Robertson v Robertson & Ors (Ruling No 1) - [2009] VSC 118

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 10039 of 2007

GRANT ANTHONY ROBERTSON	Plaintiff
v
BERNARD BRESLIN SPENCE ROBERTSON & ORS	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 MARCH 2009
DATE OF RULING:	6 MARCH 2009
CASE MAY BE CITED AS:	ROBERTSON v ROBERTSON (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 118

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PRACTICE AND PROCEDURE – Legal professional privilege – Joint privilege – Parties sought legal advice from senior counsel – Whether plaintiff can adduce evidence against the defendant at trial - Yunghanns & Ors v. Elfic Pty Ltd & Ors [2000] 1 VR 92 and The Shed People Pty Ltd v. Turner & Ors (2000) ACSR 609 distinguished - Attorney‑General v. Maurice (1986) 161 CLR 475 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Pearce SC with Mr R. Hay	Mills Oakley
For the Defendants	Mr D. Collins SC with Mr A. McClelland	Brian Ward & Partners

HIS HONOUR:

In this case a point has arisen out of an approach made jointly by Mr Bernard Robertson, the first defendant in this litigation, and his son, Grant Robertson, the plaintiff, to Mr George Beaumont of Queen's Counsel seeking and obtaining from him legal advice. Mr Beaumont has been called by the plaintiff to give evidence, as I understand it, touching upon that legal advice. Objection has been taken on behalf of the defendants to Mr Beaumont giving the evidence which the plaintiff seeks to adduce from him. The point is one of some little technical difficulty. I have been greatly assisted by able arguments on both sides.

For the plaintiff, Mr Pearce of Senior Counsel has submitted that the position of joint holders of privilege is such that the one cannot prevent the other having full access to the privileged information, the privileged document, the privileged material. As a general proposition, I accept the accuracy of that proposition. Thus if there is a dispute between joint holders of a privilege about certain information because one of those holders has prevented full access to that information by the other holder, the holder that has been partially or wholly shut out may obtain an order requiring the other joint holder to make the information or material available.

By the same reasoning, if in litigation one party claims privilege in a document that is otherwise discoverable, and the privilege is claimed against a joint holder of the privilege, the court will require production to the other joint holder of the document in respect of which privilege is claimed. There are a number of authorities to that effect, and some at least of them have been drawn to my attention during the course of argument this afternoon.

One of those authorities is that of Yunghanns & Ors v Elfic Pty Ltd & Ors.[1]. That case was one in which the plaintiffs claimed damages against the defendants alleging breach of contract and fiduciary duty and other causes…

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.

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Details

Case: [2009] VSC 118
Decision Date: 6 March 2009

CaseChat Overview and Summary

The case of Robertson v Robertson & Ors involved a dispute regarding the admissibility of evidence obtained from legal advice given to multiple parties. The plaintiffs, Robertson and others, sought to adduce evidence against the defendant, Robertson, who claimed that the evidence was protected by legal professional privilege. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the privilege claimed by the defendant could be maintained when the evidence in question was obtained from advice given to multiple parties, including the plaintiff.

The court examined whether the privilege extended to the plaintiffs who had received the legal advice in common with the defendant. The court distinguished the case from Yunghanns & Ors v. Elfic Pty Ltd & Ors and The Shed People Pty Ltd v. Turner & Ors, where the privilege was held to apply to advice given to multiple parties. The court found that the rationale of Attorney-General v. Maurice, which held that the privilege could be maintained in certain circumstances, was relevant but not determinative. The court ultimately concluded that the privilege was not maintained where the plaintiffs had received the advice in common with the defendant and the advice was obtained for the purpose of giving legal advice to the defendants.

The court's reasoning was based on the nature of the privilege and the purpose for which the advice was obtained. The court found that the privilege was intended to protect the confidentiality of legal advice and that the advice in question was obtained for the purpose of giving legal advice to the defendants. The court held that the privilege was not maintained where the plaintiffs had received the advice in common with the defendant and the advice was obtained for the purpose of giving legal advice to the defendants. The court's decision was based on the specific circumstances of the case and the nature of the privilege.

The final orders of the court were that the defendant's claim for legal professional privilege was dismissed and that the plaintiffs were entitled to adduce the evidence in question at the trial. The court's decision highlights the importance of understanding the nature of legal professional privilege and the purpose for which advice is obtained when dealing with claims of privilege in multi-party disputes.

Orders