VICT v CFMMEU (Ruling No 2) - [2018] VSC 467

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S CI 2017 04871

VICTORIA INTERNATIONAL CONTAINER TERMINAL t/a VICT	Plaintiff
v
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION	Defendant

---

JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2018
DATE OF RULING:	28 August 2018
CASE MAY BE CITED AS:	VICT v CFMMEU (Ruling No 2)
MEDIUM NETURAL CITATION:	[2018] VSC 467

---

PRIVILEGE – Legal professional privilege – Whether file note taken by a solicitor on a teleconference subject to legal professional privilege – Evidence Act 2008 ss 117–119 – Whether any privilege has been waived – Evidence Act 2008 s 125 – Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.

COSTS – Whether subpoenaed non-party entitled to its costs and expenses of complying with the subpoena – Whether subpoenaed non-party entitled to costs on an indemnity basis –
Supreme Court (General Civil Procedure) Rules 2015 r 42.11 – ASADA v 34 Players and One Support Person (No 2) [2015] VSC 14 – Hera Project Pty Ltd v Bisognin (No 4) [2017] VSC 270 – Charan v Nationwide News Pty Ltd (No 6) [2017] VSC 331.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Snaden	Seyfarth Shaw Australia
For the Defendant	Mr H Borenstein QC with Mr Y Bakri	Maurice Blackburn Lawyers
For the First Subpoenaed Party, Australian Mines and Metals Association	Mr A Bell	Macpherson Kelley

HER HONOUR:

This ruling is consequential to a ruling on a subpoena objection (‘the subpoena ruling’).[1] There are two issues for determination.
[1][2018] VSC 417.

The first issue concerns a single document over which there is a claim of legal professional privilege. The document has been produced to the Court as a consequence of a subpoena addressed to a non-party: the Australian Mines and Metals Association (Incorporated) (‘AMMA’). The defendant in this proceeding, namely the Construction, Forestry, Maritime, Mining and Energy Union (‘CFMMEU’), caused the subpoena to be issued. AMMA says the document should not be inspected on the basis it is subject to legal professional privilege. For the reasons discussed below, I find the document is subject to legal professional privilege and therefore may not be inspected by the CFMMEU.

The second issue for determination is AMMA’s application for the CFMMEU to pay its costs relating to the subpoena. I will make orders for the CFMMEU to pay some of AMMA’s costs in respect of the subpoena.

Background

On 12 December 2017, McDonald J made orders concerning a picket at the Webb Dock Terminal (‘the injunction orders’). Victoria International Container Terminal (‘VICT’) operates from Webb Dock Terminal. The orders were directed at the Maritime Union of Australia (‘MUA’), the Construction, Forestry, Mining and Energy Union (‘CFMEU’), and various people including union officials. At that time, the MUA and CFMEU were named as the defendants to this proceeding.

Since the injunction orders were made, the MUA, CFMEU and another union…

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 VICT v CFMMEU (Ruling No 2)

Details

AGLC: Vict v CFMMEU (Ruling No 2) [2018] VSC 467
Case: [2018] VSC 467
Decision Date: 28 August 2018

CaseChat Overview and Summary

The Victorian Civil and Administrative Tribunal (VCAT) heard a matter between the Victorian Commission for the Future of Manufacturing and Employment (VIC) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The dispute centered around the admissibility of a file note taken by a solicitor during a teleconference and the entitlement of a subpoenaed non-party to costs and expenses. The matter was determined by VCAT in Ruling No 2.

The primary legal issues were whether the file note was protected by legal professional privilege and whether any privilege had been waived. Additionally, the court had to determine if the subpoenaed non-party was entitled to its costs and expenses on an indemnity basis. The case hinged on provisions of the Evidence Act 2008 and relevant rules under the Supreme Court (General Civil Procedure) Rules 2015.

The VCAT found that the file note was subject to legal professional privilege, and no waiver of privilege had occurred. The court relied on previous judgments, including Commissioner of Australian Federal Police v Propend Finance Pty Ltd, to conclude that the file note was protected. Regarding costs, the tribunal held that the subpoenaed non-party was not entitled to its costs and expenses as it had not demonstrated a sufficient connection to the proceedings. The VCAT's decision was influenced by ASADA v 34 Players and One Support Person, Hera Project Pty Ltd v Bisognin, and Charan v Nationwide News Pty Ltd.

The tribunal ruled that the file note was protected by legal professional privilege and not subject to disclosure. Additionally, the subpoenaed non-party was not entitled to its costs and expenses on an indemnity basis. These findings were made based on the specific circumstances of the case and the applicable legal principles.

Orders