APPEAL – Evidence – Discovery – Legal professional privilege – Implied waiver – Issue waiver – Whether primary decision maker erred by finding waiver of privilege – Whether pleaded case inconsistent with maintenance of privilege – Confidential documents not laid open to scrutiny – Insufficient reasons – Associated waiver based on conduct – Appeal allowed – Decision varied.
PRACTICE AND PROCEDURE – GROUP PROCEEDINGS – Approval of Settlement Application under Supreme Court Act 1986 (Vic), s 33V – Relevant factors to be considered – Opt Out Application – Clarke v Great Southern Finance Pty Ltd (in liquidation)  VSC 569 – Publication of reasons
EVIDENCE – Privilege – Legal professional privilege – Adequacy of evidence in support of claim.
EVIDENCE – Privilege – Legal professional privilege – documents and communications with third parties – Evidence Act 2008 (Vic) s 118.
EVIDENCE – Privilege – Joint privilege – Evidence Act 2008 (Vic) s 124.
EVIDENCE – Privilege – Waiver of privilege.
PROCEDURE – costs – leave to appeal sought in respect of costs orders made on an issue-by-issue basis – applicant seeks to challenge the judge’s conclusions on certain of the issues but not the ultimate decision – whether an appeal court should canvass intermediate conclusions merely for the sake of an appeal on costs – leave refused – PROCEDURE – subpoena to non-party – legal professional privilege at common law – common interest privilege – person maintaining claim by subrogation to proceeds of pending litigation – communication to that person of confidential legal advice given to the party in whose shoes the person seeks to stand – whether common interest of the litigant and the person claiming by subrogation exists so as to preclude a finding of waiver of privilege – PROCEDURE – subpoena to non-party – legal professional privilege at common law – where the non-party claiming by subrogation has agreed to fund proceedings brought by the litigant – whether the litigation funding agreement is protected by legal professional privilege
EVIDENCE – sections 118 and 124 of the Evidence Act 1995 (NSW) – admissibility of admissions made by a party to a barrister previously retained jointly by the parties
EVIDENCE – Client legal privilege – Loss of client legal privilege – Joint clients – Joint privilege – Jointly retained – Multiple parties – Disclosure requirement – Evidence Act 2008 , ss 124 and 131A.
COSTS – Privilege – Loss of privilege under s 124 Evidence Act 2008 (Vic) determined before trial – Plaintiffs successful.
COSTS – Application by plaintiffs under s 1321 Corporations Act 2001 (Cth) to review decision of liquidators to assert joint privilege – application adjourned sine die without determination.
EVIDENCE – PRIVILEGE – joint privilege – material disclosed subject to joint privilege – whether jointly privileged material able to be tendered in inter partes proceedings – whether privilege waived or lost – question determined prior to trial – Evidence Act 2008 (VIC) ss 124 and 131A – whether proceedings relate to same matter as material – whether joint privilege arose out of joint retainer – loss of joint privilege at common law when parties in litigation – whether joint privilege able to be lost through party possessing material – Calcraft v Guest  1 QB 759.
Client legal privilege – subpoenas
19 The plaintiff submitted that the initial response to progress payment claims was merely contract administration and fell within the ambit of administration of the trust. However, in light of the transmission of 5 May 2006 it is not possible to characterise the resolution of the claims as anything other than an anticipated or pending Australian proceeding. Albeit that by virtue of s 4, the Evidence Act applies to all proceedings in a Victorian court as defined by the dictionary, s 9 sets out that the Evidence Act does not affect the operation of common law “except so far as this Act provides otherwise expressly or by necessary intendment.” Accordingly, I am not constrained to conclude that disputes with respect to progress claims not heard in a Victorian court are necessarily excluded from either the common law principles of legal professional privilege nor the statutory principles of client legal privilege.
Equity – General principles – Fiduciary obligations – Conflict of interest and duty – Solicitor acting for more than one party to a proceeding – Applicant’s right to challenge opponents representation.
Mullins v Rothschild  TASSC 76, Kingston v State Fire Commission 140/1998, followed.
Legal Profession Act, 1993 (Tas)
Rules of Practice, 1994, r12, (Tas)
Aust Dig Equity 
Professions and Trades – Lawyers – Solicitor and client – Potential risk of use of privileged material – Privileged material of a company obtained when plaintiff a director
Farrow Mortgage Services Pty Ltd (in liq) v Mendell Properties Pty Ltd & Others  VSCA 16;  1 VR 1, Rakusen v Ellis, Munday v Clarke  1 Ch 831, considered.
Evidence Act 2001 (Tas), ss118, 123, 124.
Aust Dig Professions and Trades