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:

1. 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.

1. 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.  

1. 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.  

1. 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 of action.  The plaintiff sought inspection of documents constituting communications between the defendants and their solicitor.  The defendants claimed privilege, but the plaintiffs contended that, it being a joint privilege either because of a joint retainer of the firm or by reason of a common interest in the relevant subject matter, the defendants could not on the basis of it resist inspection by the plaintiff.  

   [1][2000] 1 VR 92

1. In that case the court constituted by Warren J held that there was a joint retainer of the firm by both groups of companies, and that where the same firm of solicitors provided legal advice to two clients on the same matter, including transactions between the clients, then at least prima facie joint privilege attaches to communications between either or both of the clients and the firm, even notwithstanding, as was the case in that litigation, that the respective clients retained different solicitors at the firm.  The question of Chinese walls was therefore raised.

1. Her Honour said: 

Privilege does not attach to communications against a person having a joint interest.  The joint interest will encompass relationships falling in a special category, including as between partners and between a trustee and cestui que trust.  A joint venture is in the nature of a partnership in some respects.  It involves the sharing of profits and the division of responsibilities within a relationship.  The nature of the arrangement of a joint venture also involves special characteristics of trust and good faith analogous to that of a trust.  If privilege does not attach to communications against a person having a joint interest where the relationship is one of partnership or trust, then logically the attachment cannot arise where the relationship constitutes a joint venture.[2]

Her Honour then ordered that the documents in question be produced.

[2]At 104, para [38]

1. A case with a similar result was that of the South Australian decision of Debelle J in The Shed People Pty Ltd v Turner & Ors.[3]  In that case his Honour at the conclusion of his judgment said: 

… parties who grant a joint retainer to solicitors retain no confidence as against one another: if they subsequently fall out and sue one another, they cannot claim privilege, but against all the rest of the world they can maintain a claim to privilege for documents otherwise within the ambit of legal professional privilege.

[3](2000) ACSR 609

1. It seems clear from those and other authorities that, were Mr Bernard Robertson to seek to prevent Mr Grant Robertson having access to the legal advice in question, that is the advice proffered by Mr Beaumont, he would fail in such an endeavour.   Mr Grant Robertson would undoubtedly be entitled to have access to that information just as would Mr Bernard Robertson if Mr Grant Robertson attempted to prevent him having access to it.

1. For that reason too it would be quite contrary to principle for a court in interlocutory proceedings to clothe with such privilege as would prevent a joint privilege holder, who is claiming access to legal advice during the discovery process, from having that access as against another joint holder of the privilege.

1. The present circumstances, however, are somewhat different from those to which I have just addressed my attention.  In the present circumstances Mr Grant Robertson, as I apprehend his position, seeks to adduce the relevant evidence from Mr Beaumont so that he may use it against Mr Bernard Robertson.  That does, I think, place these circumstances in a position where they can be properly distinguished from those which obtained in the authorities to which I have referred.

1. As Mr McClelland for the defendants put in his argument, the courts have consistently referred to the privilege known as legal professional privilege as a very important aspect of the conduct of litigation in an adversarial system.  I cite by way of example only the well‑known passage in the judgment of Gibbs CJ, in Attorney‑General for the Northern Territory v Maurice & Ors,[4] a case concerning waiver and therefore distinguishable in some important respects from the present case.

   [4](1986) 161 CLR 475

1. The Chief Justice said this: 

The rule which recognises legal professional privilege goes back at least to the time of Elizabeth I … , but that does not mean that it is archaic, technical or outmoded.  Without the privilege, no one could safely consult a legal practitioner and the administration of justice in accordance with the adversary system which prevails at common law would be greatly impeded or even rendered impossible.  This has been recognised in many cases.[5]

And His Honour went on to cite some of those many cases.

[5]At 480

1. In the circumstances presently before me, it seems to me that the importance of the rule relating to legal professional privilege would be diminished impermissibly were I to allow Mr Beaumont to give evidence on behalf of one party, one joint holder of the privilege, against another party who was likewise a joint holder of the privilege.   That, it seems to me, would adversely impact upon the important principles which are sought to be preserved by the rule relating to legal professional privilege.   Accordingly, in my opinion the objection to the evidence should be upheld.

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