Selective Meat Traders v Purcell
[2017] VMC 12
•16 JUNE 2017
| IN THE MAGISTRATES’ COURT OF VICTORIA AT DANDENONG |
| CIVIL DIVISION |
Case No. G13163865
| SELECTIVE MEAT TRADERS PTY LTD (ACN 158 830 123) | PLAINTIFF |
| v | |
| ANTHONY PURCELL AND MARGARET PURCELL (Trading as Purcell & Purcell) | DEFENDANTS |
| MAGISTRATE: | MAGISTRATE MACCALLUM |
| WHERE HELD: | DANDENONG |
| DATE OF HEARING: | 24 MAY 2017 |
| DATE OF DECISION: | 16 JUNE 2017 |
| CASE MAY BE CITED AS: | SELECTIVE MEAT TRADERS V PURCELL & ANOR |
| MEDIUM NEUTRAL CITATION: | [2017] VMC012 |
RULING
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | N/A | WISEWOULD MAHONEY LAWYERS |
| For the Defendant | GUYMER LAWYERS | MR. SQUIRRELL |
HER HONOUR
This is an application by summons dated 24 April 2017 by the Defendants.
I have considered the written and verbal submissions of the parties, all of the documents filed with the Court, the applicable legislative provisions, rules of procedure, the case law referred to by the parties and other relevant case law referred to in this ruling. I rule as follows.
The Defendants seek orders that there has been a failure by the Plaintiff to properly comply with the order for discovery made on 21 February 2017 and that the proceeding should be dismissed with costs. The Plaintiff denies that its Affidavit of Documents is deficient. Although, for the reasons given below, I have ruled that the Affidavit of Documents of the Plaintiff is deficient in certain respects, the defects in compliance may be rectified by further orders for discovery, and any prejudice to the Defendants cured by appropriate orders for costs.
Alternatively, the Defendants’ seek discovery by the Plaintiff of the following categories of documents. They are:
a.a complete copy of the file of the law firm, Ryan Carlisle Thomas, which is alleged to have acted previously on behalf of the Plaintiff in relation to the alleged debt owed by Manor Lakes Meat Specialists Proprietary Limited (“Manor Lakes Meat”) and\or Jason Wendt;
b.a complete copy of the file of Ryan Carlisle Thomas, which is alleged to have acted on behalf of the Plaintiff in relation to the alleged undertaking given by the Defendants on 13 September 2013 and referred to in paragraph 6 of the Statement of Claim;
c.a complete copy of the file of the Plaintiff’s current solicitors, Guymer Lawyers, and their predecessors Meier Denison Guymer in relation to:
i.the debts allegedly due by Manor Lakes Meat and/or Jason Wendt;
ii.the alleged undertaking provided by the Defendants on 13 September 2013;
iii.the proceedings at VCAT (No C116/2014) brought by the Plaintiff against Manor Lakes Meat, referred to in paragraph 7 to 9 of the Statement of Claim and paragraphs 7 to 9 of the Defence;
d.all files and documents relating to any demands made by the Plaintiff and\or its servants or agents against Ryan Carlisle Thomas in relation to the alleged debt owed by Manor Lakes Meat to the Plaintiff and the alleged undertaking made by the Defendants on 13 September 2013.
The Defendants do not dispute that material in these files is privileged. They seek discovery on the basis that client legal privilege has been waived as a result of the matters pleaded in the Statement of Claim. The Plaintiff resists the application on the basis that there are no facts in issue between the parties that would make the entire files of the Plaintiff’s current and former solicitors relevant and discoverable.
ORDERS OF JUDICIAL REGISTRAR
On 21 February 2017, a Judicial Registrar of this Court granted the Defendants’ application for production of the solicitor’s file note of Ryan Carlisle Thomas dated 13 September 2013, and ordered amongst other things that the parties each make, file and serve an affidavit of documents on or before 4pm on 28 March 2017.
During the hearing, Mr McGirr made verbal application for a transcription of the solicitor’s file note on the basis that it is indecipherable. The Plaintiff submits that the Court should not order a transcription of the file note, on the basis that it is not within the power of the Plaintiff to provide any such transcription.
RULES OF DISCOVERY
The Civil Procedure Act 2010 gives the Court broad powers in respect of discovery. Section 55(1) of the Civil Procedure Act states:
55Court orders for discovery
(1)A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.
(2)Without limiting subsection (1), a court may make any order or give any directions—
(a)requiring a party to make discovery to another party of—
(i)any documents within a class or classes specified in the order; or
(ii)one or more samples of documents within a class or classes, selected in any manner which the court specifies in the order;
(b)relieving a party from the obligation to provide discovery;
(c)limiting the obligation of discovery to—
(i)a class or classes of documents specified in the order; or
(ii)documents relating to one or more specified facts or issues in dispute; or
(iii)some or all of the issues set out in a statement of issues filed in the proceeding;
(d)that discovery occur in separate stages;
(e)requiring discovery of specified classes of documents prior to the close of pleadings;
(f)expanding a party's obligation to provide discovery;
(g)requiring a list of documents be indexed or arranged in a particular way;
(h)requiring discovery or inspection of documents to be provided by a specific time;
(i)as to which parties are to be provided with inspection of documents by another party;
(j)relieving a party of the obligation to provide an affidavit of documents;
(k)modifying or regulating discovery of documents in any other way the court thinks fit.
(3)A court may make any order or give any directions requiring a party discovering documents to—
(a)provide facilities for the inspection and copying of the documents, including copying and computerised facilities;
(b)make available a person who is able to—
(i)explain the way the documents are arranged; and
(ii)help locate and identify particular documents or classes of documents.
(4)A court may order or direct a party to pay to another party an amount specified or determined by, or in accordance with, the order or direction in relation to the costs of discovery in any manner considered appropriate by the court, including, but not limited to, payment in advance of an amount to the other party for some or all of the estimated costs of discovery.
(5) Without limiting any other power of a court to make costs orders, a court may order or direct that costs payable under an order or a direction under subsection (4) are recoverable as costs in the proceeding.
The relevant provisions from the Magistrates’ Court General Civil Procedure Rules 2010 are set out below.
DISCOVERY AND INSPECTION OF DOCUMENTS
29.01Definition
In this Order possession means possession, custody or power.
29.01.1Scope of discovery
(1)Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3).
(2)Paragraph (1) applies despite any other rule of law to the contrary.
(3)Without limiting Rule 29.05, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given—
(a)documents on which the party relies;
(b)documents that adversely affect the party's own case;
(c)documents that adversely affect another party's case;
(d)documents that support another party's case.
(4)Notwithstanding paragraph (3)—
(a)if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document;
(b)a party required to give discovery who has, or has had in the party's possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason only of the fact that the original or any other copy is discoverable.
(5)For the purposes of paragraph (3), in making a reasonable search a party may take into account—
(a)the nature and complexity of the proceeding;
(b)the number of documents involved;
(c)the ease and cost of retrieving a document;
(d)the significance of any document to be found; and
(e)any other relevant matter.
…..
29.04Affidavit of documents
(1)An affidavit of documents for the purpose of making discovery of documents must be in Form 29B and must—
(a)identify the documents which are or have been in the possession of the party making the affidavit;
(b)enumerate the documents in convenient order and describe each document or, in the case of a group of documents of the same nature, describe the group, sufficiently to enable the document or group to be identified;
(c)distinguish those documents which are in possession of the party making the affidavit from those that have been but are no longer in the party's possession, and as to any document which has been but is no longer in the possession of the party, state when the party parted with the document and the party's belief as to what has become of it;
(d)if the party making the affidavit claims that any document in the party's possession is privileged from production, state sufficiently the grounds of the privilege.
(2)If a party required to give discovery in accordance with Rule 29.01.1 does not, in making a reasonable search as required by Rule 29.01.1, search for a category or class of document, the party must include in the affidavit of documents a statement of—
(a)the category or class of document not searched for; and
(b)the reason why.
RELEVANCE – THE FACTUAL ISSUES FOR DETERMINATION
10.The threshold question for determination is whether each of the categories of documents sought by the Defendants are relevant to facts in issue in this proceeding. The provisions of the Evidence Act 2008 with respect to relevance state:
Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.
Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
11.When assessing the probative value of evidence, a Magistrate as the trier of fact must assume that the evidence is both credible and reliable.[1] Further, the Magistrate must assess “the possible use to which the evidence might be put, which is to say how it might be used…taken at its highest.”[2]
[1]Imm v the Queen [2016] HCA 14, paragraphs 39 and 48.
[2] Ibid, paragraph 44.
12.The main factual questions for determination in this proceeding are:
a.Did the Defendants give a solicitor’s undertaking to the Plaintiff’s former solicitors, Ryan Carlisle Thomas, that:
i.The proceeds of the sale of the home of Mr Wendt and his wife were being held in the Defendants’ trust account; and
ii.The funds would not be released until there was an order of the Court or an agreement between the Plaintiff and Mr Wendt to provide for payment to the Plaintiff of the money owned by Manor Lakes Meat;
b.How was the undertaking given? Was it oral or in writing?
c.What were the terms of the undertaking?
d.Has the undertaking been breached?
e.If the undertaking has been breached, what is the loss and damage?
f.Alternatively, did the Defendants by their conduct in giving the alleged undertaking, mislead and deceive the Plaintiff? If so, what is the loss and damage?
THE PLEADINGS
13.The pleadings define the dispute between the parties as follows.
14.By a Complaint issued on 18 November 2016, the Plaintiff brings a proceeding against the Defendants for breach of a solicitor’s undertaking and breach of the Australian Consumer Law.
15.The Defendants admit that in or about April 2013 until 22 August 2014 they acted on behalf of Jason Wendt in a matrimonial proceeding involving his formal wife Tracy Wendt. It is alleged by the Plaintiff that Mr Wendt was the sole director of Manor Lakes Meat. The Defendants state that they have never acted on behalf of Manor Lakes Meat. It is common ground that Manor Lakes Meat was deregistered on 19 October 2014.
16.The Plaintiff, who was at the time represented by Ryan Carlisle Thomas, alleges that Manor Lakes Meat was indebted to the Plaintiff for the purchase of goods supplied and delivered by the Plaintiff (paragraph 4, Statement of Claim).
17.The Plaintiff alleges that on 29 July 2013 the Defendants wrote to Ryan Carlisle Thomas advising that a matrimonial settlement was anticipated and requested that the Plaintiff withhold issuing proceedings (paragraph 5, Statement of Claim).
18.It is alleged that on 13 September 2013, the Defendants gave an undertaking to Ryan Carlisle Thomas that the proceeds of the sale of the home were being held in the Defendants’ trust account and that the funds would not be released until there was an order of the Court or an agreement between the Plaintiff and Mr Wendt to provide for payment to the Plaintiff of the moneys owed by Manor Lakes Meat. It is alleged that the undertaking was given orally in a conversation which occurred on 13 September 2013 by telephone conversation when Mr Christian Farrelly, then a solicitor of Ryan Carlisle Thomas, telephoned and spoke to Mr Anthony Purcell of the Defendants’ firm (Statement of Claim, paragraph 6).
19.It is alleged that the Plaintiff commenced proceedings in the Civil Claims List at VCAT against Manor Lakes Meat by application dated 26 February 2014, and on 8 May 2014, VCAT made an Order against Manor Lakes Meat in the sum of $35,363.87 (paragraphs 7 and 8, Statement of Claim). The Plaintiff alleges that it has been unable to execute the orders made in VCAT, which have been registered in the Magistrates’ Court against Manor Lakes Meat, as the company has been deregistered. The Court understands that the predecessor of the Plaintiff’s current solicitor (Meier Denison Guyer) acted in the VCAT debt recovery proceeding.
20.It is alleged that on 15 May 2015 the Plaintiff made a demand on the Defendants to make payment of the amount of the Orders made against Manor Lakes Meat in VCAT, on the basis that the undertaking provided by the firm had been breached. It is alleged that despite the demand, the Defendants have failed, refused and neglected to honour their undertaking. It is common ground that the Defendants were never joined in the VCAT proceeding.
21.The Defendants, in their Defence filed 6 March 2017, deny that the Defendants gave any undertaking to Ryan Carlisle Thomas and state further that at no time did they seek or have instructions from either Jason Wendt or Kenna Law, the firm acting on behalf of the former wife of Jason Wendt, to pay the proceeds of sale other than as referred to in paragraph 3.7 of the Defence, nor did they give any undertaking in the terms described in the Statement of Claim.
CATEGORY 1 – SOLICITORS’ FILES RELATING TO THE DEBTS ALLEGEDLY OWED TO THE PLAINTIFF BY MANOR LAKES MEAT OR JASON WENDT (`THE VCAT FILE’)
22.Category 1 of the documents sought by the Defendants are the solicitors’ files relating to the debts allegedly owed to the Plaintiff by Manor Lakes Meat or Jason Wendt, which were the subject of the VCAT proceeding. This category of documents was referred to by both Counsel throughout the hearing as `the VCAT file’. The Defendants submit that the entire files of Ryan Carlisle Thomas, Guymer Lawyers and their predecessors Meier Denison Guymer in relation to the debt recovery proceedings are relevant and discoverable because:
a.the Plaintiff has discovered some of the documents, but not all of them (see documents 3-36, Invoices from Plaintiff to Manor Lakes Meat);
b.it would be inherently unfair for the Plaintiff to make use of some of the material and to deny the Defendants the opportunity to make reference to the balance of the privileged material in the solicitors’ files;
c.the fact finding task for the Court in this case will be seriously compromised if all of the material in the files is not discovered;
d.if the evidence is not admitted, the Defendant’ will have been deprived of the opportunity of running a proper defence.[3]
[3] Defendants’ submissions, paragraphs 5.2 (d)-(i).
23.The Defendants’ submit that all debts allegedly due by Manor Lakes Meat and/or Jason Wendt are relevant because the Statement of Claim puts this class of documents in issue and therefore should be the subject of scrutiny in this proceeding.
24.In oral submissions, Mr McGirr pointed to there being no demand made of the Defendants’ for almost two years, whilst the debt recovery proceeding was pursued by the Plaintiff. The Defendants submit that it is relevant for the Court to understand that if the Plaintiff was confident that it had obtained an undertaking, why did it elect not to pursue it in the first instance.
“What they did was go off, pursue VCAT proceedings against the company and only when that failed, and they realised the company was deregistered, then they sought to pursue the alleged undertaking. Now…that’s clearly relevant to issues of credit, and state of mind in relation to what was really the effect of the undertaking given, or alleged to have been given at that time….I say a trial in relation to a solicitor’s undertaking is it has to be clear and unambiguous.”[4]
[4] Transcript of hearing, page 32, lines 7-31.
25.In their Reply[5], the Defendants rely on the following timeline. None of the dates set out in this timeline are contentious.
a.13 September 2013 – alleged undertaking is given by the Defendants;
b.10 December 2013 – the Plaintiff’s solicitors advise moneys have been disbursed from their solicitor’s trust account contrary to the alleged undertaking;
c.26 February 2014 – the Plaintiff issues VCAT proceedings solely against Manor Lakes Meat, not including the Defendants as parties;
d.8 May 2014 – Judgment is entered at VCAT against Manor Lakes Meat;
e.19 October 2014 – Manor Lakes Meat is deregistered by ASIC;
f.15 May 2015 – the first demand is made by the Plaintiff’s then lawyers to the Defendants;
g.18 November 2016 – current proceedings issued.
[5] Defendants’ submissions dated 24 May 2017, paragraph 4.1.
26.In response, the Plaintiff submits that despite having pled facts relating to the debt allegedly owed by Manor Lakes Meat to the Plaintiff, `there is no relevant fact in issue as between the parties regarding the debt.’[6] The Plaintiff submits that the Defendants are unable to `point to any fact that supports the contention that the whole file is relevant’, that the application in this respect is too wide and amounts to a fishing expedition.[7]
[6] Plaintiff’s submissions, paragraph 18.
[7] Plaintiff’s submissions, paragraph 19.
27.In oral submissions, Mr Squirrel said that the pleading about the alleged Manor Lakes Meat debt was provided to explain why the Plaintiff sued for the debt in VCAT, as it could not recover pursuant to the undertaking. He said that `[s]trictly speaking it’s not a necessary allegation because we could just say you’ve made an undertaking, you’ve made a promise. On the basis of that promise we didn’t sue. Where’s the money?’[8] That submission is troubling given that the particulars in relation to the VCAT proceeding have been pleaded, and there has been discovery of some of the documents related to that aspect of the pleading. The Plaintiff has subsequently asserted that the alleged debt owed by Manor Lakes Meat to the Plaintiff is relevant to the quantification of the Plaintiff’s damages, which are “to be assessed by reference to the debts alleged to be owed by Manor Lake to the Plaintiff.”[9]
[8] Transcript of hearing, 25 May 2017, page 30-31, lines 26-31 and 1-3.
[9] Plaintiff’s submissions, 31 May 2017, paragraph 15.
28.Reference to documents in pleadings is generally undertaken because the document is either essential to the cause of action or of significant probative value.[10] If the allegation is unnecessary, then it should not have been included in the Statement of Claim as it gives rise to confusion.
[10] Williams, Civil Procedure, paragraph 29.01.360.
29.Nevertheless, on the balance of probabilities, I am not satisfied there are facts in issue that make the entire files of the Plaintiffs’ current and former solicitors in relation to the conduct of the debt recovery proceedings at VCAT relevant and discoverable. When pressed by the Court as to how the VCAT proceeding was relevant to the current proceeding, Mr McGirr submitted the state of mind of the Plaintiff as disclosed in the Statement of Claim was relevant to issues of credit.[11] That may be the case, but that in itself does not make the entirety of the solicitors’ files relevant and discoverable. Case law has determined that the Court should not permit `[d]iscovery of documents directed exclusively to credit, for instance, for use in cross-examination.’[12]
[11] See Transcript reference above.
[12] Williams, Civil Procedure, paragraph 29.01.220, citing relevant authorities.
30.This aspect of the application is dismissed.
CATEGORY 2 – DOCUMENTS EVIDENCING OR CONSTITUTING ANY DEMANDS MADE BY THE PLAINTIFF TO RYAN CARLISLE THOMAS, GUYMER LAWYERS OR MEIER DENISON GUYMER IN RELATION TO THE ALLEGED DEBT OWED BY MANOR LAKES MEAT OR JASON WENDT
31.The Defendants seek discovery of any letters of demand sent on the Plaintiff’s behalf to Ryan Carlisle Thomas, Guymer Lawyers or Meier Denison Guymer, asserting a failure on their part to protect the position of the Plaintiff regarding the alleged debt owed by Manor Lakes Meat or Jason Wendt.
32.Mr Squirrel conceded at the hearing that if such documents exist, they would be relevant.[13] However, the Plaintiff submits that there is nothing in the current pleadings or Affidavit of Documents that suggests that any such demand was made, and that it is pure speculation on the part of the Defendant that any such demands were made.[14] I am not satisfied on the basis of the pleadings and the evidence before the Court that the Plaintiff has failed to discover relevant documents falling with this category. I agree with the submission of Mr Squirrel that the existence of any such demands is speculative, and in that respect, the request for discovery of documents within this category is refused.
CATEGORY 3 – CURRENT AND FORMER SOLICITORS’ FILES RELATING TO THE ALLEGED UNDERTAKING GIVEN BY THE DEFENDANTS ON 13 SEPTEMBER 2013
[13] Transcript, page 46.
[14] Plaintiff’s submissions, paragraphs 31-32.
33.Category 3 is described in the Summons as the Plaintiff’s current and former solicitors’ files relating to the alleged undertaking given by the Defendants on 13 September 2013. The Defendants’ submit that the solicitors’ files should be discovered in their entirety because:
a.The Plaintiff has placed the professional advice and files of Ryan Carlisle Thomas, Guymer Lawyers and Meier Denison Guymer in issue by pleading the Plaintiff’s state of mind;
b.The Plaintiff’s state of mind is relevant to the fact in issue of whether the undertaking was given, and what were its terms;
c.The Plaintiff has discovered some but not all of the relevant correspondence;
d.It is unfair for the Plaintiff to make use of some of the material and to deny the Defendant access to the balance of the privileged material in the file;
e.The fact finding task of the Court will be compromised without access to the privileged material;
f.The Defendants’ are unable to run a proper defence without access to the material.
The Ryan Carlisle Thomas file
34.The Plaintiff submits that it has discovered various documents which it says were provided to it by Ryan Carlisle Thomas (documents 37-45).
35.The Plaintiff has included in Part 2 of the Affidavit of Documents a reference to the entire file of Ryan Carlisle Thomas. In doing so, there would appear to have been a concession as to the relevance of the entire file as a discoverable document. The Plaintiff now seeks to review the file for relevant documents, and also assert a claim for privilege in respect of those documents in Part 2 of Affidavit of Documents.
36.The Plaintiff concedes that it would be unfair to discover one document (the file note) and `then claim privilege over any other document which is injurious to its case’.[15] The Plaintiff states that it now has the Ryan Carlisle Thomas file in its possession it will together with filing an amended affidavit of documents, review the claim for privilege. The Plaintiff states that it will confirm upon filing the amended affidavit of documents whether it will maintain a claim for privilege in respect of document number 45 and any other relevant documents on the file.[16] These are appropriate concessions and the Court will make orders accordingly.
[15] Plaintiff’s written submissions, paragraph 42.
[16] Plaintiff’s written submissions, paragraphs 39, 42.
37.The Plaintiff submits that discovery of the entire solicitor’s file is not, according to the authority in Transport Industries Insurance Co Ltd v Masel[17], discoverable, but only classes of documents within the file that are directly in issue, admissible and relevant.[18] Nor is, according to that same authority, all legal advice discoverable. According to Justice Eames, citing Dillon LJ in Lillicrap v Nalder & Son[19], the category of relevant and discoverable documents is limited to legal advice about matters that are directly in issue in the proceeding. Further, any waiver of privilege extends only to matters directly in issue, admissible and relevant.[20]
[17] [1998] VSC 114.
[18] Defendants’ submissions, paragraphs 42, 43.
[19] [1993] 1 WLR 94, 99, cited in Transport Industries, at paragraph 16.
[20] Ibid.
38.I agree with Plaintiff’s submissions. The Defendants’ have not satisfied the Court that there are facts in issue that make the entire file of Ryan Carlisle Thomas relevant and discoverable. The request for discovery is too wide, and this aspect of the application is dismissed.
39.Discovery should be limited to documents relating to the alleged undertaking made on 13 September 2013. Counsel for the Plaintiff has conceded that if there is material in the Ryan Carlisle Thomas file that is related to whether or not an undertaking was given, that material should be discovered.[21]
[21] Plaintiff’s submissions, paragraph 51.
40.Insofar as documents falling within this category are the subject of client legal privilege, an affidavit of documents should be filed and served by the Plaintiff discovering those documents. If the claim for privilege is contested, the matter should be referred back to the Court for determination.
The files of Guymer Lawyers and Meier Denison Guymer
41.The Plaintiff submits that the Defendants’ request for discovery of the entire files of Guymer Lawyers and Meier Denison Guymer in relation to the undertaking amounts to a “fishing expedition”.[22] The Plaintiff states that there is no material before the court upon which the court can be reasonably satisfied that the Plaintiff has not discovered all relevant documents in its’ possession power and control.[23] It also states that the Defendants cannot point to any fact in issue that supports the contention that the whole of the solicitors’ files are relevant. I agree with their submission. There is no material that arises from the pleadings or the evidence before the Court that would make the entire content of the above solicitors’ files relevant and discoverable, and that aspect of the application is refused.
CATEGORY 4 – DOCUMENTS RELATING TO ANY DEMANDS IN RELATION TO THE UNDERTAKING MADE BY THE PLAINTIFF AND/OR ITS SERVANTS OR AGENTS AGAINST RYAN CARLISLE THOMAS, GUYMER LAWYERS AND MEIER DENISON GUYMER
[22] Plaintiff’s submissions, paragraphs 6 and 20-23.
[23] Plaintiff’s submissions, paragraph 6.
42.The Defendants’ seek discovery of any letters of demand sent on the Plaintiff’s behalf to Ryan Carlisle Thomas, Guymer Lawyers and/ or Meier Denison Guymer, asserting against Ryan Carlisle Thomas that there was a failure by Ryan Carlisle Thomas to obtain the alleged undertaking.
43.At the hearing, Counsel for the Plaintiff conceded that if any such documents exist, they would be relevant.[24]However, the Plaintiff submits that there is nothing in the current pleadings or Affidavit of Documents that suggests that any such demand was made, and that it is pure speculation on the part of the Defendant that any such demands were made.[25] I am not satisfied on the basis of the material before the Court that the Plaintiff has failed to discover relevant documents falling with this category. There is no evidence before the Court that this is the case. I agree with the submission of Mr Squirrel that the existence of any such demands is speculative, and in that respect, the request for discovery of documents within this category is refused.
DEFICIENCIES IN THE PLAINTIFF’S AFFIDAVIT OF DOCUMENTS
[24] Transcript, page 46.
[25] Plaintiff’s submissions, paragraphs 31-32.
44.The Defendants have raised other specific deficiencies in the Plaintiff’s Affidavit of Documents. I agree with those deficiencies.
45.First, the claim for privilege that is contained in the current Affidavit of Documents is inadequately stated, in that does not state sufficiently the grounds of privilege in respect of document 45, and therefore does not comply with Rule 29.04. Each of the documents in respect of which a claim for privilege is made should be separately listed, and the basis of the claim for privilege stated in respect of each document.[26] Mr Squirrel conceded at the hearing that the claim for privilege needed to be better stated.[27]
[26] See Williams Civil Procedure, paragraph 29.01.315.
[27] Defendant’s written submissions, 24 May 2017, paragraphs 3, 37 and 46.
46.Second, I am satisfied on the basis of the affidavit of Lance James Guymer dated 23 May 2017, that the Plaintiff has not been able, through any fault of it or it’s solicitors, to obtain possession of the Ryan Carlisle Thomas file until the day of the hearing when it was delivered to the Plaintiff’s current solicitors. The letters and documents referred to in Mr Guymer’s affidavit should, however, be discovered in either Part 1 or Part 2 of the Affidavit of Documents and have not been.
47.Finally, the Affidavit of Documents needs to be amended to include relevant documents from the Ryan Carlisle Thomas file, appropriately setting out in Part 2 any claims for privilege.
WAIVER OF PRIVILEGE
48.Mr McGirr submitted that by its pleading of the VCAT proceeding, as well as the undertaking, the Plaintiff has impliedly waived reliance on the client legal privilege which would otherwise attach to the material. It is submitted that there has been “issue waiver” because by its pleading, the Plaintiff has put the state of mind of its directors, agents and servants in issue and it has waived client legal privilege over the entirety of its’ current and former solicitors’ files.
49.The question that arises in cases of “issue waiver” is whether because of the “raising for determination in legal proceedings, as an element in the cause of cation relied upon”, an issue in the proceeding is “incapable of fair resolution without reference to that material.”[28] The majority in Telstra Corporation state:
“Within that framework, the conduct of a party which leads to the implication of consent to the use of otherwise privileged material, or to an implied waiver of such privilege, in undue influence cases, legal professional negligence cases and, in my view, the “state of mind” cases, is that of raising for determination in legal proceedings, as an element in the cause of action relied upon, an issue incapable of fair resolution without reference to that material.
Before returning to the construction of s 122(1) of the Act, some comments should be made, obvious as some of them may be, about the scope and effect of the principle just stated. It does not constitute a broad inroad into legal professional privilege as a “substantive and fundamental common law principle” (Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 122 per Deane J). Nor does it involve any balancing of competing public interests, one in facilitating the application of the rule of law by promoting frank communication between clients and their legal advisers, the other in ensuring that all relevant evidence is placed before a court adjudicating as to the legal rights of parties before it: the recognition of the privilege is itself the outcome of such a balancing process: Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65; Carter at 128. Nor it is a consequence of the principle that whenever a person’s state of mind is relevant to an issue in proceedings, privilege is taken to be waived in relation to legal advice that may have played part in the formation of that state of mind (so that the principle does not, for example, deny the authority of Kennedy v Lyell (1883) 23 ChD 387; Lyell v Kennedy (No. 2) (1883) 9 AppCas 81). It is unnecessary and inappropriate, having said those things, to attempt to define exhaustively the scope of the principle. Where, however, a party relies on a cause of action, an element of which is the party’s state of mind (including the quality of the party’s assent to a transaction) the party is taken to have waived privilege in respect of legal advice which the party had, before or at the time of the relevant events, material to the formation of that state of mind.”[29] (emphasis added).
[28] Telstra Corporation Ltd and Another v BT Australasia Pty Ltd and Another [1998] 156 ALR 634.
[29] Ibid, page 648.
50.Transport Industries[30] is authority for the proposition that any waiver of privilege is limited to the issues that are directly in contention and therefore relevant and admissible.
[30] [1998] VSC 114.
51.The submissions of the Defendants with respect to waiver are misconceived, in my view. The allegation in the Statement of Claim is not that Plaintiff’s state of mind was influenced by its legal advisers, but by the giving of the alleged undertaking by the Defendants. Telstra Corporation requires the Court to be satisfied that the legal advice that the party had, before or at the time of the relevant events, was material to the formation of the pleaded state of mind.[31] The Statement of Claim does not allege that the legal advice that the party had, before or at the time of the relevant events, was material to the formation of its state of mind. There is no such allegation made by the Plaintiff, nor is there any evidence before the Court of that fact.[32] I agree with the submission of the Plaintiff that the professional advice of Ryan Carlisle Thomas, Guymer Lawyers and/ or Meier Denison Guymer is not relevant to the alleged conduct of the Defendants.[33] Nor can I see how it would be unfair to the Defendants if access to these files was not given to them. The Plaintiff has appropriately conceded that if there are documents in the Ryan Carlisle Thomas file that relate directly to whether or not the undertaking was given, those documents will be discovered as it would be unfair to the Defendant not to discover them.
[31] Ibid, page 648.
[32] See also Matthews v SPI Electricity Pty Ltd [2013] VSC 547.
[33] Plaintiff’s submissions, page 11.
52.As I said earlier, if there is any dispute about the Plaintiff’s maintenance of client legal privilege, an application should be listed before me for hearing.
TRANSCRIPTION OF THE FILE NOTE
53.The file note, which is alleged to record the terms of the oral undertaking, must be transcribed in a manner which can lead to it being comprehended by the Defendants. The Plaintiff submits that it has no power to command a transcription of the file note. It is difficult to comprehend this submission, given that the most important aspect of the Plaintiff’s case turns on the evidence of Mr Christian Farrelly, the author of the file note.
54.I will make orders for witness statements to be filed and exchanged by the parties, and that the form of the undertaking should be described clearly in a signed and jurated witness statement by Mr Christian Farrelly.
55.I will now hear the parties on costs.
*This decision has been amended by the inclusion of footnote 2, an amendment to the quotation in paragraph 11 to remove a comma, and insert an ellipsis, and to remove a full stop from paragraph 17 and to insert a parenthesis.
THE COURT ORDERS THAT:
- The Plaintiff is reminded of its ongoing obligation with respect to discovery of documents.
- The Plaintiff is to make, file and serve by 4pm on 12 July 2017 an amended Affidavit of Documents addressing the orders made by the Court in this ruling, and discovering any other relevant documents in its possession, custody or power.
- The Affidavit of Documents to be filed by the Plaintiff must set out in Part 2 any claims for privilege in a form that complies with rule 29.04(d) of the Rules.
- The Plaintiff is to file and serve witness statements by 4pm on 15 August 2017.
- The Defendants are to file and serve witness statements by 4pm on 15 September 2017.
- This matter is referred to mediation not less than four weeks after the Defendants’ witness statements have been filed and served.
- Liberty to apply.
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