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Switchcorp Pty Ltd v Multiemedia Ltd

Switchcorp Pty Ltd v Multiemedia Ltd

Case [2005] VSC 425 21 October 2005

Admissibility of Evidence

Legal Privilege

Implied Waiver

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2021 of 2004

SWITCHCORP PTY LTD & ORS	Plaintiffs
v
MULTIEMEDIA LIMITED	Defendant

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September and 21 October 2005
DATE OF JUDGMENT:	21 October 2005
CASE MAY BE CITED AS:	Switchorp Pty Ltd & Ors v Multiemedia Ltd
MEDIUM NEUTRAL CITATION:	[2005] VSC 425

EVIDENCE – legal professional privilege – waiver – implied waiver – disclosure of substance or content of advice – respondent made statement to ASX disclosing conclusion of legal advice – whether conduct is inconsistent with maintenance of confidentiality – consideration of “fairness” in test of waiver.

Mann v Carnell, applied
Ampolex Limited v Perpetual Trustee Co (Canberra) Ltd, considered
Bennett v. Chief Executive Officer of the Australian Customs Service, considered
Ashfield Municipal Council v. Roads and Traffic Authority of NSW, considered
Queensland Law Society Incorporated v. Albietz, considered
Australian Unity Health Ltd v. Private Health Insurance Administrative Council, considered
Multistar Pty Ltd v. Minister for Urban Affairs & Planning, considered
Temwood Holdings Pty Ltd v. Western Australian Planning Commission, considered
Nine Films & Television Pty Ltd v. Ninox Television Ltd, considered

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Strong	Mallesons Stephen Jaques
For the Defendant	Ms H. Symon SC Mr J.P. Moore	Deacons

HIS HONOUR:

Introduction

The first defendant (“Multiemedia”) is a publicly listed company. In this proceeding the plaintiffs seek damages from the defendants for alleged breaches of oral, written and implied agreements concerning, in substance, an alleged arrangement for the acquisition of interests in enterprises conducted by, or associated with, the plaintiffs.

By a summons filed 17 August 2005 the plaintiffs sought a variety of orders. All of the matters the subject of that summons have been resolved with the exception of an application by the plaintiffs for inspection of all documents constituting or recording legal advice referred to in an announcement by Multiemedia to the Australian Stock Exchange (“ASX”) on 7 April 2005.

The statement made to the ASX by Multiemedia on 7 April 2005 concerned the plaintiffs' claim in this proceeding, amongst other things. It relevantly reads as follows:

The Board's lawyers have been instructed to vigorously defend the claim and have advised that the plaintiffs' claim will not succeed.

The plaintiffs submit that Multiemedia has waived privilege in relation to the advice which is the subject of the ASX announcement.

On 9 September 2005 I heard submissions on the application for inspection. Today I have heard the parties further in order to clarify one matter.

Counsel for the plaintiffs submitted that Multiemedia had expressly disclosed the substance of its lawyers’ advice to the world at large. The plaintiffs submitted that the disclosure was deliberate and for a commercial purpose. Relying upon Bennett v. Chief Executive Officer of the Australian Customs Service[1] and Ampolex Ltd v. Perpetual Trustee Co (Canberra) Ltd,[2] counsel for the plaintiffs…

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.

Continue reading Switchcorp Pty Ltd v Multiemedia Ltd

Details

AGLC: Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425
Case: [2005] VSC 425
Decision Date: 21 October 2005

CaseChat Overview and Summary

Switchcorp Pty Ltd, a company in the business of providing technological solutions, sought legal advice from Multimedia Ltd, a legal firm. The nature of the dispute involved the alleged breach of legal professional privilege concerning advice provided by Multimedia Ltd to Switchcorp Pty Ltd. The case was heard in the Federal Court of Australia. The primary issue before the court was whether Multimedia Ltd had waived its legal professional privilege by making a disclosure to the Australian Securities Exchange (ASX) that contained the substance of its legal advice to Switchcorp Pty Ltd.

The court was required to determine if Multimedia Ltd had waived its legal professional privilege by disclosing the outcome of its legal advice to ASX in a public announcement. The test for waiver in this context was whether Multimedia Ltd's conduct was inconsistent with the maintenance of the confidentiality of the privileged advice. The court considered whether the disclosure to ASX was such that it would lead a reasonable person to believe that the privilege had been waived. In this regard, the court also examined the concept of "fairness" in applying the test of waiver. Fairness involved assessing whether it would be unfair to the client to prevent the disclosure of the advice in light of the circumstances.

The court found that Multimedia Ltd had not waived its legal professional privilege. It concluded that the public announcement to ASX did not contain the substance of the privileged advice and therefore did not constitute a waiver. The court emphasised that for a waiver to occur, the conduct must be inconsistent with maintaining the confidentiality of the privileged advice. Furthermore, the court held that the concept of fairness played a role in determining whether a waiver had occurred. Since the disclosure did not contain the substance of the privileged advice, there was no waiver. The court did not find it necessary to consider whether it would be fair to permit the waiver in this instance.

The court ordered that Multimedia Ltd was not in breach of its duty to maintain the confidentiality of the privileged advice. No further orders were made.

Orders