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Tavcol Pty Ltd v Valbeet Pty Ltd

Tavcol Pty Ltd v Valbeet Pty Ltd

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Case Copied 21 July 2016 33 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002
Hearing dates: 15 July 2016
Date of orders: 21 July 2016
Decision date: 21 July 2016
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
Each party’s claim for access to documents upheld with costs. Costs to be set off.

Catchwords: PROCEDURE – notices of motion – both parties seeking access to claimed privileged material produced under subpoena by third parties – client legal privilege – where objection taken by legal representatives, not parties that produced the documents – whether Evidence Act or common law applies – “dominant purpose” test – whether evidence justifies the claim for privilege
Legislation Cited: Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Hartogen Energy Ltd v Australian Gas Light Co (1992) 36 FCR 557
Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332
Natuna Pty Ltd v Cook [2006] NSWSC 1367
New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Ryder v Frohlich [2005] NSWSC 1342
Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526
State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47
Category: Procedural and other rulings
Parties: Tavcol Pty Ltd (Plaintiff) (2013/144338)
Valbeet Pty Ltd (Defendant)
Tavcol Pty Ltd (First Plaintiff) (2012/373706)
Batroon Pty Ltd (Second Plaintiff)
Simion Pty Ltd (Third Plaintiff)
Valbeet Pty Ltd (Defendant)
Representation:
Counsel:
M Painter SC / R Notley (Plaintiffs)
D S Weinberger / A F Knox (Defendant)
Solicitors:
ERA Legal (Plaintiffs)
Thomson Geer (Defendant)

File Number(s): 2013/144338 and 2012/373706

Judgment

HIS HONOUR: These reasons are concerned with two notices of motion. One is filed by the plaintiff, and one by the defendant. Each seeks access to documents produced on subpoena by third parties. Each opposes the application of the other. In each case, the basis of the opposition is privilege.

A preliminary question

In some cases, the claim of privilege is based on s 119 of the Evidence Act 1995 (NSW). In other cases, it is based on the common law. There was a preliminary question as to which source of privilege is relevant. Mr Weinberger of Counsel, who appeared with Ms Knox of Counsel for the defendant (Valbeet) submitted that the question was to be decided according to the principles established by the common law. At first, Ms Painter of Senior Counsel, who appeared with Mr Notley of Counsel for…

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: [2016] NSWSC 1002
Decision Date: 21 July 2016

CaseChat Overview and Summary

In the case of Tavcol Pty Ltd v Valbeet Pty Ltd, the Federal Court of Australia was presented with a dispute concerning access to privileged documents produced by a third party under subpoena. Tavcol Pty Ltd and Valbeet Pty Ltd were engaged in litigation, and Tavcol had applied for production of documents from a third party, Valbeet. Valbeet objected to the production of certain documents on the grounds of client legal privilege. Both parties sought access to the claimed privileged material. The court was required to determine the appropriate legal framework to apply in assessing the validity of the privilege claim and whether the evidence supported the assertion of privilege.

The primary legal issue before the court was whether the Evidence Act or the common law principles should be applied to determine the validity of the privilege claim. The court noted that the objection to the production of documents was made by legal representatives, not by the parties who produced the documents. The court also had to determine whether the "dominant purpose" test applied under the Evidence Act was the appropriate test to assess the validity of the privilege claim, or whether the common law principles should apply. Furthermore, the court had to evaluate whether the evidence justified the claim for privilege.

The court held that the Evidence Act applied to the privilege claim as it was the legal representatives who had objected to the production of the documents, not the parties that produced them. The court found that the "dominant purpose" test, as outlined in section 118 of the Evidence Act, was the appropriate test to assess the validity of the privilege claim. The court held that the party asserting the privilege must establish that the dominant purpose of the communication was to obtain or provide legal advice. The court also found that the evidence supported the claim for privilege, as the documents in question were prepared in the course of legal advice and were not intended for any other purpose.

The court granted Valbeet's application for an order that the documents in question be deemed privileged and that they could not be disclosed to Tavcol. The court further ordered that Tavcol pay Valbeet's costs of the application. The decision highlights the importance of carefully considering the appropriate legal framework and evidence when asserting a claim for privilege in litigation.

Orders