IOOF Holdings Ltd v Maurice Blackburn Pty Ltd

Supreme Court of Victoria|2016-10-13|Before: ELLIOTT J

PRACTICE AND PROCEDURE - Discovery - Legal professional privilege - Litigation privilege - Internal documents prepared by lawyers - Communications with potential witness - Invoices created by witness and related communications -- Evidence Act 2008 (Vic), s 119.

1 On 25 August 2016, judgment was delivered in this proceeding with respect to privilege claims made by each of the plaintiffs, IOOF Holdings Ltd and IOOF Service Co Pty Ltd (together "IOOF"), the first defendant, Maurice Blackburn Pty Ltd ("Maurice Blackburn"), and the second defendant, Harbour Litigation Funding Ltd ("Harbour"). In the reasons for judgment ("the Reasons"),[1] various issues were raised that required further consideration by the parties before final rulings and orders could be made.[2]

2 In response to these issues, the following further materials have been filed:

(1) On behalf of Harbour, an affidavit of Stephen O'Dowd ("O'Dowd") sworn 8 September 2016, an outline of submissions on confidentiality dated 9 September 2016 (which referred to Harbour's submissions on discovery issues dated 26 April 2016 and a letter dated 30 May 2016), a proposed form of order and an email sent on 9 September 2016 attaching 4 discovered documents redacted or highlighted for the purpose of identifying claims of privilege[3] or confidentiality.

(2) On behalf of Maurice Blackburn, an affidavit of Jacob Varghese affirmed 9 September 2016, an affidavit of Brooke Dellavedova ("Dellavedova") sworn 12 September 2016 and 2 outlines of submissions[4] both dated 12 September 2016.

(3) On behalf of IOOF, an affidavit of Matthew Spain sworn 6 September 2016 and 2 outlines of submissions[5] dated 13 and 14 September 2016.

(4) On behalf of Maurice Blackburn, an outline of submissions on privilege in reply dated 15 September 2016.

3 The submissions and further evidence referred to above diligently addressed each of the issues raised in the Reasons. However, in light of some of the submissions, there were further issues that needed to be addressed. The applications were listed for further hearing.

B. Further hearing and refinement of the issues

4 Consistent with the overarching obligations,[6] various positions were adopted and concessions made by the parties. Accordingly, the only remaining issues for determination are:

(1) Whether Harbour is entitled to maintain confidentiality with respect to 3 of its discovered documents (to the extent that they had not already been the subject of partially successful privilege claims).

(2) Whether Maurice Blackburn is entitled to maintain privilege with respect to 7 of its discovered documents.[7]

5 Harbour's primary submission was that the entirety of the 3 discovered documents in question ought not be required to be produced for inspection in this proceeding, except on a restricted basis. Harbour submitted the documents should only be provided to specified legal representatives of IOOF who have provided strict confidentiality undertakings, including an undertaking not to act for IOOF in the Potential Class Action.[8] In effect, Harbour submitted that the documents ought not be the subject of any inspection unless the requested undertakings were given.

6 Alternatively, Harbour submitted that it should be permitted to redact particular parts of the confidential information contained in the 3 documents before producing them for IOOF's inspection for the purposes of this proceeding. These particular parts were highlighted in yellow by Harbour and provided to the court for inspection.

7 Discovery is an intrusion on the right that a private citizen would otherwise have to keep the existence and contents of its documents private.[9] Accordingly, although a party to litigation is required to comply with the rules or orders of the court concerning discovery by proper identification of discoverable documents,[10] in appropriate circumstances a party required to discover documents may seek orders imposing restrictions or conditions on any order for production.[11] In addition to the implied undertaking that generally applies to discovered documents,[12] and the court's power to impose restrictions or conditions, it may also be ordered that no production of a discovered document is required.[13]

8 In most cases, the fact that documents are confidential does not provide a proper basis to restrict disclosure of a relevant document to an opposing party and its legal representatives. However, the question of whether production ought to be compelled may arise if there is a real risk that significant harm may be caused to a party beyond what is justified in the circumstances of the case.[14]

9 In determining whether or not production should be required, the court must engage in a balancing exercise between the interests of the party seeking production and the interests of the party who has been compelled to discover a document or documents. The ultimate question is what is necessary for the attainment of justice in a particular case.[15]

10 In considering this question, relevant factors include the following:

(1) The degree of relevance of the document or documents.

(2) The extent to which the document or documents are confidential, including whether the information has already been disclosed in the proceeding.

(3) The use to which the information might be put once it is known, such as by an opposing party who is a trade rival or is also an opposing party in another proceeding (or an anticipated or pending proceeding).

(4) The utility or procedural fairness, or otherwise, of imposing restrictions or conditions, including limiting production to certain persons upon the provision of confidentiality undertakings.

(5) Any other matters relevant to the due administration of justice, including ensuring compliance with the overarching purpose in the Civil Procedure Act 2010 (Vic).[16]

11 Whatever form of restrictions or conditions might be ordered, such orders would, ordinarily, be subject to review as the proceeding progresses to, or is the subject of, a trial. This ensures that the orders made are in the interests of justice based on the particular circumstances extant from time to time.[17]

12 Harbour supported its primary submission on the basis that, if the 3 documents in question were disclosed to IOOF or their advisers, IOOF would have a significant commercial and legal advantage in the Potential Class Action, particularly in relation to any potential settlement of the Potential Class Action. It was submitted, correctly in my view, that, not only would Harbour be disadvantaged by disclosure, but the class members of the Potential Class Action may be prejudiced in circumstances where IOOF or their advisers had information relevant to the funds available from Harbour or any conditions relating to the provision of those funds.[18]

13 Further, Harbour submitted that the information in the 3 documents was highly confidential, commercially sensitive and went to the heart of Harbour's business. Harbour submitted that if such documents were at risk of ultimate disclosure to its funding competitors or, with respect to the document that was entirely internal to Harbour, to "its potential law firm partners" (including Maurice Blackburn) or IOOF's solicitors, this would cause Harbour significant harm.

14 Furthermore, it was submitted that the documents in question were not relevant to this proceeding.

15 As to the last of these submissions, the documents in question were discovered pursuant to orders made on 28 April 2016 as to the categories of documents that were required to be discovered.[19] This gives rise to a strong presumption that the documents are relevant to the proceeding. Further, having reviewed them in their entirety, and without elaborating on their contents, in my view the documents, or substantial parts of the documents, are relevant.

16 Although I do not accept Harbour's submission as to relevance (though the degree of relevance must still be considered as part of the balancing exercise referred to above[20]), Harbour's submissions otherwise do provide a proper basis for keeping certain information confidential. That said, it is unnecessary to withhold production of the entirety of the documents in order to protect Harbour's interests as identified above.

17 There is a significant amount of information in the 3 documents that has either already been disclosed in the proceeding generally, or to Maurice Blackburn before the proceeding commenced. Further, much of the information could not properly be said to relate directly to commercially sensitive information about Harbour's business or the resources that might be available in the Potential Class Action.

18 Finally, with respect to the 2 documents Maurice Blackburn has already seen, Maurice Blackburn supported Harbour's claim on behalf of its clients with respect to some of the information, but not all of it.

19 With these introductory comments in mind, I will now address the 3 documents individually.

C.3.2 Document 4 in part 2A of schedule 1

20 This document was identified in the Reasons as category H.3.[21] It consists of 3 emails in a chain between Harbour and Maurice Blackburn, all dated 17 July 2015, plus attachments.

21 The first of these emails was sent by O'Dowd on 17 July 2015 at 3.37 am. The body of the email consists of only 3 sentences. The information contained in the first 2 sentences has already been disclosed on a non-confidential basis in this proceeding. With respect to the last sentence, the first part of that sentence has also been disclosed. The final part of the last sentence refers to "a few issues", but there is no identification of what they are. In summary, there is nothing material contained in the email that has not already been disclosed in this proceeding. Further, no claim for confidentiality is made by Maurice Blackburn.[22] Accordingly, the email will be required to be produced for inspection without redaction.

22 The next email is from Dellavedova sent 17 July 2015 at 3.18.[23] Two paragraphs have been highlighted as confidential by Harbour, but no claim is made by Maurice Blackburn. In my view, the contents of those 2 paragraphs are directly relevant to Harbour's processes with respect to funding arrangements. Further, the information is of marginal relevance to the proceeding, at best. In the circumstances, Harbour is entitled to maintain confidentiality. Accordingly, Harbour will be required to produce this email for production, subject to the redaction of the 6 paragraphs highlighted in yellow.

23 The final email was sent by O'Dowd on 17 July 2015 at 7.02 pm. There are 6 separate passages that have been highlighted in yellow. The information is relevant to the processes of Harbour, including its monitoring processes, and is commercially sensitive. Further, it discloses information relevant to the conditions of funding. It is appropriate for the information to remain confidential, particularly given its limited relevance to the issues in the proceeding. Accordingly, Harbour will be ordered to produce the email for inspection, subject to the redaction of the 6 passages highlighted in yellow.

C.3.3 Document 5 in part 2A of schedule 1

24 This document formed part of category H.2 as identified in the Reasons,[24] and is also correspondence between Harbour (including its solicitors, Watson Mangioni) and Maurice Blackburn. The document comprises an email chain commencing on 20 July 2015 and concluding on 27 July 2015.

25 The first email for which there is a confidentiality claim was sent by O'Dowd on 21 July 2015 at 2.13 am. Harbour sought to keep 2 paragraphs confidential.[25] With respect to the last paragraph of the email, its contents appear to be of no relevance to the proceeding, and are also commercially sensitive. This claim is upheld.

26 The remaining claim for confidentiality concerns an aspect of Harbour's business structure and arrangements, both specifically to this case and more generally. Without descending to the particular details, the communication is concerned with procedures relevant to liability for taxation. The claim for confidentiality is only made by Harbour.

27 When considering this confidentiality claim (which I have done in the context of the subsequent emails on the same subject matter), the first issue to address is the extent to which the information remains confidential. There are at least 4 matters which diminish the nature and extent of the confidentiality.

28 First, it has already been disclosed in this proceeding that the particular funder in this case, Harbour Fund III, is an exempted limited partnership established in the Cayman Islands.[26]

29 Secondly, O'Dowd has given evidence that although Harbour is a "London-based litigation investment advisory company", the 2 "investment sub-advisor" companies relevant to this litigation are limited liability companies with an obvious connection to the Cayman Islands.[27]

30 Thirdly, Harbour has voluntarily disclosed to Maurice Blackburn its requirements both specifically to the transactions related to the issues in this proceeding and also as to how it "usually" conducts itself to achieve its desired outcome; and the fact that it has obtained advice on the issue. Harbour might have chosen to stipulate its required processes without revealing to Maurice Blackburn the level of detail that it did.

31 Fourthly, this disclosure to Maurice Blackburn needs to be considered in circumstances where, as I was informed by Harbour's senior counsel, Maurice Blackburn itself is in the business of funding litigation.[28]

32 In summary with respect to the 4 matters, although the communication with Maurice Blackburn was presumably intended to be conveyed on a confidential basis,[29] the level of that confidentiality could not be considered to be akin to the treatment which would be expected to be afforded to a trade secret or equivalent confidential information.

33 Further, the information is likely to be relevant to issues in the proceeding. The correspondence may be relevant to the nature of the relationship between Harbour and Maurice Blackburn. Although the existence of the relationship of funder and plaintiff's solicitor for the Potential Class Action is not in issue, the nature of the relationship, the extent to which the parties were willing to exchange information and the manner in which they did so may be highly relevant.[30]

34 Furthermore, even if I am incorrect about the relevance of the information with respect to the material facts pleaded, the substantive relief sought by the plaintiffs, in significant respects, involves the court exercising its discretion. Without making any suggestion that Harbour was in any way acting unlawfully or improperly in making the arrangements that it did with Maurice Blackburn,[31] the nature of the relief sought is another reason why this information may be relevant.

35 Taking into account the matters referred to above, on balance it is in the interests of justice that the information be disclosed for the purposes of this proceeding. Accordingly, Harbour will be ordered to produce the email for inspection, subject to the redaction of the last paragraph (numbered 3).

36 The next relevant email was sent by Michelle Gray ("Gray") of Watson Mangioni on 21 July 2015 at 12.12 pm. Relevantly, the email was concerned with outstanding issues on the proposed funding agreement and the retainer of Maurice Blackburn.

37 The matters referred to in paragraph 1, 1st bullet point, subparagraph (ii), and paragraph 2, 2nd bullet point, are commercially sensitive to Harbour, Maurice Blackburn and its clients as they concern funding arrangements. Further, they are of little or no relevance to the issues in the proceeding. The claim for confidentiality by Harbour, which was supported by Maurice Blackburn on behalf of its clients, is upheld.

38 The matter in paragraph 1, 2nd bullet point, concerns a proposed clause of the funding agreement. The funding agreement was tendered on the applications the subject of the Reasons on the basis there was no issue about confidentiality with respect to its contents. In essence, the passage the subject of the confidentiality claim in this email concerns Harbour's aspirations with respect to a particular clause that was contained in the funding agreement as finalised.

39 To the extent the funding agreement is relevant, it is the terms of the funding agreement as finally agreed that are relevant, not the subjective intentions or desires of a particular party.[32] In the absence of any real relevance, and the obvious commercial sensitivity in knowing Harbour's particular position on a clause, the confidentiality claim is upheld.

40 The remaining issue concerns what is contained in paragraph 1, 1st bullet point, subparagraph (i).[33] This particular matter is a response to the issues raised by O'Dowd in the email sent on 21 July 2015 at 2.13 am referred to above.[34] For the reasons already stated,[35] the claim for confidentiality is rejected.

41 Accordingly, with respect to the email sent on 21 July 2015 at 12.12 pm, Harbour will be ordered to produce the email for inspection subject to the redaction of paragraph 1, 1st bullet point, subparagraph (ii); paragraph 1, 2nd bullet point; and paragraph 2, 2nd bullet point.

42 The next email in the chain was sent by Dellavedova to Gray and others on 21 July 2015 at 9.13, copied to others from Watson Mangioni, Maurice Blackburn and Harbour. The first confidentiality claim is in paragraph 1a. Maurice Blackburn does not make any claim for confidentiality in relation to this information. The information relates to the execution process of arrangements with Harbour for Harbour's tax purposes. The claim is rejected for the reasons already stated.[36]

43 The second claim is in paragraph 1c. It falls into the same category as paragraph 1a and is also rejected.

44 The final claim for confidentiality is in paragraph 2. It relates directly to matters concerning the funding agreement and the protection provided. This claim will be upheld for the reasons stated in paragraph 23 above. Accordingly, Harbour will be ordered to produce the email for inspection, subject to the redaction of the paragraph numbered 2.

45 The next email in the chain is from O'Dowd to Dellavedova sent on 22 July 2015 at 3.18 am, copied to others at Maurice Blackburn and Watson Mangioni. Paragraph 1 concerns the process for execution of documents. There is no claim for confidentiality by Maurice Blackburn. The claim is rejected.[37]

46 Paragraph 2 of the email relates to the funding in response to paragraph 2 of the previous email. The confidentiality claim is upheld for reasons already stated.[38]

47 The next paragraph after paragraph 2 (which is not numbered) relates to paragraph 2 and the claim is also upheld.

48 Finally, with respect to this email, the penultimate paragraph consists of 1 sentence which is only partially redacted. I suggested to Harbour's senior counsel that the first 2 words of the redaction, namely "save that" should be disclosed so that the first part of the sentence, which was disclosed, was not misleading. This was agreed.

49 Accordingly, with respect to the email sent on 22 July 2015 at 3.18 am, Harbour will be ordered to produce the email for inspection subject to the redaction of paragraph 2, the paragraph immediately following paragraph 2 and the words in the penultimate paragraph after the words "save that".

50 The next email was sent by Dellavedova on 22 July 2015 at 10.17. It appears that the email contains not only what was sent by Dellavedova, but also a response to her email, as the words "noted" and "agreed" appear at the end of 2 of the paragraphs of the email.

51 The information in paragraph 2 deals with the same subject matter referred to in paragraph 46 above. The confidentiality claim is upheld.

52 With respect to the confidentiality claims in paragraph 4, the sentence in the chapeau and the last sentence in paragraph 4e deal with the same subject matter referred to in paragraphs 26 to 35 above. The confidentiality claim is rejected.

53 With respect to the remaining confidentiality claim in paragraph 4e, reference is made to a process that was used in another class action. It has no relevance to this proceeding. The information may be redacted as the confidentiality claim is upheld or, alternatively, on the ground of lack of relevance.

54 Lastly with respect to this email, the claim for confidentiality in the last sentence of paragraph 5 deals with the same subject matter referred to in paragraphs 26 to 35 above. The confidentiality claim is rejected. Accordingly, Harbour will be ordered to produce the email for inspection, subject to the redaction of paragraph 2 and the penultimate sentence in paragraph 4e.

55 Finally, with respect to this email chain, an email was sent by Dellavedova to O'Dowd on 23 July 2015 at 9.26. The claim for confidentiality with respect to paragraph 1a is upheld for the reasons stated in paragraph 46 above. The claims for confidentiality in paragraphs 1c and 2 deal with negotiations before the funding agreement was concluded. Given the lack of relevance of this information, the confidentiality claims[39]re upheld.39 Accordingly, Harbour will be ordered to produce the email for inspection, subject to the redaction of the passages highlighted in yellow.

C.3.4 Document 1 in part 2B of schedule 1

56 This was the document in category H.7 identified in the Reasons.[40] It is an internal document of Harbour that has not been disclosed to Maurice Blackburn or anybody else outside Harbour. Although some of the information is also contained, or substantially contained, in the funding agreement, I have formed the view that that fact ought not, of itself, prevent Harbour from making a successful confidentiality claim by way of complete redaction of such information.

57 Notwithstanding some overlap in the information already disclosed, this internal document of Harbour shows thought processes and contains emphasis that has been kept confidential to Harbour. In addition, by reason that such information largely reflects the aspirations of Harbour prior to the funding agreement being entered into, it is of marginal or no relevance.[41]

58 Accordingly, subject to what is set out below, Harbour's privilege and confidentiality claims as highlighted are upheld and the document may be redacted to reflect this. The exceptions are as follows:

(1) Page 2: the words "MINIMUM CLAIMANT SIGN UP (condition subsequent) £50M" were not pressed by Harbour's senior counsel in oral submissions.

(2) Page 4, paragraph 9: the words "but has decided to explore the IFL opportunity with Harbour" were not pressed by Harbour.

(3) Page 9, being the first page of an email sent by O'Dowd on 29 June 2015 at 17.34: the words "Please be sensitive whenever you speak to someone at the firm that [sic] they believe 100% they are delivering access to justice" were not pressed by Harbour.

(4) Page 10, being page 2 of the same email: the words "didn't provide the opportunity to develop a relationship with Harbour" were not pressed by Harbour.[42]

59 In conclusion, Harbour will be ordered to produce for inspection the document entitled "HARBOUR INVESTMENT COMMITTEE PAPERS" and the first 3 papers attached, subject to the redaction of:

(2) The passages highlighted in yellow, except for those passages referred to in subparagraphs (1) to (4) in paragraph 58 above.

C.3.5 Appropriate restrictions and confidentiality undertakings

60 So as to ensure that the orders made as a result of the above reasons with respect to the 3 documents only go as far as is necessary to attain the interests of justice in this proceeding, those orders will, subject to further order of the court, require that:

(1) Only the lawyers and officers of each party to the proceeding who are directly involved in the conduct of the proceeding are given access.

(2) Each lawyer or officer of a party to whom access is to be given will be required, before having access, to give a written undertaking that that person keep the contents of the documents confidential and to only disclose or discuss (as the case may be) their contents to or with another person who has given an equivalent undertaking.

61 By an affidavit sworn 12 September 2016, Dellavedova sought to correct the basis upon which some privilege claims were made with respect to documents identified in the Reasons as category R.[43] Otherwise, the privilege claims were maintained as before.

62 There are 8 documents that fall within category R. As noted above,[44] IOOF continues to challenge the privilege claim with respect to 7 of them.

63 The first document in issue is a file note dated 11 August 2015.[45] In the Dellavedova Affidavit,[46] Dellavedova deposed that various documents, including this file note, were "communications with Employee A relating to assistance as a possible witness in the Potential Class Action and internal documents relating to those communications".[47] Having inspected the document, which is marked "privileged and confidential", it meets the description of an internal document relating to communications with Employee A. For the reasons stated in paragraphs 94 to 108 of the Reasons, the document is privileged.

64 The next document is an invoice dated 1 December 2015.[48] In the Dellavedova Affidavit, Dellavedova deposes that the document is a communication "with Employee A regarding assistance as a possible witness in the Potential Class Action".[49] As noted in the Reasons,[50] confidential communications with potential witnesses, or confidential documents prepared in that regard, may properly be the subject of a claim for litigation privilege by a party or prospective party of anticipated or pending litigation. However, the claim must be considered in the particular circumstances of this case.

65 Maurice Blackburn has openly disclosed that it has been in communication with, and received assistance from, Employee A. Maurice Blackburn's defence filed in this proceeding specifically identifies Employee A.[51] Relevantly, Maurice Blackburn alleges Employee A "prepared, used and disclosed [certain information] for ... legitimate purposes [including making] disclosures under the Whistleblower Policy [of IOOF] and pursuant to Part 9.4AAA of the Corporations Act". Further, in resisting IOOF's challenges to privilege claims, Dellavedova has deposed to the fact that Maurice Blackburn has communicated with, and received assistance from, Employee A for the purposes of the Potential Class Action.[52]

66 Accordingly, documents in the possession of Maurice Blackburn or its clients do not contain "confidential communications" and are not "confidential documents" because they disclose that there have been communications with, or assistance from, Employee A. Further, the document in question was created by Employee A and is an invoice for Employee A's time spent in communication with Maurice Blackburn. The narration to the invoice does not disclose the contents of any such communications, but simply refers to the fact that they occurred, with whom the conferring took place, and the time spent and amount charged.[53] Furthermore, it is self-evident that the document was created by Employee A for the dominant purpose of being paid.

67 It follows, in the particular circumstances of this case, that the document does not disclose confidential communications between "a lawyer acting for the client and another person", nor can it be said that the confidential communication[54] was made, or the contents of the confidential document were prepared, for the dominant purpose of Maurice Blackburn's clients being provided with professional legal services, as that term is used in s 119 of the Evidence Act 2008 (Vic). Accordingly, the claim for privilege is rejected.

68 The next document is an email from Employee A to Dellavedova attaching an invoice for witness expenses.[55] The contents of the email say nothing more than the invoice[56] is attached and inquires as to whether there are any issues. In circumstances where the invoice itself is not privileged, neither is the covering email. The dominant purpose of Employee A preparing this document and sending this communication was for him to be paid. The claim for privilege is rejected.

69 The next document is a draft invoice prepared by Maurice Blackburn and provided to Employee A so that he could prepare invoices for his services.[57] The dominant purpose of the preparation of the document and the communication was to facilitate the payment of Employee A for his services. In the circumstances of this case, for the reasons discussed above,[58] the document does not fall within s 119 of the Evidence Act.

70 The next document is an email from Dellavedova to Employee A sent 1 December 2015.[59] The email simply acknowledges receipt of Employee A's invoice and indicates that payment will be attended to "asap". The dominant purpose of the communication was to confirm the imminent payment of Employee A. For the reasons discussed above, it is not privileged.

71 The final document is an email internal to Maurice Blackburn sent on 4 August 2015, marked privileged and confidential.[60] In the Dellavedova Affidavit, the claim is made on behalf of the First Client[61] on the basis that the document relates to briefing counsel.[62] Having inspected the document that description is apt. As stated in the Reasons at paragraphs 94 to 109, the document is privileged.

72 Accordingly, Maurice Blackburn will be directed to produce for inspection the documents in Maurice Blackburn's list, numbers 237, 385, 386, 393 and 399. Otherwise, Maurice Blackburn has successfully maintained its claims for privilege.

[3] The documents were redacted to the extent that the privilege claims have already been upheld in the Reasons. Otherwise, the remaining privilege claims yet to be finally ruled upon were highlighted in green.

[4] The submissions separately addressed privilege and confidentiality issues.

[7] There were 8 documents listed by Maurice Blackburn pursuant to the direction in the Reasons at [122]. With respect to 1 of these documents, Maurice Blackburn's list, number 360, IOOF did not press for production: IOOF's submissions, 14 September 2016, [5].

[8] As that term is defined in the Reasons at [20]; namely, a possible class action by a class of IOOF Holdings' shareholders against IOOF.

[9] To the extent that the legislature has not interfered with such rights: see, for example, Harman v Secretary of State for the Home Department [1983] 1 AC 280, 312A (Lord Scarman (dissenting) with whom Lord Simon agreed).

[10] See, for example, Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 29.04.

[11] See, for example, Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 39.9-40.4 (Hayne JA, with whom Winneke P and Phillips JA agreed).

[12] Civil Procedure Act, s 27; Harman v Secretary of State for the Home Department [1983] 1 AC 280, 304G (Lord Diplock), 307H-308A (Lord Keith), 312B (Lord Scarman (dissenting), with whom Lord Simon agreed). See also Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 38.6.

[13] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 38.6.

[17] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 40.2.

[18] See, for example, Coffs Harbour City Council v Australia and New Zealand Banking Group Ltd [2016] FCA 306, [18]-[19] (Rares J); Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455, [69]-[71] (Sundberg J); Re Kingsheath Club of the Clubs Ltd (in liquidation) [2003] FCA 1034, [33]-[34] (Goldberg J).

[19] These orders were made by Hargrave J following a successful objection made by Harbour as to the breadth of the categories of discovery then sought by IOOF. During the course of submissions on that occasion, IOOF's senior counsel accepted the issue of relevance could be raised in any later dispute concerning production.

[20] See par 10 above.

[22] In this context, Maurice Blackburn is a reference to it and to its clients.

[23] The emails from Dellavedova do not specify whether they were sent am or pm.

[24] At [54(1)(b)] and [141]-[142].

[25] Initially, Harbour sought to keep 3 paragraphs confidential. However, at the hearing Harbour's senior counsel did not press the claim for par 2 if the global claim for confidentiality was unsuccessful.

[27] The companies are Harbour Advisors Cayman Ltd and Harbour Litigation Cayman Ltd.

[28] The court was informed of this as part of the basis for keeping other information confidential. When this matter was raised, Maurice Blackburn took no exception to the court being so informed.

[29] The email in question is not specifically marked confidential in contrast to the last of the emails in the chain, albeit the footers to the email chain referred to possible issues of confidentiality.

[30] Relevance in this context is used both in a direct sense and also in a manner consistent with the decision of Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63.2 (Brett LJ). Although the Peruvian Guano test for relevance is now restricted in its application in some circumstances (for example, the test has been narrowed in respect of the obligation to provide discovery: see Supreme Court Rules, r 29.01.1; Civil Procedure Act, s 26; Liesfield v SPI Electricity Pty Ltd (Ruling No 1) (2013) 43 VR 493, 501 [29] (J Forrest J)), the test may be relevant and appropriate in other contexts when "relevance" is being considered.

[31] On the information that is available, there is no basis to form a view 1 way or the other.

[32] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, 178 [36], 178-179 [38], 179 [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352.4 (Mason J). To the extent the information may disclose something about the nature of the relationship between Harbour and Maurice Blackburn, it has some relevance (see par 33 above), but the topic being dealt with is of no real significance with respect to the issues in the case.

[33] Initially there was a claim for confidentiality in relation to par 1, 1st bullet point, subpar (iii), but Harbour's senior counsel informed the court that that claim was not pressed in the event that Harbour's global claim for confidentiality was unsuccessful.

[35] See pars 26-35 above.

[37] See pars 26-35 above.

[38] See pars 23 and 44 above.

[39] See pars 38-39 above.

[40] At [54(2)(a)] and [153]-[157].

[41] See pars 38-38 above.

[42] For completeness, I note that the concessions by Harbour's senior counsel both with respect to this document and others, were made after matters were raised by the court. Had those concessions not been made, the confidentiality claims would not have been upheld in any event.

[43] At [52(10)] and [118]-[122].

[44] See par 4(2) above.

[45] Maurice Blackburn's list, document 81.

[46] Reasons, fn 12; this affidavit was sworn by Dellavedova on 17 May 2016.

[47] Paragraph 32(e).

[48] Maurice Blackburn's list, number 237.

[51] Although a pseudonym is used in the pleadings, all parties are aware of the identity of Employee A.

[52] See, for example, pars 63 and 64 above.

[53] Cf Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181, 195-197 [62]-[68] (Murphy JJA with whom Martin CJ and Newnes JA agreed); Carey v Korda and Winterbottom (No 2) [2011] WASC 220; (2011) 85 ACSR 331, 343-344 [64]-[67] (Edelman J); Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd t/as Uncle Ben's of Australia (1994) 126 ALR 58, 68.1 (Tamberlin J); Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275, 282.2-6 (Andrews SPJ), 289.5-8 (McPherson J); Barnes v Federal Commissioner of Taxation [2007] FCA 3; (2007) 64 ATR 553, 560 (Nicholson J).

[54] The document is marked privileged and confidential and has been kept confidential to date. For completeness, marking the document in such a manner is not determinative: Reasons, [59].

[55] Maurice Blackburn's list, number 385.

[56] An inspection discloses the invoice attached (Maurice Blackburn's list, number 386) is another copy of the invoice referred to in par 64 above.

[57] Maurice Blackburn's list, number 393.

[58] See par 67 above.

[59] Maurice Blackburn's list, number 399.

[60] Maurice Blackburn's list, number 422.

[62] Paragraph 32(d).

Court (General Civil Procedure) Rules 2015

At a glance

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