to as drafts) with the Court and the other law firms involved in the DOCA Proceeding (ie for the plaintiff and for the other defendants) and are therefore not privileged. The third item refers to a telephone call with someone from the law firm acting for the other defendants in the DOCA Proceeding, and is not privileged for the same reasons as set out in paragraphs 55 and 62 above.
Dot point narration 72 is privileged except for the last item of that narration. It refers to an email from the law firm acting for the other defendants in the DOCA Proceeding and is not privileged for the same reasons as set out in paragraphs 55 and 62 above.
Dot point narration 85 is privileged except for the second last item of that narration. That item refers to an email from the solicitors for the other defendants to the solicitors for the plaintiff and RJL in the DOCA Proceeding and is not privileged.
Conclusion
Orders will be made for the production of revised versions of the invoices with the narrations or items found not to be privileged to be disclosed to the plaintiffs.
Counsel for the plaintiffs and Mr Konstas are requested to confer regarding an appropriate form of orders and to submit a draft form of order reflecting this decision to my Associate. The timing for production of documents should be such as to enable the plaintiffs to have them at the next date scheduled for the public examinations, which is 8 February 2018.
I will also hear from counsel (at the next examination on 8 February 2018, if convenient) as to costs.
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