Hall v Arnold Bloch Leibler (a firm)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 16 October 2020
• Neutral Citation: [2020] FCA 1495
• Date: 16 October 2020

Federal Court of Australia

Hall v Arnold Bloch Leibler (a firm) [2020] FCA 1495

File number:	VID 1010 of 2019
Judgment of:	MIDDLETON J
Date of judgment:	16 October 2020
Catchwords:	PRACTICE AND PROCEDURE – application for inspection of discovered documents over which claims to legal professional privilege made ; EVIDENCE – legal professional privilege – where legal professional privilege claimed by former client – whether documents within scope of express limited waiver – implied waiver – whether former client’s past conduct inconsistent with the maintenance of confidentiality – whether disclosure of document inconsistent with the maintenance of confidentiality in associated material
Cases cited:	Arnold Bloch Leibler (A Firm) v Slater & Gordon Limited [2020] FCA 1496 Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd [2013] FCA 998 Australian Wheat Board Ltd (AWB) v Cole (No 5) (2006) 155 FCR 30 AWB Ltd v Cole (No 5) (2006) 155 FCR 30 Barnes v Commissioner of Taxation [2007] FCAFC 88 Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd [2008] VSCA 59 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Commissioner of Taxation v Pratt Holdings (2005) 225 ALR 266 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Esso Australia Resources Ltd v Federal Cmr of Taxation (1999) 201 CLR 49 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2007] FCA 933 Kamasaee v Commonwealth of Australia (No 2) (LPP Ruling) [2016] VSC 404 Lane v Admedus Regen Pty Limited [2016] FCA 864 Mann v Carnell (1999) 201 CLR 1
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	53
Date of hearing:	26 June 2020
Counsel for the Applicant:	Mr W A D Edwards
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondent:	Mr N Bender with Ms G Coleman
Solicitor for the Respondent:	Norton Rose Fulbright
Counsel for Slater & Gordon Limited:	Mr D Batt QC with Ms C Van Proctor
Solicitor for Slater & Gordon Limited:	Minter Ellison

ORDERS

		VID 1010 of 2019
BETWEEN:	MATTHEW HALL Applicant
AND:	ARNOLD BLOCH LEIBLER (A FIRM) Respondent

order made by:	MIDDLETON J
DATE OF ORDER:	16 October 2020

THE COURT ORDERS THAT:

1. The application to inspect the disputed documents claimed to be subject to legal profession privilege be dismissed.

2. The parties file and serve an agreed position on costs, or in default of agreement, a short written submission on or before 4.00pm on 27 November 2020, which dispute will the determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1. The Court has before it an application in relation to discovery, which was heard concurrently with the proceeding Arnold Bloch Leibler (A Firm) v Slater & Gordon Limited [2020] FCA 1496 (the ‘ABL v Slater & Gordon Proceedings’).

2. In the ABL v Slater & Gordon Proceedings I have dismissed the application for the declaration sought, other than making a declaration on 8 May 2020 (which was varied on 16 October 2020) in the following terms:

No breach of any obligation of confidence owed by the Applicant (ABL) to the Respondent (Slater & Gordon) would arise from or, alternatively, Slater & Gordon would not be entitled to restrain the disclosure and/or use by ABL (including its partners, employees, agents and legal representatives) of all documents in the Due Diligence Committee due diligence files which, under section 11 of the Due Diligence Planning Memorandum, were required to be collated and retained for at least 7 years, for the purpose of ABL defending the Applicant’s claim against ABL in Proceeding No VID 1010 of 2019.

3. The reasons in this proceeding are to be read in conjunction with the reasons in the ABL v Slater & Gordon Proceedings, and with the definitions contained therein.

4. The issue primarily addressed in the application in this proceeding and in the ABL v Slater & Gordon Proceedings was waiver, although Mr Hall in this proceeding has also raised the issue of existence of legal professional privilege over some of the documents in dispute.

5. Slater & Gordon has asserted claims for legal professional privilege over certain of the documents in ABL’s initial list of discovered documents in this proceeding. The documents in respect of which Slater & Gordon claims privilege are identified in annexure RDM-3 to the affidavit of Richard Murphy sworn 26 May 2020 (Murphy Affidavit) (the ‘Documents’). The Documents in dispute (82 in number) are part of the privileged list referred to in the Murphy Affidavit.

6. Attached to these reasons is Annexure RDM-3 to the Murphy Affidavit which is the list of the Documents.

7. Eight of the Documents are also ones where it is contended that other parties may also have a claim for legal professional privilege (the ‘8 Document Subset’).

8. Mr Hall contends that he should be permitted to inspect the Documents, subject only to staying that order in respect of the 8 Document Subset for a short period to allow the other parties to assert any claim for privilege they may wish to seek to agitate. In view of the position taken by the Court that Mr Hall not be permitted to inspect the Documents, no stay is required.

9. Mr Hall’s primary position is that Slater & Gordon has expressly waived confidentiality over the Documents, and in the alternative, has impliedly waived confidentiality, such that legal professional privilege cannot attach to the Documents.

LEGAL PRINCIPLES

10. The principles of law relating to the existence of legal professional privilege and waiver are well established, although their application is not always straightforward.

11. Legal professional privilege attaches to confidential communications brought into existence for the dominant purpose of obtaining or providing legal advice or use in reasonably anticipated legal proceedings: see eg Esso Australia Resources Ltd v Federal Cmr of Taxation (1999) 201 CLR 49 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 552.

12. Legal professional privilege will cover a copy of a document provided to or retained by a lawyer where the copy was brought into existence for the dominant purpose of obtaining legal advice or use in legal proceedings: see Lane v Admedus Regen Pty Limited [2016] FCA 864 (‘Lane’) at [21], citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (‘Propend’) per Gaudron J (at 543-544) and Gummow J (at 571-572) and Barnes v Commissioner of Taxation [2007] FCAFC 88 per Tamberlin, Stone and Siopis JJ (at [5]). Privilege in a “host” document will extend to documents attached to the host document: see Lane at [22].

13. In Kamasaee v Commonwealth of Australia (No 2) (LPP Ruling)...