The Oswal matters – pre trial discovery and privilege applications - [2016] VSC 386

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

BETWEEN

S CI 2011 04653

RADHIKA PANKAJ OSWAL	Plaintiff
- and -
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) & OTHERS (according to the attached schedule)	Defendants

AND BETWEEN

S CI 2012 01995
PANKAJ OSWAL	Plaintiff
- and -
IAN MENZIES CARSON & OTHERS (according to the attached schedule)	Defendants

AND BETWEEN

S CI 2015 00804
YARA PILBARA FERTILISERS PTY LTD (ACN 095 441 151)	Plaintiff
- and -
PANKAJ OSWAL & OTHERS (according to the attached schedule)	Defendant

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RULING NO 1

EVIDENCE – Privilege – Legal professional privilege – Whether communications made for the dominant purpose of providing legal advice to client – Multiple purposes – Evidence Act 2008 (Vic) s 118 – Whether documents should be inspected under s 133 of the Evidence Act 2008 (Vic) – Tabcorp Holdings Ltd v Victoria [2013] VSC 302 distinguished.

EVIDENCE – Privilege – Loss of client legal privilege – Waiver of privilege – Whether waiver by reason of disclosure of privileged communications to other parties - Character of communications – Consideration of context in which communications took place – Whether recipients of documents under an obligation of confidence – DSE (Holdings) Pty Ltd v InterTan (2003) 135 FCR 151 considered.

EVIDENCE – Evidence Act 2008 (Vic) s 122 (3) and s 122(5)(a), (b) and (c) – Whether a party in its pleadings has put in issue its state of mind such that it is inconsistent with the maintenance of confidentiality in documents relevant to the formation of that state of mind – Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd (2015) 321 ALR 191 applied.

EVIDENCE – Privilege – Loss of client legal privilege – Whether communications in furtherance of an abuse of power – Insufficient evidence – Evidence Act 2008 (Vic) s 125.

EVIDENCE – Privilege – Whether a party with an interest in the outcome of a legal proceeding has a right of access to privileged documents relating to another party’s prospect of success in that legal proceeding – Common interest found – Yunghanns v Elfic Pty Ltd (No 2) (2000) 1 VR 92 applied.

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RULING NO 2

EVIDENCE – Privilege – Legal professional privilege – Confidential communication made between two lawyers acting for the client – Nature of transaction – Context – No “knowing and voluntary” disclosure – Not disclosed with express or implied consent of client – Evidence Act 2008 (Vic) s 118(b), s 122(3)(a) and (3)(b) – QUBE Logistics (Vic) Pty Ltd v Wimmera Container Hire Pty Ltd [2013] VSC 695 followed.

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RULING NO 3

PRACTICE AND PROCEDURE – Discovery – Civil Procedure Act 2010 (Vic) s 55 (2)(b) – Claim that party should be relieved from its discovery obligations on the basis that claim against it untenable in fact and law – Not a proper basis for resisting discovery.

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RULING NO 4

PRACTICE AND PROCEDURE – Discovery – No issue of principle.

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] VSC 386
Decision Date: 25 November 2015

CaseChat Overview and Summary

The case before the court involved a dispute regarding pre-trial discovery and legal professional privilege in relation to communications between clients and their legal representatives. The matter was heard in the Supreme Court of Victoria. The central issue was whether certain documents were subject to legal professional privilege, and if not, whether they should be inspected by the parties involved under the Evidence Act 2008 (Vic).

The court was required to determine if the communications in question were made for the dominant purpose of providing legal advice, and whether they should be protected under legal professional privilege. The court also had to assess whether the privilege had been waived through disclosure to other parties, and if the recipients were under an obligation of confidence. Additionally, the court considered whether the state of mind of a party, as put in issue in their pleadings, was inconsistent with maintaining confidentiality in relevant documents. Finally, the court examined if communications were made in furtherance of an abuse of power, and whether a party with an interest in the outcome of a legal proceeding had a right of access to privileged documents.

The court found that the communications were not made for the dominant purpose of providing legal advice and therefore did not qualify for legal professional privilege. The court also held that privilege had been waived due to the disclosure of the communications to other parties, and that the recipients were not under an obligation of confidence. The court further determined that the state of mind of a party was inconsistent with maintaining confidentiality, and that there was insufficient evidence to support an abuse of power. The court concluded that there was a common interest warranting access to the privileged documents.

The final orders of the court mandated the inspection and disclosure of the relevant documents, rejecting the claims of privilege and waiver arguments presented by the parties.

Orders