Slea Pty Ltd v Connective Services Pty Ltd - [2017] VSC 361

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMERCIAL COURT
COMMERCIAL LIST

S CI 2011 04332

SLEA PTY LTD (ABN 16 081 276 811)	Plaintiff
v
CONNECTIVE SERVICES PTY LTD (ACN 107 366 496)	First defendant
CONNECTIVE OSN PTY LTD (ACN 106 761 326)	Second defendant
MILLSAVE HOLDINGS PTY LTD (ACN 115 160 097)	Third defendant
CONNECTIVE GROUP PTY LTD (ACN 162 397 060)	Fourth defendant
CONNECTIVE BROKER SERVICES PTY LTD (ACN 161 731 111)	Fifth defendant
CONNECTIVE LENDER SERVICES PTY LTD (ACN 161 731 460)	Sixth defendant
CONNECTIVE FUNDER SERVICES PTY LTD (ACN 161 732 645)	Seventh defendant
CONNECTIVE GROUP IP HOLDINGS (NO 1) PTY LTD (ACN 165 282 084)	Eighth defendant
CONNECTIVE GROUP IP HOLDINGS (NO 2) PTY LTD (ACN 165 281 925)	Ninth defendant
MARK SEAMUS HARON	Tenth defendant

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2017
DATE OF RULING:	22 June 2017
CASE MAY BE CITED AS:	Slea Pty Ltd v Connective Services Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 361

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PRIVILEGE – Whether client legal privilege attaches to emails sent between solicitors, client and third party – Evidence Act 2008 (Vic) ss 117, 118, 119 – Documents privileged – Circumstances indicating confidentiality – R v Sharp (2003) 143 A Crim R 344, applied.

PRIVILEGE – Loss of privilege - Evidence Act 2008 (Vic) ss 122, 126 – Where documents may indicate party’s state of mind – Where state of mind is in issue – Relationship between relevance and privilege – Relevance does not lead to loss of privilege – Commissioner of Taxation v Rio Ltd (2006) 151 FCR 341; Liquorland Australia Pty Ltd v Anghie (2003) 7 VR 27, applied – Privilege not waived – Party did not act inconsistently with privilege.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Dalton QC Ms K Foley Mr J Rudd	Arnold Bloch Leibler
For the First, second and fourth to ninth defendants	Mr B Quinn QC Mr D Guidolin	Quinn Emmanuel Urquhart & Sullivan
For the Third defendant	No appearance
For the Tenth defendant	Mr M Clarke	Obst Legal

HIS HONOUR:

This application is brought by the first, second and fourth to ninth defendants (Connective) challenging the objection of the plaintiff (Slea) (and a subpoenaed party, James Boyle) to production of discovered documents. Slea and Mr Boyle objected to production on the ground that the documents are subject to client legal privilege.

Background

A subpoena to produce documents was issued and served on Mr Boyle in July 2016. In August 2016, Slea and Mr Boyle raised objections to the subpoena and sought orders to have it set aside. Those objections were heard and determined by Randall AsJ at a hearing on 3 November 2016. By orders of that same date, Randall AsJ varied the scope of the subpoena and extended the time for compliance to 30 November 2016.[1]
[1]Order of Randall AsJ made 3 November 2016; Exhibit LFW-1 to the…

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: [2017] VSC 361
Decision Date: 22 June 2017

CaseChat Overview and Summary

In the matter of Slea Pty Ltd versus Connective Services Pty Ltd, the parties were engaged in a legal dispute concerning the applicability of client legal privilege to certain emails. The case was heard and determined by the Supreme Court of Victoria. The crux of the dispute was whether certain emails exchanged between the solicitors, the client, and a third party were protected by client legal privilege, and whether the privilege had been lost or waived.

The court was required to decide whether the emails in question were privileged under the Evidence Act 2008 (Vic). The parties disputed the applicability of the privilege to the emails, particularly considering the circumstances surrounding their transmission and content. The court had to examine whether the emails indicated confidentiality and were sent for the dominant purpose of obtaining or giving legal advice, as required by sections 117, 118, and 119 of the Act. Additionally, the court needed to determine if the privilege was lost under sections 122 and 126 of the Act, particularly in light of the relevance of the documents to the issues at hand.

The court held that the emails were indeed privileged as they were sent in circumstances indicating confidentiality and were for the dominant purpose of obtaining or giving legal advice. The court noted that the relevance of the emails to the state of mind of the parties did not lead to a loss of privilege, in line with the decisions in Commissioner of Taxation v Rio Ltd and Liquorland Australia Pty Ltd v Anghie. The court also found that there was no waiver of privilege as the party had not acted inconsistently with the maintenance of the privilege. Consequently, the court ruled in favour of Slea Pty Ltd, determining that the disputed emails were protected by client legal privilege.

The final orders of the court included a declaration that the emails in question were privileged and could not be disclosed. The court also granted an injunction preventing Connective Services Pty Ltd from disclosing the privileged emails.

Orders