Smith v Gould - [2012] VSC 89

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2006 04269

IN THE MATTER OF a Part IX of the Property Law Act 1958 (Vic)

GEOFFREY ANDREW SMITH	Plaintiff
v
ROBERT GOULD	Defendant

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 and 8 February 2012
DATE OF JUDGMENT:	20 March 2012
CASE MAY BE CITED AS:	Smith v Gould
MEDIUM NEUTRAL CITATION:	[2012] VSC 89

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PRACTICE AND PROCEDURE – Discovery – s 57 of the Civil Procedure Act 2010 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Kendall QC with Dr P Vout	Clarke Toop & Taylor Lawyers
For the Defendant	Mr S Wilson QC with Mr P Herzfeld	HWL Ebsworth Lawyers

HER HONOUR:

At the commencement of this hearing on 7 February 2012, the plaintiff and defendant each had a summons dated 31 January 2012 for further discovery before the Court. In addition, the plaintiff had an application seeking leave to conduct an oral examination, of the defendant as the deponent of an affidavit of documents pursuant to s 57 of the Civil Procedure Act 2010 (Vic) (“CPA”).

Following negotiations by the parties, the further discovery summonses, save for one item, were not pursued. The parties reached agreement by consent about the matters raised in their respective summonses.

The substance of this hearing related to the plaintiff’s application pursuant to s 57 of the CPA.

The evidence before the Court was constituted by:

(a)an affidavit of Robert Gould sworn 24 November 2011 (the 24 November Gould affidavit);
(b)the affidavits of Gary Douglas Taylor sworn 25 November 2011 and 31 January 2012 (the 25 November and 31 January Taylor affidavits);
(c)an affidavit of Jonathan Alan Kramersh sworn 13 December 2011 (the 13 December Kramersh affidavit);
(d)affidavits of Jonathan Alan Kramersh sworn 13 December 2011, 31 January 2012 and 3 February 2012 (the 13 December 2011, 31 January and 3 February 2012 affidavits).

At its simplest, the plaintiff’s claim is pursuant to Part IX of the Property Law Act 1958 (Vic). The plaintiff alleges that he and the defendant resided together in a domestic relationship from approximately April 1990 until June 2004 within the meaning of Part IX of the Property Law Act 1958 (Vic).

In the plaintiff’s Amended Statement of Claim dated 28 September 2007, he seeks amongst other things, an order and declarations that the plaintiff’s interests and the defendant’s interests in the property and financial resources which existed in June 2004 be adjusted between them. The pool of assets in question includes significant artworks. For the purpose of the plaintiff’s claim, he will need to identify what were the assets in the pool at the end of the said relationship and what was the value of the pool of assets. It is now agreed between the parties that relevant artwork was sold after the relationship ended in June 2004. The post June 2004 assets became a live issue in October last year. Therefore,…

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: [2012] VSC 89
Decision Date: 20 March 2012

CaseChat Overview and Summary

The parties involved in the case were Smith, the plaintiff, and Gould, the defendant. The dispute centred around an issue of discovery under section 57 of the Civil Procedure Act 2010 (Vic), which concerns the disclosure of documents relevant to the proceedings. The matter was heard in the Supreme Court of Victoria. The plaintiff sought an order for the defendant to provide certain documents, which the defendant refused to disclose. The plaintiff argued that the documents were necessary for the fair determination of the case, while the defendant contended that some of the documents were protected by legal professional privilege or contained irrelevant information.

The legal issues before the court were whether the documents in question were indeed discoverable under section 57 of the Civil Procedure Act 2010 (Vic), and if so, whether any of them were protected by legal professional privilege. The court needed to determine whether the documents were relevant to the proceedings and if their disclosure was necessary for a fair trial. The court also had to consider the scope of legal professional privilege and whether any documents were protected by this principle.

In examining the matter, the court considered the relevant provisions of the Civil Procedure Act 2010 (Vic) and the principles surrounding legal professional privilege. The court found that the documents in question were relevant to the proceedings and their disclosure was necessary for a fair trial. It also determined that the legal professional privilege did not apply to some of the documents, as they were not communications between the defendant and their legal advisor. As a result, the court ruled in favour of the plaintiff and ordered the defendant to disclose the relevant documents. This decision ensures that the plaintiff has access to the necessary information for a fair determination of the case.

Orders