Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2010] VCAT 269 | Case summary

[4]

(a) all of the documents which I have determined relate to the subject matter of the stay application, being as follows:

Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2010] VCAT 269 | Case summary | Zoe

[13]

As a result of the breach of the contract and representations Seachange claims that it has suffered loss and damage. The way in which this loss and damage is claimed and calculated is, in my view, one of the critical issues in this application, so I will set it out in detail.
The first head of damage is the cost of altering, rectifying and completing the works done by Bevnol. The cost claimed under this head is $1,125,591. Those costs are said to include the costs of engaging an alternative builder to complete the works, which costs are separately estimated at $165,000.
Secondly, Seachange has claimed for the costs of servicing loans it has incurred from 31 August 2006, which is the date on which it says the work should have been completed, up until the date of trial of this proceeding.
In its Further and Better Particulars dated 23 May 2008 Seachange identifies these loans. It says they include a loan from Bank West in the amount of $3,101,696.35, a loan from Galambos Pty Ltd in the amount of $970,197.00, and a pre-paid deposit loan of $6,274,000.00 from Seachange Ridge Nominees Pty Ltd.
Seachange says it has suffered loss by continuing to be responsible to service these loans after the time at which the project was due to be completed.
As a further head of damage, Seachange specifically claims as part of the damage it has suffered, "opportunity cost of the funds including the bank loan and the inter partnership advances and deposits at $6,500,000."
It is not clear what the difference is said to be between some of the heads of damage pleaded, or how the opportunity cost referred to in the claim is to be calculated.
However, it is clear that Seachange relies on an allegation that because it is unable to complete sales of the units which were the subject of the contract it is unable to realise profits on the sale of the units. Its calculation of its loss of profits for the first year is $380,000.00 per loan/licence fee, or $22,800,000.00 for the first year of delay. It says that it has based this calculation on a market value of $16,150,000 for the site on which the works were constructed.
In order to prove its claim at trial, Seachange will therefore need to establish the factual matters set out above and Bevnol will be entitled to test each of these allegations.
In particular, Seachange will have to prove, and Bevnol will be entitled to test -

[20]

There is a further aspect to the counterclaim. Bevnol alleges that the entire contract relied on by Seachange was conditional on Seachange obtaining finance in the sum of $1,809,827.00, ( being the full amount of the construction cost), within 14 days of the contract being signed.
Bevnol says that during May, June and July of 2006, and in particular at a meeting on 20 July 2006, Bevnol, through its directors, advised De Simone personally that until Bevnol received confirmation from Seachange that Seachange had obtained the loan funds set out in Clauses 8.1 and Schedule 1, Item 11 of the Contract, Bevnol would not be able to obtain the requisite domestic warranty insurance to commence the work and thus would not be able to obtain a building permit.
As I have said, the contract was signed in May 2006.
Bevnol alleges that on 27 July 2006 De Simone provided to Bevnol a letter from Seachange's accountant, which advised that the funding necessary to finance the development had been put in place and the funds were available to pay "their chosen builder".
Bevnol alleges that this letter and the circumstances of its production by De Simone constitute a representation by Seachange and by De Simone that funding was available to pay the first progress claim and that as a result of receipt of this document, Bevnol commenced work on site on 28 September 2006.
Bevnol alleges that Seachange had in fact not obtained finance sufficient to enable it to meet its financial obligations under the contract.
Bevnol says that the circumstances which it alleges amount to conduct under s152 of the Fair Trading Act by De Simone (and others not represented in the application before me) in contravention of s9 of the Fair Trading Act (the misleading and deceptive provisions), contravening of s9 of the Fair Trading Act, inducing the contravention of the Fair Trading Act or aiding, abetting, counselling or procuring the contravention.
Bevnol says further that it relied upon the financial approval representation by these respondents and the truth of the representations made by these respondents and therefore continued to proceed with work under the contract.
Thus, Bevnol has joined De Simone as the second respondent to the counterclaim.

[28]

Seachange Management was represented by solicitors and De Simone has represented himself in the proceeding.
When this matter was listed before me for hearing there was some controversy between the parties as to whether this application before me was an application by Bevnol that Mr Brereton and Mr Chrapot produce documents for inspection, or an application by Seachange and De Simone that inspection of those documents be not allowed.
This application was not initiated by a formal application, but listed before me pursuant to orders made by Deputy President Aird following issues relating to inspection having been raised with her at various directions hearings.
VCAT is not a Court of pleadings, and I do not consider that I should be influenced by the lack of formal application. The question to determine is what is the real subject matter of this dispute between the parties.
I take the view that the real dispute which I have to determine is between the parties to this proceeding. There is no live dispute between the party issuing the summons and the person to whom the summons is directed.
I have thus treated this application as being an application by Seachange and De Simone that Bevnol be prevented from inspecting the documents.
De Simone said that if I were to take the approach for which he argued, this would make it clear that there was no burden on himself or Seachange to establish any of the matters on which he relied, and that to the contrary the burden of proof was on Bevnol to persuade me that the documents should be released.
This was said to be because it was up to me to determine initially whether the summons was valid and to exercise my discretion as to whether the documents need to be inspected. He said it was not for him to bear any burden of being required to persuade me in respect of these matters, as they are matters the Tribunal should enquire into of its own volition.
It is sometimes said that it is inappropriate to characterise proceedings before this Tribunal as involving strict application of a burden of proof.
For the purpose of this application it seems to me that where matters are asserted by De Simone and Seachange which they say require me to prohibit disclosure of the documents, the burden of proving those matters lies upon them. Where facts are asserted by Bevnol which are said to be relevant to the decision as to whether or not to release the documents, the burden of proof of those matters is on Bevnol. Unless otherwise referred to in these reasons, the proof required is the civil standard- that is, is it more likely than not that the facts alleged are true.

[30]

De Simone inspected the documents and has produced a spreadsheet as an attachment to his affidavits dated 24 April 2009 and 8 December 2009 which identifies each of the documents provided by Chrapot and Brereton in response to their various subpoenas, and identifies in respect of each document the grounds on which he says, on behalf of himself and Seachange, that inspection should be prevented.
This document builds upon an earlier document prepared by him and amended by Bevnol - exhibited to the affidavit of Bevnol's solicitor, Mr Archer. Archer has identified the grounds on which he says that disclosure should be ordered. De Simone has identified the documents which he agrees should be released and those in relation to which he claims inspection should be prevented.
The final version of this spreadsheet is exhibit GDS1-15 in relation to Mr Brereton and GDS1-16 in relation to Mr Chrapot. I will attach a copy of each of these exhibits to my decision for convenience.
I have also received several affidavits from De Simone, Mr Peter Lustig, solicitor for Seachange, and two affidavits from the solicitor for Bevnol, Mr Brendan Archer.
Seachange also relies on the affidavit of Mr Allain, a director of Bevnol, sworn 24 September 2008, which was not filed in this application, but in an application by Bevnol for self-executing orders by reason of the failure of Seachange to provide further and better particulars.
Both Seachange and Bevnol have filed submissions. De Simone has not filed submissions. As I understand it, he relies on the Seachange submissions, together with the oral submissions he has made to me at the directions hearings conducted relating to this application.
Given that the Tribunal's file is very large, I made orders requiring the parties to specifically identify all material from the file which is said to be relevant in this application, and I have read and considered all the material so identified in coming to my conclusions.
Bevnol complied with the timetable set by me for the filing of affidavits and submissions in respect of this application. Seachange and De Simone did not.
In addition to these affidavits and submissions, both parties invited me to inspect the documents produced by Chrapot and Brereton. I was initially reluctant to do so, as the folder produced by Chrapot contains 179 documents, and the three folders produced by Brereton contain in total 1294 documents. However, as will become evident from these reasons, I ultimately decided that I could not properly deal with the issues raised other than by inspecting the challenged documents myself to ascertain whether a particular ground relied on could be upheld.
I recognise that it is not usual that documents be inspected in this way. However, given the failure of De Simone and Seachange to identify exactly how it is said that the objections they have made can be made out, I determined that it would be more efficient for me to inspect the documents than to attempt to enforce orders which had already been made for identification of precise grounds of objection, and which had not been complied with by Seachange and Bevnol.

[31]

Well after the time had elapsed for the filing of his submissions, De Simone sent an email to the Tribunal seeking to be able to cross-examine witnesses and summons further witnesses. I called a directions hearing to consider this application.
At that directions hearing, De Simone, supported by Seachange, told me that he wished to call evidence to support his claim that the issue of the summonses was an abuse of process.
In particular he said he wishes to prove that the material produced under each subpoena was already in the possession of Bevnol when the summonses were issued, and that they were issued to attempt to hide the premature wrongful release of that material to Bevnol for the purpose of it being passed on to the police informant.
In order to prove this allegation, he wishes to call Chrapot and Brereton, and also the police informant Mark Patrick, and also Brendan Archer, solicitor for Bevnol, and Louis Allain, a director of Bevnol.
He said that he seeks to also prove through this evidence that Brereton and Chrapot had a fiduciary relationship to Seachange, and perhaps also to the other entities named by De Simone. He said that if he could prove that this was so, he would be able to establish legal professional privilege or breach of confidence.
This application was opposed by Bevnol.
Bevnol has good reason to complain about De Simone's breach of the orders which I made for the filing of affidavits and submissions, and in respect of the late application to call evidence. Previous orders have been made in this proceeding by Deputy President Aird regulating each party's right to call evidence and issue summonses. These orders have been made in an attempt to restrict marginally relevant or vexatious applications, and to focus the parties on preparing this case for final hearing.
However, I am bound to take into account the fact that De Simone represents himself in this application, and although he has legal qualifications, he cannot be expected to be capable of preparing his case with the degree of expertise of a professional legal adviser.
But more importantly, De Simone has told me that he has put preparation of his submissions in this application aside as he has also been required to prepare for the criminal proceedings which I have earlier outlined, and which are listed for committal this June.
It is clearly important that this Tribunal's orders are enforced and effective case management principles are applied to prevent unnecessary costs and delay. This principle was recently recognised and reinforced by the High Court in Aon Risk Management Services Limited v Australian National University (2009) HCA 27. The following paragraph sets out the approach to be taken in situations such as the one facing me here:

[34]

The first and most straightforward of the grounds of objection is that of relevance. Seachange and De Simone object to the production of almost all of the documents produced by Brereton as irrelevant to the issues relating to this proceeding. They also object to many of the documents produced by Chrapot on the grounds of relevance.
It is clear that documents which are irrelevant to the issues in a proceeding should not be the subject of discovery. It seems to me that the same principles should be applied when considering the release of documents obtained under summons.
I have not had the benefit of detailed submissions from either Seachange or De Simone on the question of relevance. Each has, except in the passages to which I refer below, simply baldly claimed that the documents identified in De Simone's spreadsheet are irrelevant to this proceeding.
Although De Simone has filed three affidavits in support of his application and in each of those applications has claimed that the documents sought are irrelevant, he has not provided any detail as to the basis for this claim in his affidavit.
As counsel for Bevnol has not had an opportunity to inspect the documents, and the documents are very sparingly described in the spreadsheet, Bevnol has likewise not been able to provide detailed submissions about relevance.
Doing his best without this information Mr Archer, solicitor for Bevnol, has identified in respect of each document claimed not to be relevant, the relevance claimed by Bevnol by reference to particular paragraphs of the Amended Points of Claim, the Further and Better Particulars, and the Defence to Amended Counterclaim. The categories of relevance he has identified are as follows:
1. relevant financial information in relation to the Bank West loan;
2. relevant financial information regarding funding of Seachange generally;
3. relevant financial information regarding investment in Seachange by Pital;
4. relevant information regarding Seachange's claim for damages under the cost to complete the work under the Bevnol contract;
5. relevant information regarding the claim for damages for financial loss allegedly incurred by Seachange;
6. relevant to the claims made by Seachange for damages resulting from alleged defects and omitted works;
7. relevant to Bevnol's claim for damages under the development agreement; and
8. relevant to steps taken or not taken by Seachange to mitigate its alleged loss and damage.
I shall refer at length later in these reasons to a decision of the Supreme Court of New South Wales in National Employers Mutual General Association Limited v Waind and Hill. (1978) 1NSWLR 372. This decision is useful in my consideration of the claim that the issue of the summonses is an abuse of process. However the decision is also useful in considering relevance.
In that case, the Court said that the crucial question to be decided was whether the documents have "apparent relevance" to the issues in the trial. This test is clearly a lesser one than that which must apply when making a final decision as to whether to admit a document into evidence at trial or allow its use for the purpose of cross-examination.
On this point the Court observed -

[42]

It must be remembered however, that in Fried, Weinberg J was considering a completely different fact situation from the one before me. In that case it was acknowledged that the documents subpoenaed were completely irrelevant to the issues in dispute. They related to the tax affairs of the witness, and were sought only on a hunch that they may produce embarrassing material that could be used to attack the credit of a witness.
Thus, these observations should not be taken as meaning that it will always be inappropriate to include in a subpoena documents relevant to the credit of witnesses. Each fact situation must be considered on its merits.
Applying the principles set out in the cases outlined above, my task is to decide relevance from a broad perspective - as being capable of affecting the probability of existence of a fact which has a connection to the issues in dispute between the parties.
It may be that at the trial of this proceeding documents which I may view as potentially relevant to the issues in dispute are found not to have such relevance. Not having the advantage of hearing all of the evidence to be presented at the final hearing, it is impossible for me to make a categorical determination.
Not having the benefit of detailed submissions as to why the documents are said to be irrelevant, I have inspected each document said to be not relevant and compared it to the allegations set out in the pleadings.
I have done so from the viewpoint that if a document is shown to have a potential connection to an issue in dispute on the pleadings, or to the credit of a potential witness, then that it is sufficient to render it relevant for the purpose of inspection at this stage of the proceeding.
As I have outlined below, it seems to me that De Simone has taken an extremely narrow approach to the question of relevance in making his objections to individual documents.
He has objected to the relevance of some documents whilst also claiming that those documents are protected by legal professional privilege. He has sought to confine the issues to be proved at trial so as to render irrelevant many documents which appear to me to be clearly relevant on the pleadings, or relevant to his credit. Often it appears to me he has simply claimed irrelevance because he believes the document is damaging to his case.

[43]

In paragraph 8 of the Points of Claim Seachange has claimed as part of its loss "additional costs associated with engaging an alternative builder to complete the works" and estimates this cost at $165,000.
It is clear from the content of many of the documents produced by Chrapot that he was the person engaged by either Seachange or De Simone to arrange for the engagement of the alternative builder and to provide advice and assistance in relation to the completion of the development or part of the development at Ocean Grove.
The documents which Chrapot has produced range in dates from 23 January 2007 to 3 February 2008. The documents consist of correspondence between Chrapot and De Simone, correspondence between Chrapot and other parties either engaged in the development or having a connection with the development, and copies of documents relating to the development not generated by Chrapot but which concern the development in some respect.
It is difficult to see how a document received by Chrapot relating to his duties as construction manager, engaged for the purpose of completing the works the subject of this claim, could be anything but potentially relevant to the facts alleged in the Points of Claim, and particularly relevant as to whether the claimed $165,000 for the cost of completing the works can be justified.
The documents disclosed by Chrapot also appear to be of potential relevance to issues raised in the Counterclaim. In particular, Bevnol asserts that Seachange made direct approaches to and purported to issue instructions to Bevnol's subcontractors. In the defence to counterclaim Seachange denies that it did so. Documents relating to Chrapot's contact with subcontractors appear prima facie extremely relevant to that allegation and denial.
However, I have not determined relevance just by reference to these general considerations. I have inspected each of the documents provided by Chrapot in respect of which this objection is taken, to ascertain whether there is potential relevance to the issues in dispute as set out in the points of claim and defence to counterclaim.
These documents are not chronologically numbered. In referring to them in these reasons I have, for convenience, followed the numbering of the document prepared by De Simone outlining the objections which is exhibited to his affidavit.
The first such document (on page 130) is described as Building Assist email enclosing invoice to Chrapot. Building Assist was engaged to produce an inspection report for the Seachange village.
De Simone says that the Building Assist report is not relevant because it was not relied upon by Seachange as an expert report in preparing its calculations of loss and damage. It was prepared for a different "special purpose" of obtaining warranty insurance in respect of future works.
It is self-evident that the relevance of a document does not depend on whether the party commissioning its production intends to rely on it, or prepared it for other purposes.
The Building Assist report is clearly relevant to the proceeding. However the document at page 130 is an invoice for payment of the report and correspondence about payment. It is not the report itself.
There are several other documents produced by Chrapot which are also claimed not to be relevant which deal with the payment of accounts by Seachange and financial arrangements with creditors. These include documents 162-165, documents 11-12, documents 13-15, document 116, documents 123-125, documents 175-176.
It is apparent that the financial status of Seachange will be a significant issue at the trial of the proceeding. This is because it is an issue which Seachange has itself raised in its Points of Claim.
The major reference to the financial arrangements underpinning the project are in relation to Seachange's claim for loss of damage which occurs at paragraph 8 of the Points of Claim. In the particulars to that paragraph Seachange claims that as a result of the works not being completed Seachange was unable to complete sales of the units comprising the works and consequently Seachange was unable to discharge its loan facilities.
As part of its damages it claims that it has had to continue to pay interest and it identifies the loan facilities in respect of which interest is claimed. In the Further and Better Particulars dated 23 February 2009 the loan facilities are identified as being a loan from Bank West, a loan from Galambos Pty Ltd, and a pre-paid deposit loan from Seachange Village Nominees Pty Ltd.
In order to prove its case at trial Seachange will need to be able to prove the existence of these loan facilities, the terms of the relationship between Seachange and the lenders, and the genuineness of this loss.
Thus it appears to me that all documents in Chrapot's possession relating to payment of accounts by Seachange, issues of delay of payment of accounts and any documents generated which may have a bearing upon the capacity of Seachange to pay accounts are relevant to either proving or testing Seachange claim that it has been unable to discharge the loans that it has identified by reason of the failure of Bevnol to complete the works.
Further, Seachange claims a loss of opportunity cost of the funds comprised in the loan facility. In order for a lost opportunity cost to be calculated or tested it will be necessary for Seachange's financial status to be proven. Any documents in Chrapot's possession as to the financial relationships between Seachange and its creditors are therefore relevant to that calculation.
Further, Seachange has made a claim for rectification and completion of the works at its own cost. In the Amended Statement of Claim the estimated cost of rectification works is $660,000 and the cost to complete the works is $1,125,591.50.
Seachange has objected to Chrapot documents which reveal negotiations with various contractors and in respect of documents setting out matters still to be completed on the project, such as the document on pages 38-41 entitled "Development Action List".
Every document identifying transactions between Seachange and other contractors and/or financiers in relation to the Seachange project is, in my view, potentially relevant to the calculation of the costs of rectification and therefore discoverable.
Mr Lustig has particularly singled out for comment documents 153-161 which relate to works done at the Ocean Grove Hotel. This is a document which relates to dealings between Seachange and Dudley Builders, the builders apparently engaged to complete some of the works and whose account is presumably part of the cost of rectification. It thus has clear relevance to the facts asserted in the Points of Claim.
Document 166-168 Headed Quote from Dudley for Stage 2 is a quotation for works, the address of which is the site which contains the works the subject of this dispute. On the spreadsheet De Simone comments that the quote does not relate to the works done by Bevnol. This seems to me an issue which is potentially in contention on the pleadings. I am not prepared to conclude that the document is irrelevant at this stage.
Having completed the inspection of each document claimed to be irrelevant it is my view that the documents disclosed by Chrapot each potentially bear upon an issue in dispute in this proceeding or to the credit of a potential witness in the proceeding.

[44]

I turn now to the documents produced by Michael Brereton. Seachange and De Simone have not provided detail of the claim in respect of relevance in relation to these documents.
I am not at present determining the capacity in which Brereton received these documents. However, whether Brereton received these documents as solicitor for Seachange , or investor in Seachange, it is difficult to see how any of the documents identified as irrelevant are in fact so.
Once again I have individually perused each of the documents provided by Brereton from the standpoint of relevance.
It is my view that each document which refers to the relationship between Seachange and its financiers as identified in the Points of Claim is potentially relevant to its claim for loss or damage. It is Seachange which asserts that it obtained a loan from Bank West in the amount of $3,101,696.35. It is Seachange which asserts that that loan attracted interest which it was obliged to pay. Thus all correspondence from Bank West to Seachange or which relates to that loan must be potentially relevant to either establishing that allegation or testing it.
Further, Seachange must prove loss of revenue from a failure to realise the loan or licence fees. In order to make this claim or make a claim for lost opportunity the financial structure of Seachange, its financial obligations and financial structure are all relevant issues to be taken into account. Thus the documents provided by Brereton which identify loan account transactions, liabilities of Seachange, directorship of Seachange and its relationship with other potential creditors or investments are, in my view, relevant.
Many of the documents provided by Brereton relate to the broader Seachange Village development rather than specifically the construction of the 11 units which is the subject of Seachange's claim. As I have outlined, in its counterclaim Bevnol asserts that Seachange entered into an agreement with Bevnol whereby Seachange would engage Bevnol to construct for it the entire village, being 136 aged care units and associated works, for a sum of approximately $22,176,105.
In its defence to counterclaim Seachange says that the development agreement was void for uncertainty, that there was no intention on the part of Seachange to enter into contractual relations with Bevnol and that there was no consideration agreed to be paid for the performance by Bevnol of the uncertain requirements of completion of the whole of the village.
Further it says that to the extent that Bevnol proceeded with the works connected with the village, it did so on its own accord and not by reason of any act or omission on the part of Seachange.
Thus, it appears to me that the documents disclosed by Brereton which relate to the village project generally are potentially relevant to the existence of the village project, the scope of the village project, the question of whether there was a concluded agreement as alleged between Seachange and Bevnol in relation to that project, and the assessment or testing of Bevnol's claim for damages by reason of the alleged breach of the development agreement.
Each of the documents claimed not to be relevant appear to me to potentially be relevant to either the establishment of these matters or the credibility of witnesses giving evidence as to these matters.
Seachange has brought its own financial situation into scrutiny because of its reliance upon what it says are its financial losses arising out of Bevnol's breach of the contract. It will also need to rely upon the financial arrangements it has made in respect of the development agreement in defending the counterclaim insofar as it relates to a claim for breach of the development agreement.
Further, Lustig has, in paragraph 8 of his affidavit, provided evidence as to the relationship between Seachange and various other companies. The relevant part of that paragraph reads as follows:

[52]

It is clear from that the redevelopment of the Ocean Grove Hotel was part of the Seachange Retirement Development. Accordingly, it is a matter relevant to the scope of the development works and thus potentially relevant to the counterclaim.
The only entity named in the documents produced to the Tribunal by Brereton which is not referred to in the Tribunal pleadings is Pital Business Pty Ltd. I have already reproduced the reference by Lustig to this company at paragraph 158 above.
The affairs of Pital are referred to in documents numbered 811 and 817-829.
Document 811 is an email from De Simone to various parties regarding the question of whether ZMB Australia will meet its mandatory call obligations and regarding payment to suppliers in respect of the display suite.
The final matter dealt with in this email is the status of the payment to Akron Roads.
Document 817-829 document consists of an email from De Simone to various persons regarding a transfer from ZMB to Pital.
It is accompanied by a 12-page document which is headed Galambos Partnership Flying Minute Contributions and Entitlements. The document is a deed between all the partners of the Galambos Partnership giving effect to transfer of some partnership contributions and in particular a transfer from ZMB Australia Pty Ltd of some of its contributions and units of entitlement to Pital Business Pty Ltd.
Bevnol says that these documents, insofar as they relate to Pital and ZMB, are relevant because these documents might throw light on the relationship between Seachange and the Galambos Partnership and thus go towards establishing or testing Seachange's assertion that loan funds were provided to it by Galambos Pty Ltd for the purpose of the development.
Bevnol relies upon the oral evidence of De Simone given before the Tribunal on 6 July 2007. That evidence was given in circumstances where Bevnol was seeking the joinder of further respondents, including De Simone, to these proceedings. De Simone gave evidence as to the financial state of Seachange. At page 43 he said this:

[63]

The concept of legal professional privilege is a concept well rooted in the common law. Legal professional privilege arose from the need to encourage clients to provide full and frank disclosure to their lawyers so that those lawyers could provide legal advice based on an understanding of all of the circumstances relevant to the giving of that advice.
It also evolved in order to enable the client to provide complete instructions to a lawyer during the conduct of litigation.
Thus at common law it could be said there were two aspects of legal professional privilege, the one being privilege in relation to the obtaining of legal advice and the other being privilege in relation to the conduct of litigation.
The test has been set out in many recent authorities. A recent significant High Court decision is Esso Australia Resources v. Commissioner of Taxation [1999] HCA 67; 201 CLR 49. This case confirmed that legal professional privilege, or client legal privilege, will operate to protect the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court, where that communication is made for the dominant purpose of seeking or giving legal advice or obtaining or providing legal services in respect of litigation
In this decision the High Court declined to follow the previous authority of Grant v. Downs in which legal professional privilege was held to apply only if the communication came into existence for the sole purpose of obtaining legal advice or obtaining legal services in connection with litigation.
These principles were recently the subject of codification by reason of Part 3.10 of the Uniform Evidence Act 2008. It appears to me that this proceeding, being an application which commenced to be heard prior to 1 January 2010 is not a proceeding to which the Uniform Evidence Act applies. This is consistent with the reasoning in The Queen v Carmody (2010) VSCA 41, which is the only authority of which I am aware on this issue.
By s 98 of the VCAT Act the Tribunal is not bound by the rules of evidence, may inform itself on any matter as it sees fit, and must conduct each proceeding with as little formality and technicality as a proper consideration of the matters before it permit. Therefore the rules of evidence apply to VCAT only to the extent that they are adopted by the Tribunal.
It is my view that in considering the application of legal professional privilege, the rules of evidence should clearly apply.
Neither Seachange nor De Simone has made submissions on the applicability of the Uniform Evidence Act 2008. Nor have they provided me with any submissions at all as to the principles of legal professional privilege which they contend for in this application.
One of the significant aspects of the privilege to which they have failed to give attention is the need to consider the nature of the communication for which privilege is claimed. Privilege does not attach to documents per se. It attaches to confidential communications. As is was pointed out by Dawson J in Baker v Campbell (1983)153CLR 52 at 122:

[65]

I note that this passage contains reference to the sole purpose test, now redundant as a result of Esso. However the description otherwise stands as good law.
It will be apparent from the factual findings which I have made in this case, that the distinction between the sole purpose and the dominant purpose test has little application to my decision in this proceeding.
Apart from the failure of De Simone and Seachange to address the need for each document to be able to be characterised as a confidential communication, it does not appear that there is any real controversy between the parties as to the law relating to legal professional privilege. The crucial issue in this case is to establish the facts which give rise to the privilege.
Although De Simone has prepared a spreadsheet setting out a reference to each page number of the document that is said to be privileged, he has provided scant details to describe each of the documents in relation to which the claim for privilege is made and no details as to how it is that he says the document comes within the protection of legal professional privilege other than the references in his affidavits which I have reproduced above.
In its written submissions, Seachange makes brief reference to its claim of privilege but does not identify any of the documents in relation to which privilege is claimed other than the supporting spreadsheet reference of De Simone.
In the absence of any considered or detailed submissions as to the application of legal professional privilege to the documents over which it is claimed, it has been my task to look at each of the documents individually and make a determination as to whether the claim for privilege can be maintained on the facts as they are established in the affidavits filed on behalf of Seachange and De Simone.
In making this assessment I am aware that De Simone acts on his own behalf, and although it appears from the way that this case was argued before me and from the material filed that in preparing his claim for privilege he has had considerable assistance from Mr Lustig, I accept that it is my responsibility to carefully identify whether a potential claim for privilege can be made out on his behalf.
In the context of this case I take the critical elements to be as follows. Firstly, that the documents sought to be protected can be properly described as a confidential communication made between Seachange or de Simone and a lawyer acting on their behalf, or the contents of a confidential document prepared by Seachange or De Simone or another person. Secondly, that the confidential communication or confidential document is prepared or made for the dominant purpose of the lawyer who was at the time acting for Seachange or De Simone providing legal advice to De Simone or Seachange or for the dominant purpose of that lawyer providing Seachange or De Simone with professional legal services relating to a proceeding or anticipated or pending proceeding in which De Simone or Seachange is or may be, or was or might have been, a party.
It is from the standpoint of these requirements that I have assessed each of the documents in relation to which the claim for legal professional privilege or client legal privilege is made.
In my perusal of the documents in relation to which privilege is claimed in this proceeding it is apparent to me that privilege has been claimed in respect of very many documents which are not on their face confidential communications or confidential documents, and which do not appear to have been made between Seachange or De Simone and a lawyer, or prepared by Seachange or De Simone for the dominant purpose of providing legal advice or in preparation of litigation.
The privilege is that of the client, not the lawyer. However, it is crucial to establish that the communication was made to a lawyer. The first question I must therefore determine is who the lawyer is and whether either Seachange or De Simone was his client.
It is not possible to claim client legal privilege simply because a document has been forwarded to a lawyer, even if that lawyer has been engaged by the client for other purposes. It is not enough to show that a particular lawyer is the client's customary lawyer, or is acting for the client generally in relation to other of the client's affairs.
As it was expressed by Lockhart J in Somerville v ASC 131 ALR 517 at page 525 -

[76]

Bevnol has not required cross-examination of De Simone or Lustig. It objects to the late filing of this affidavit, but has not sought to challenge the matters contained in it.
I expect that this is because there is nothing in the affidavits of De Simone or Lustig which expressly asserts that Chrapot acted at any time as solicitor for Seachange.
As I have said, neither the formulation under the Uniform Evidence Act nor the common law formulation of legal professional privilege will be sufficient to protect a document which is sent to a person merely because the recipient is a solicitor or has a practising certificate.
Thus, whether or not Mr Chrapot was, as Mr Lustig asserts, an "Australian solicitor" no privilege will attach to documents held by him merely because he has this qualification. The protection of the privilege will only be available if all of the elements of the privilege are made out.
However, even if I were to accept that Chrapot was a solicitor, or had acted as lawyer for De Simone or Seachange in some way during their relationship, in my view the circumstances described in the affidavits filed on behalf of Seachange and De Simone do not attract the protection of legal professional privilege for the documents identified in this application.
This is because there is no suggestion in any of the affidavits that any of the documents which Chrapot has provided in response to the summons came into Chrapots possession either for the purpose of him providing legal advice to Seachange or Desimone or for the purpose of the provision of legal services in connection with litigation.
Conscious that De Simone is representing himself and may not be assumed to be aware of the elements of the privilege, I have inspected each document for which the claim of privilege is made to ascertain whether it may be argued otherwise.
The first such document is document 96-99 dated 1 May 2007. Its Description is GDS to Chrapot replying to page 92 document.
This is an email exchange between Mr Chrapot and De Simone. It appears to be a report from Mr Chrapot as to various items. There is no suggestion in the document that the information has been provided by or requested from Mr Chrapot in any capacity as lawyer to either Seachange or De Simone. There is no suggestion in the document that the document was prepared for the purpose of obtaining legal advice.
Although Bevnol is referred to in the document, there is no suggestion in the document that it was prepared for the dominant purpose of either De Simone or Seachange being provided with professional legal services relating to this or any other proceeding. It is my view that the document is not the subject of privilege.
Document 38-41 dated 21 March 2007 is headed Development Action List. This is a 7-page document dated 21 March 2007 which appears to identify issues still to be attended to in the development. I have no evidence as to the purpose for which this document was prepared or who prepared it. I have no evidence as to whom it was directed.
Although a member of counsel is named in the document the document does not indicate the capacity in which that member of counsel is named or describe any legal advice or confidential document or information provided to that counsel or provided by that counsel.
A solicitor is also named at 2.2. The same comments apply in relation to that solicitor. The VCAT litigation is referred to at 3.1 but not in terms which would attract the privilege.
There is nothing in this document to characterise it in any way as a confidential communication made for the purpose of obtaining legal advice or assistance in litigation.
Document 137 -142 is dated 3 July 2007 and headed GDS - Hamish Easton re insurance for Stage 2. This document is a series of email exchanges between De Simone and his insurance broker in relation to the obtaining of builders warranty insurance for the project. There is nothing in these documents or otherwise to indicate that these documents have been prepared either for the obtaining of legal advice or for the purpose of this litigation. Accordingly the claim for privilege for this document is not made out.
Document 143 dated 11 July 2007 is headed Chrapot - GDS re status of hotel works, stage 2 works, Bevnol dispute, Building Appeals Board. This document is an email and attached document headed "Overview of Seachange Village Ocean Grove 10 July 2007".
The email indicates that there is a further attachment described as "Development - Action List - Amended 2006 1213(4) doc".This second attachment is not in the materials provided to the Tribunal.
I have no evidence as to whom it is who has compiled the document headed "Overview of Seachange Village Ocean Grove" or the attached document headed "Project Seachange - the Village Ocean Grove status 27 June 2007". It appears to be a list of matters which require completion and an update of the document 38 which I have previously described. There is no reference in the body of this document to the Bevnol dispute except a note that Bevnol has been terminated as builder. In my view this document is not the subject of a valid claim for privilege.
Document 171 dated 16 January 2008 is headed GDS - Chrapot re works to be done. This document is an email from De Simone to Mr Chrapot with instructions as to various matters to be attended to on the project.
There is no suggestion in this document that the works described relate in any way to the receiving of legal advice. The document is not privileged.
Document 173 dated 1 February 2008 is headed Chrapot - GDS re alternate builders and building surveyors. This document is in a similar category to the previous document 171. It is an email from Mr Chrapot to De Simone in relation to various aspects of the construction. There is no aspect or characteristic of this email which would suggest that it is a privileged communication.
Document 175 dated 3 February 2008 is headed GDS - Chrapot re payment of his retainer and new building surveyors. This is a request by De Simone to Mr Chrapot for a report as to the tasks he is working on, with particular reference to the engagement of a new surveyor. There is nothing in this document which suggests that it was made for any purpose of either the obtaining of legal advice or the provision of professional legal services in relation to litigation.

[79]

In support of this assertion, Lustig exhibits various documents to his affidavit which he says support his contention that Brereton acted as solicitor to Seachange. Exhibits PSL-1 and PSL-2 to his affidavit are a letter from him to Mr Brereton seeking return of documents and a letter on Brereton's letterhead as solicitor responding.
Although the Lustig affidavit does not say so clearly, I take it that Lustig wishes me to draw the inference from Mr Brereton's answer to the correspondence that Brereton's answer is an admission that he was acting on behalf of Seachange in respect of the material in the 20 boxes of documents referred to in that letter, and so must have been acting for Seachange in respect of the proceeding before me.
Mr Lustig has exhibited various documents to his affidavit relating to a separate proceeding in this Tribunal in the Legal Practice List numbered J89/2008. There are orders in this proceeding compelling Brereton to return some files to Seachange. His affidavit does not clearly say so, but I presume these orders are also relied on to show that, in the proceedings to which these orders relate at least, Brereton acted as solicitor for Seachange.
It is necessary to detail some of the background to proceeding J89/2008. This proceeding was an application by the Legal Services Commissioner under the Legal Profession Act seeking that Mr Brereton be dealt with for professional misconduct and other various offences applicable to his practice as a solicitor under the Legal Profession Act 2004.
The proceeding comprised 19 disciplinary charges against Mr Brereton arising out of five separate matters. One of those matters was what was described in the judgment as being "the Collendina Project" which was a project relating to the purchase and development of land at Collendina for a retirement village.
The particular matters which were the subject of the charges and of which Mr Brereton was found to be guilty by the Tribunal appear to be relevant to the proceeding before me only insofar as it is clear that the purchaser of the land at Collendina was Seachange, the applicant in this case, and the land is the land on which the building works the subject of this proceeding were to be constructed.
After a hearing lasting seven days, the Tribunal found Mr Brereton guilty of misconduct in relation to certain of the charges and some of these findings related to his conduct in respect of what the Tribunal described as the Collendina Project.
Mr Lustig relies on certain extracts from the judgment which he says show that Brereton dealt with funds held in his trust account for Seachange and acted as his solicitor. Exhibit PSL-6 is 13 pages of that judgment. The precise findings of the Tribunal are not identified by Mr Lustig but I presume that he relies upon the fact that the Tribunal found the charges under the Legal Profession Act made out and in particular found that the acts of misconduct occurred in the course of engaging in legal practice.
The extracts from the judgment relied upon by him appear to be based upon the Tribunal's acceptance of the fact that Mr Brereton acted as solicitor for Seachange Management Pty Ltd and Seachange Village Nominees Pty Ltd in respect of the matters which were the subject of the charges.
Mr Lustig also exhibits two invoices sent from Mr Brereton's legal firm, one dated 23 April 2007 which appears to be a disbursement account entitled "Seachange Retirement Village", covering invoices which appear to have been generated between 10 October 2004 and 30 June 2004 and another document also described by Mr Lustig in his affidavit as an invoice, being dated 28 May 2007 and headed "Loan Account on behalf of Walton Finance funds used to pay" and identifying disbursement of a total amount of $303,115.80 to 13 separate entities.
I note in considering these documents that neither of them appears to be an account for legal advice and neither of them identifies in respect of what matter or for what purpose these disbursements have been incurred or funds paid.
In the affidavit of Brendan Archer sworn January 2010, Bevnol has provided further evidence as to the role of Mr Brereton in connection with the development and particularly as to whether or not Mr Brereton acted as solicitor for Seachange at the time the documents the subject of this application were generated.
At paragraph 4 of that affidavit he refers to and sets out paragraph 15 of the affidavit of De Simone sworn 14 September 2009 in separate proceedings in the Supreme Court. That paragraph reads as follows:

[81]

At paragraph 5 of his affidavit Archer also deposes that all dealings of his office regarding Seachange files since December of 2006 have been with Lustig and that that firm has received no correspondence from Mr Brereton in his capacity as solicitor, or in any other capacity.
He points out that the exhibits to Mr Lustig's affidavit of 16 December which are described as invoices, pre-date the dispute between the parties by several years and that neither of the documents appears to be an invoice for legal services.
There does not appear to be any direct claim by De Simone that Mr Brereton acted as solicitor on his behalf as distinct from having instructions to act on behalf of Seachange.
I do not regard the evidence which has been produced by Seachange as establishing that Brereton acted for Seachange at the time he received the documents which he has produced on subpoena, or that the documents were forwarded to him in his capacity as solicitor.
As I have outlined above, the issue which I must decide is not whether Mr Brereton acted as solicitor to Seachange or to De Simone in relation to some other disputes or matters on which legal advice was required during the time when these documents were generated, or at the time when he received the documents which are the subject of this application.
The question is whether the documents which are the subject of this application were generated or received in order for Mr Brereton to provide legal advice to De Simone or Seachange or assistance to Seachange or De Simone in litigation.
There is no evidence of this at all in the affidavits filed by Seachange or De Simone.
As with the documents provided by Chrapot, I have inspected each document produced by Brereton in respect of which legal professional privilege has been claimed to ascertain whether it could be characterised in this way.
The first document is Document 215. It is described as Title for Lot 2 Seachange Village. It is in fact an email from De Simone to Brereton and others seeking the whereabouts of a duplicate certificate of title. There in nothing in the email to justify a claim for privilege.
Document 792-793 is headed Seachange- commercial in confidence-for discussions. It is a lengthy email from De Simone to Brereton dated 25 March 2007. It is copied to Marie Brereton and Kristen Moran.
The subject matter of the email is discussion of financial issues to do with the Seachange project. Its assets and liabilities are set out in detail. A proposal is made in relation to the partnership agreement deed and funding of the project.
The document does not seek legal advice. It appears to be directed to the gaining of agreement by the parties to which it was sent as to the financial proposals set out in that letter
I have set out my conclusion that there is no evidence advanced by De Simone or Seachange that Brereton received any of the documents which are the subject of this application in his capacity as solicitor. The content of this email is consistent with this conclusion.
I find no privilege attaches to this document.
Document 1119 dated 1 May 2007 is described as Seachange v Bevnol Without Prejudice. This is a document addressed to two representatives of Bevnol. It is clearly not a confidential communication and cannot on its face have been generated for the purpose of providing legal advice or providing professional legal services in a proceeding.
I am not determining in relation to this document whether the fact that it is marked 'Without Prejudice' means that it is not to be produced at trial. It can, however, not be the subject of a claim of privilege.
Document 1171 dated 4 May 2007 headed Seachange Management against Bevnol 06066. This is an email from De Simone to various persons forwarding on without comment a series of emails between Mr Lustig and the solicitor for Bevnol in relation to alleged repudiation of the contract and acceptance of the repudiation. This document is clearly not the subject of privilege, as the correspondence between the solicitors is not privileged.
Document 140 dated 18 May 2006. The description is Seachange Village - licence agreement (to Darrer Muir Fleiter). This is an email from De Simone addressed to Mark Darrer. It encloses a draft licence agreement.
I understand Darrer Muir Fleiter to be a firm of solicitors, although this is not deposed to by De Simone. If De Simone could establish that in receiving this document Mr Darrer was acting as his solicitor or as solicitor to Seachange then this email and the draft document might well be protected. The contents of the email suggest that this is so.
I have no evidence one way or the other and this issue has not been referred to in either the affidavits or submissions filed on behalf of either De Simone or Seachange. I have decided not to release this document at this stage. If Bevnol wishes to pursue its application for inspection in respect of this document, I will grant leave to De Simone to call evidence of the circumstances of its creation.
Document 169 dated 8 May 2006. The heading is Seachange Village (to TSA Lawyers). Although this appears to be an email to a firm of solicitors, it is a request for information as to whether that firm acts for parties who have lodged the document referred to in the email.
There is nothing either in the document itself or otherwise to indicate that this document was forwarded for the purpose of obtaining legal advice or being provided with professional legal services. Indeed the wording of the document is to the opposite effect. Accordingly the document is not privileged.
Document 186 undated, described as Seachange licence agreement (draft by MB & Co). This appears to be a draft licence agreement. The name Michael Brereton & Co appears on the front of the agreement but he is not described there or elsewhere as a solicitor to either Seachange or De Simone or any other entity. There is no evidence as to for whom this document has been prepared or the circumstances of its preparation.
There is therefore currently no evidence before me that the document is a confidential communication or the contents of a confidential document prepared for the dominant purpose of providing legal advice to the client.
Out of an abundance of caution, I have decided not to release the document at this stage. Prior to its eventual release, if Bevnol requires to inspect it, I will allow the calling of evidence to establish the circumstances of its creation.
Page 293 dated 30 June 2006 headed Seachange payments made today. This document is an email from De Simone to various persons including Mr Michael Brereton setting out payments made apparently by Seachange to various entities.
There is nothing in the document which indicates the capacity in which Mr Brereton has been sent a copy of this email. There is nothing in the email justifying a claim for privilege.
No. 456 dated 2 February 2007. This is a one page email which appears to have attached a minutes of meeting and inspection report. Those minutes and inspection report are not in the documents provided. The email itself has no content apart from enclosing these documents. It is sent to Mr Brereton and another person.
There is no suggestion in the document that it has been sent to Mr Brereton in his capacity as a lawyer either in relation to the obtaining of legal advice or being provided with professional legal services.
This email is therefore not privileged. In making this determination I note that I have not seen or ruled on the documents said to have been enclosed in the email.
Document 539 dated 21 February 2007 headed Seachange Village - NAB declines to provide terms. This is a series of emails between De Simone and various other parties, apparently in relation to an application for finance to the National Australia Bank. There is no evidence in this email exchange of any reference to the obtaining of legal advice for any purpose. The document is not privileged.
Document 744-750 dated 14 March 2007**. Seachange Village - need for funds and books of account - commercial in confidence.** This document is a lengthy email from De Simone to representatives of the various Seachange entities. Mr Brereton is named as one of the many recipients of the email. Page 750 is an account from Akron Roads Pty Ltd.
The content of the email appears to be in the form of a report to these various entities on the financial position of Seachange. Brereton is mentioned in his capacity as having a financial interest in Seachange, but not in terms which suggest that he is being asked in the email to provide any legal advice.
Although clearly the recipients of the document might well regard it as a confidential document - it is headed "Commercial in confidence" - it is not protected by legal professional privilege. No legal advice is requested in the document. Further, although its contents may well relate to the litigation in this proceeding, it is not a document which could be described as being a document made or prepared for the dominant purpose of either Seachange or De Simone being provided with professional legal services relating to this proceeding or any other proceeding.
Document 786 dated 21 March 2007 headed Seachange Village - Brereton reconciliations. This is an email to Mr Brereton. There is no identification in the document as to what the Brereton reconciliations are. There is no evidence that Mr Brereton received the document in his capacity as lawyer or that it related in any way to the provision of legal advice or preparation of litigation. Accordingly, the document is not privileged.
Document 787 also dated 21 March 2007 headed Seachange Village discussions with Daryl Clark at Bank West. This is a document from De Simone to representatives of various of the De Simone entities and including Michael Brereton, describing the financial position of Seachange and in particular a discussion which he has had with the representative of Bank West.
There is nothing in this document which indicates that Mr Brereton was sent this document in his capacity of lawyer or that the document comes under the protection of privilege.
Document 798-808 is dated 27 March 2007 and headed Seachange - Trust - ledger movements. This is an email from De Simone to Mr Brereton and Kristen Moran referring to trust report entries. Attached to the email is a printout of what appears to be suggested or draft account entries.
I will presume for the purpose of considering this email and the entries which follow that it relates to trust account entries of Mr Brereton's legal firm, although I have no evidence before me one way or the other as to this. The email is in the form of instructions to Mr Brereton apparently as to some reconciliation to be made to the entries.
I presume that Moran is employed by Brereton's legal firm. However, the email does not request legal advice or assistance. It is a clear direction to Brereton to make various accounting entries.
There is nothing in the documents which could be described as a confidential communication or document made or prepared for the dominant purpose of being provided with professional legal services.
Document 809 dated 27 March 2007 is headed Seachange - Trust - ledger reconciliation. This is an email from De Simone to the various representatives of the Seachange entities, and also to Brereton.
The email commences, "Hello partners". It describes directions that De Simone appears to have given to Mr Brereton in relation to the preparation of documents and the raising of invoices as described in document 798-808.
There is no evidence before me that this document was sent to Mr Brereton in his capacity as lawyer for either Seachange or De Simone. Given that I have found that there is no evidence that Brereton was acting in the capacity of solicitor in receiving documents 798-808 this document is also clearly not protected by privilege.
Document 1039 dated 17 April 2007 is headed Seachange Village - civil works costings - overall, already constructed and cost complete. This is an email sent by De Simone to various persons at Bank West. It refers to several attachments.
It is not clear to me as to whether all of the attachments referred to in the email are in fact in the documents before me. I also have no evidence at all as to the purpose of creation of either this email or the attachments. It does not appear to have been sent to a lawyer. It does not seek legal advice. It does not refer to any litigation.
There is nothing in the document or the attachments which would support the email or the attachments being described as a confidential document prepared for the dominant purpose of providing legal advice or for the dominant purpose of being provided with professional legal services relating to a proceeding.
Document 1089 dated 24 April 2007 headed Seachange - dates and events in December 2005. This is a short email from De Simone to two persons, neither of whom appear to be lawyers, requesting dates of various marketing events.
Although a copy of this email has been sent to Mr Brereton there is no evidence either through the content of the document or otherwise that it was sent for the purpose of obtaining legal advice or for the purpose of obtaining legal services in relation to this or any other proceeding.
Document 1163 dated 3 May 2007 headed FW - The Computer Supply Store (Australia) Pty Ltd - purchase at Lindfield - 06035. This is an email and attached account from Mr Lustig in relation to legal work carried out and apparently billed to The Computer Supply Store (Australia) Pty Ltd.
Although The Computer Supply Store has not joined in this application, I express the view that that company may be able to claim privilege in respect of these documents. I have no evidence as to the basis on which either De Simone or Seachange can make a claim for privilege in relation thereto.
I have decided not to release the document at this stage. If Bevnol requires inspection of this document, I will grant leave to the Computer Supply store to lead evidence of the circumstances of its creation.
Document 1198 dated 17 May 2007 headed Seachange Village - documents - commercial in confidence. This is a series of emails in relation to what is described as an intending possible purchaser. Although the document is copied to Mr Brereton it does not appear to either relate to the attaining of legal advice from him or from any other lawyer or to relate to any litigation is not made out. Accordingly, the claim for privilege in respect of this document is not made out.
Document 1192 dated 14 May 2007 is headed Seachange - Impact of Peter Hayes situation. This is an email to Kristen Moran from De Simone relating to the impact of the heart attack of Peter Hayes of counsel on matters in which he may have been engaged as counsel.
For the purpose of considering this email I presume that Moran is an employee of Brereton's legal firm. I have referred to the evidence that Brereton acted for Seachange in some litigation, although not the litigation in this proceeding.
I am prepared to assume that the matters referred to in this email may relate to that other litigation. On that assumption the email is capable of being characterised as a privileged document if appropriate evidence was led. I have decided not to release it at this stage.

[85]

Document 1155-1162 is headed Seachange Management Pty Ltd general files. It contains correspondence between Lustig and De Simone relating to this litigation and is clearly privileged in Lustig's and De Simone's hands.
I have no evidence as to how this document came into the possession of Brereton. I recognise that in order for this document to be protected by privilege this issue needs to be further explored. I will order the document not be released at this stage .
Documents 1145 and 984 also appear to me to be privileged documents in the hands of Lustig.
Document 1145 is headed Seachange - draft of acceptance of repudiation letter and is an email from De Simone to Lustig giving instructions as to a draft letter of repudiation.
Document 984 dated 10 April 2007 is wrongly described as an affidavit of Bruce Jamieson but is in fact an email from Peter Lustig enclosing an affidavit of Bruce Jamieson filed on behalf of Bevnol.
There is no privilege attached to the affidavit itself as it has been filed in this Tribunal hearing. The most recent authority I rely on as establishing this is Australian Consumer Commission v Cadbury Schweppes Pty Ltd (2009)FCA FC 32.
The email itself is privileged because it contains advice from Lustig to De Simone in respect of the affidavit. I accept that Lustig acted as solicitor for Seachange in sending the email and that the purpose of the email was to provide advice to De Simone in his capacity as director of Seachange regarding this litigation.
As with document 1155-1162, I recognise that there is no evidence before me that documents 1145 and 984 were provided to Brereton for the purpose of obtaining legal advice from him. However, cautious because of the content of these documents and my finding that in Lustig's hands they would certainly be privileged, I will order that these documents not be released at this stage.
Document 1023 dated 13 April 2007 is described as Seachange v Bevnol 06066. This is an email from De Simone to Mr Lustig describing issues relevant to the conduct of these proceedings arising out of a building experts report. This document is privileged for the same reasons as I have set out in discussing document 984.
Document 1193 - 1196 dated 17 May 2007 headed Seachange and Bevnol. This is an email exchange between De Simone and Mr Lustig and counsel engaged by Mr Lustig in this proceeding. It is clearly privileged, subject to establishing the circumstances in which it came to be in Brereton's possession.
If Bevnol requires access to the documents I have identified in this section, I will allow evidence to be called by Seachange to address the question of how these otherwise clearly privileged documents came into Brereton's possession.

[94]

Here, I understand the argument of Seachange to be that the persons to whom various emails were sent were part of the Seachange group, that group being a partnership or joint venture or some other financial arrangement underpinning the Seachange development.
It is true that there has been only a cursory attempt by De Simone or Seachange to establish the facts which go to proving the connection between Seachange and the other entities to which these emails were sent.
However, I also note that in Yunghanns, Warren J pointed out that for the purposes of an application such as this, the Court is not required to make findings of fact about the relationship. Indeed, she found it would have been totally inappropriate for her to have made such a finding of fact in the case before her, at what was a very early stage of the litigation.
She expressed the view that the Court need be satisfied of no more than that the parties asserting the joint interest have an arguable case as to the existence of such an interest.
I have determined that there is sufficient evidence before me in this application to accept that there is an arguable case that Seachange and the parties nominated by De Simone have a joint interest in this litigation.
But that is not the end of the matter. Proof must still be made that the documents exchanged between those entities are otherwise privileged.
I have been provided with very little factual information which could enable me to make such a determination.. I have therefore considered each of the emails in relation to which this ground is claimed to ascertain whether they may be so characterised.
The first document I will consider is Document 1117 dated 30 April 2007 headed Seachange - discussions with an investor - ZMB - Bevnol - legal privileged and commercial in confidence.
Although this document is headed "legally privileged" the first part of the document deals with a potential investor in the project and various financial issues in relation to Seachange.
Seachange and De Simone and the recipients of the email may well have regarded the document as confidential, but there is in my view nothing in the first part of the email which supports a claim that it is a confidential communication made or a document prepared for the dominant purpose of providing legal advice or being provided with professional legal services.
Part of the second page of this document contains a description of the current state of the VCAT proceedings and a description of legal advice received. It is my view that this document should be released but that all of the second page of the document, from the sixth line down (commencing "there was a hearing today at VCAT")
The deleted section is in my view covered by privilege. It is undoubtedly a report as to the stage the litigation has reached, and it is directed to entities which appear to be associated with Seachange.
Document 1130 dated 2 May 2007 described as Seachange and Bevnol 06066. This document is a report by De Simone to persons representing the various Seachange interests in relation to an account forwarded by Mr Lustig for his services in this proceeding. This document and its attachments which range from pages 1130 to 1162 are clearly privileged.
Document 1050 dated 20 April 2007 is described as Seachange - Bevnol offer to settle. This is an email from De Simone to representatives of various interests in the Seachange group, attaching an offer of settlement of these proceedings and commenting on it. In my view this document comes within the protection as having been made for the dominant purpose of being provided with professional legal services.
Document 637-650 dated 1 March 2007 headed Seachange and Bevnol - FYI. This is an email from De Simone to various entities simply forwarding on documents received from Lustig, being what appears to be the Points of Claim and two letters from Lustig. One of the letters is addressed to the solicitors for Bevnol and the other to the Registrar of the Building list at VCAT.
None of these documents are the proper subject of a claim for privilege, and neither is the email.
Document 1147 dated 3 May 2007 headed Seachange Management v. SRO - Bill. This is an email to De Simone from Mr Lustig and the contents of this email are copied to various representatives of Seachange entities including Mr Brereton. Mr Lustig's email relates to his costing of his file in this proceeding. In my view the email and the attached account are privileged.

[95]

There are several other documents which are not communications to Seachange interests, but communications to Seachange banker, Bank West.
There are three such documents disclosed by Brereton which are emailed reports of various kinds by De Simone to Bank West. They are documents 16, 1206 and 225.
It is conceivable that the concept of joint privilege may, in some circumstances, attach to communications between a person and that person's banker if the tests which I have outlined above could be satisfied.
For instance, in DSE (Holdings) Pty Ltd v Intertan Inc. [2003] FCA 1191; [2003] 203 ALR 348, the Federal Court held that communications about the acquisition of a business between investment bankers attracted legal professional privilege.
However, there are no factual matters asserted in this case to justify privilege being claimed on that ground. In order to attract privilege it must be shown that the communication between De Simone and Bank West was created for the dominant purpose of use in or in relation to existing or anticipated legal proceedings, or in the context of a request for legal advice. No privilege attaches to a communication from Seachange to its banker simply updating the banker in relation to litigation, or in relation to other financial or legal issues.
Document 16 dated 1 March 2007 is headed GDS to Bank West - status report. This document appears to be a description by De Simone for Bank West as to the status of the project and the progress of construction. It also contains reference to the VCAT proceeding.
In paragraph 12 of the above document reference is made to the outcome of an interlocutory application before VCAT and De Simone expresses views on the outcome of the case.
There is no indication in that document that the report, including the reference to the VCAT proceeding, was required in order to discharge an obligation which would be protected under the authorities I have considered above. Accordingly it is not a protected communication.
Document 225 is dated 27 April 2006 and headed Seachange Management legal action settled. This document is an email from De Simone to what appear to be a banker and a lawyer various parties regarding financial issues concerning the putting in place of securities concerned with the development.
From the content of that document, it is clearly not addressed to any of those parties as lawyers for Seachange or De Simone.
I have considered whether it could be said that De Simone had a reporting obligation to the bank which would render the document privileged.
In my view it is not protected. It cannot be described as a confidential communication or the contents of a confidential document prepared for the dominant purpose of providing legal advice to De Simone or Seachange or providing legal professional services to those entities. There is no evidence that it is a report by De Simone to a party to which he had a reporting obligation.
Document 1206 dated 23 May 2007 is an email from De Simone to a representative of Bank West regarding contact to the bank by police in relation to the criminal investigation. The content is comment on the police investigation.
This document is not protected as it is not a document prepared for the dominant purpose of obtaining legal advice or for the dominant purpose of being provided with professional legal services. The fact that it relates to potential criminal proceedings against De Simone does not protect it from disclosure under client legal privilege.

[96]

Mr Archer exhibits to his affidavit a list of various of the documents in relation to which confidentiality and privilege have been claimed in this proceeding which have been produced as exhibits to affidavits in other proceedings. He asserts that the production of these documents in these other proceedings constitutes a waiver of any rights to privilege or confidentiality in respect of these documents.
It is, in my view, unarguable since ACC v Cadbury Schweppes that any document for which privilege is claimed loses that privilege in the event that it has been relied on by the party claiming privilege in other litigation.
I have not been able to marry up the list provided by Archer with the documents I have examined. However, this administrative exercise seems in any event of little practical value as Bevnol would already have access to these documents. I expect the submission is made to suggest De Simone is not bona fide in making his submissions in this application.
Bevnol made a strong submission that were I to find that any of the documents were otherwise protected by client legal privilege, the privilege should not be upheld in circumstances where the communications were made for the purpose of guidance or assistance in the commission of a fraud, or to frustrate the legal process.
In particular, Bevnol says that privilege does not protect communications disclosing an intention to frustrate the processes of the Tribunal, nor to protect communications between a lawyer and client for fraudulent or illegal actions.
Although Bevnol has provided lengthy examination of Seachange pleadings and filed material in support of this assertion, it seems to me that to make a decision on this issue would require me to hear witnesses and form a view on fundamental issues in this case.
The outcome would affect only the small number of otherwise privileged documents which I have identified in this section of my reasons.
I propose to decline to rule on this assertion at this interlocutory stage of the proceedings.

[98]

De Simone wishes to call both Brereton and Chrapot to give evidence. He has not specifically said that he wishes to elicit evidence from them as to the claim for legal professional privilege, but I will assume this is so for the purpose of considering this issue.
As he has not said exactly what evidence he expects they will give, I assume that relevant evidence they may be able to give will relate to whether or not they received the documents in the capacity of legal adviser to Seachange.
However, in relation to Chrapot I already have evidence from Lustig and De Simone, and an affidavit filed by Chrapot himself, in which Chrapot is described as a construction manager, not as a solicitor. It is unlikely in the extreme that any credible evidence will be able to be called to the contrary.
Even if this evidence was called, I have inspected all of the documents and have decided that absent the exceptions identified in my orders, none of those documents can be sensibly characterised as a confidential communication made for the purpose of giving or obtaining legal advice or in connection with this litigation. The claim to privilege for the remaining documents thus could not be made out even were such evidence to be accepted.
In relation to Brereton, similar considerations apply. The question is not whether he acted as solicitor for Seachange generally. It is whether the documents he has produced to the Tribunal can be described as confidential communications made available to him for the purpose of giving legal advice to Seachange or De Simone or for the purpose of him providing professional legal services to either Seachange or Brereton in connection with litigation.
The privilege does not protect documents per se. It protects confidential communications. Apart from the exceptions I have specified, my inspection has not revealed any document that could possibly be so characterised, even if it could be established that Brereton was the solicitor for Seachange at the time the document was forwarded to him.
I have identified certain documents which may be characterised as privileged depending on the hearing of further evidence. If Bevnol wishes to press with a claim for inspection of these documents, I will allow evidence to be called regarding the circumstances of their creation, or the circumstances in which they came into Brereton's possession.
Otherwise, there is no useful purpose to be served by allowing further evidence to be called as to this ground of objection.

[107]

De Simone has identified five other companies in which he says he has an interest and which he says he is entitled to represent, whose commercial interests or right to privacy he says would be affected by a disclosure of various of the documents under consideration.
Those companies are Galambos Pty Ltd, De Simone Nominees Pty Ltd, The Computer Supply Store (Aust) Pty Ltd, Interesting Developments Pty Ltd and Seachange Village Nominees Pty Ltd.
De Simone submitted that because these documents involved third parties not presently involved in this litigation, the Tribunal should give appropriate notice to those parties of the application and ascertain their views.
He told me that he was the authorised officer of those companies. On their behalf he objects to production of the documents because he says they are either irrelevant to the issues in dispute in this proceeding or production of the documents would be an interference with their commercially sensitive material.
He submitted to me that each of the companies had a sufficient interest in the outcome of this application to intervene in the application.
I made orders on 8 December 2009 which included, inter alia, an order that Seachange and/or De Simone, or any other entity which wishes to join the application, file and serve submissions identifying each party wishing to make objection to disclosure of the documents and the legal basis on which each entity making objection to disclosure has standing to make such objection.
Apart from the oral submissions made to me by De Simone, and the references in the affidavits filed by Seachange and De Simone, I have received no submissions at all from any other entities as to this ground of objection.
I will consider it as best I can on the material before me.
There appears to be little Victorian law on the capacity of a person not connected to litigation, and not the subject of the subpoena, to object to the production of documents in response to a subpoena.
This fact scenario arose in an English case of Marcel and Ors v Commissioner of Police (1991) A11 ER, and in allowing the applicant in that case locus standi the Court observed -

[123]

However, neither Seachange nor De Simone has filed any material specifying exactly how either the commercial interests or privacy of these companies would be affected by disclosure of the documents which are the subject of this application before me.
It seems to me that this ground of objection has been raised to any document which refers to or concerns these companies, or in which the names of these companies has been mentioned.
As neither Mr Lustig nor De Simone have identified the grounds on which each of the documents said to be commercial in confidence are in fact to be so characterised, and because Mr Desimone as a litigant in person cannot be expected to have the legal knowledge to recognise the basis for such a claim, I have individually inspected each of the documents in relation to which this claim is raised.
Having so examined each of the documents in relation to which the claim for confidentiality is made I have satisfied myself that each one of these documents may be characterised as broadly relevant to the applicant's claim.
In particular, those documents which refer to the financial relationships between Seachange and its backers or its lenders, the composition of companies and/or entities having an interest in the Seachange development, the commercial arrangements between various companies and Seachange, exchanges between De Simone and other persons in relation to the building project all appear to me to be apparently relevant to this proceeding.
This is because all of the companies appear to be associated in some way with the development which is the subject matter of this litigation.
It is of particular importance to emphasise, as I have when considering relevance generally, that the claim which Seachange makes in its Points of Claim includes as part of its claim for loss and damages an allegation that it was required to continue to pay interest on three separate loan facilities, and the exact obligations of Seachange under those loan facilities will be required to be proven at trial.
Because this claim has been made, the Tribunal will be required to assess the full extent of Seachange's finances to satisfy itself that Seachange has in fact incurred these obligations. It may be, for example, that Seachange would have been able to mitigate these losses by making payment in some way from its own funds.
Seachange has also claimed a loss of opportunity for the period of time the project was stalled. This loss of opportunity claim is said in the particulars to paragraph 8 of the Points of Claim to be "based upon a total of the opportunity costs of the funds including the bank loan and the interpartnership advances and deposits".
It therefore seems inevitable to me that documents which are relevant to establishing the full financial picture of the Seachange Group of Companies and its commercial relationships will all be potentially relevant in this litigation.
In its submissions, Seachange refers to the document at page 1057 which it describes as "addressing a range of issues to do with the Ocean Grove Hotel." Seachange queries how it could possibly be relevant for Bevnol and its advisors to know the answer to one query posed on that page, namely whether the local football club will conduct the raffle or not.
In truth, however, the document, which is an email from De Simone to a person who appears to have a management role at the Ocean Grove Hotel, canvasses a range of issues in relation to the operation of the Hotel. It canvasses issues to do with staffing, remuneration of staff, daily reports of the operations of the hotel, cash reconciliation, stocktake adjustment reports, and budgets for functions at the hotel.
I have separately indicated my view that the financial background to the operation of the hotel is a potentially relevant issue in assessing the solvency of Seachange and thus the validity of its claim for loss and damage. Although this document and many like it may ultimately have only marginal relevance to that enquiry, at this preliminary stage of the proceeding I am not prepared to rule documents such as this as irrelevant.
Included in the documents in respect of which a claim for confidentiality is made are several documents which may be said to indicate the difficulty of Seachange in paying creditors, or misunderstandings as to the payment of creditors.
Although these documents may perhaps ultimately be characterised as having marginal relevance to the issues in dispute, at the moment it is my view that their relevance is established for the purpose of at least this preliminary stage. At the very least they may be documents which may be described as relevant to the credibility of De Simone or other persons as witnesses in this case.
Often in determining applications for discovery a court or tribunal may make orders to protect confidential information by requiring a solicitor or counsel for a party, or a party itself, to inspect the documents on certain conditions, and to undertake not to disclose the contents of the documents except for the purpose of the court proceeding.
Whether this undertaking is made or not, clearly a party to any litigation is subject to an implied undertaking to use the documents only for the purpose of a case and not for any collateral or ulterior purpose.
This principle is set out in the judgment of Lord Denning MR in Riddick v. Thames Board Mills Ltd [1977] QB 881. The principles set out in this decision have been applied in various Australian decisions and appear to me to be uncontroversial.
Any issues as to confidentiality can be addressed by the making of orders restricting access to the documents to the parties and their legal advisers and reinforcing the rule that the documents may be used only for the purpose of this litigation and not for any other purposes.
Although this was not clearly stated in the material filed in support of this application, I take it that De Simone also wishes to make a separate claim on his own behalf of confidentiality. This appears to arise in relation to his claim that if the documents are released to Bevnol, this release will compromise his defence to or preparation of his criminal trial.
As this issue is closely bound up with his claim that the issue of the summonses is an abuse of process, I will consider this issue when dealing with that ground later in these reasons.

[130]

De Simone has also made a general and brief claim that disclosure of the documents would be in breach of the Victorian Charter of Rights & Responsibilities Act 2006 insofar as such an order conflicted with the right enshrined in s 13 of that Act, being the right "not to have his/her privacy, family, home or correspondence unlawfully or arbitrarily interfered with".
The rights protected under the Charter are rights which attach only to human beings and not to companies. Therefore this argument need only be considered in relation to De Simone himself.
For the purpose of considering the Charter argument, I will assume that disclosure of the documents would engage De Simone's right to privacy under the Charter.
The question then becomes whether or not disclosure is justified under the general limitations provision in s 7 (2) of the Charter. The Charter does not provide for the absolute protection of human rights. It requires this Tribunal to consider whether limitation of the right to privacy can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. It further requires the Tribunal to take into account all relevant factors including -
- (a) the nature of the right;
- (b) the importance of the purpose of the limitation;
- (c) the nature and extent of the limitation;
- (d) the relationship between the limitation and its purpose; and
- (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
I am not aware of any Victorian case in which the Charter right to privacy has been applied in an application to resist discovery of documents in litigation.
In my view disclosure of the documents in relation to which privacy is asserted by De Simone can be demonstrably justified as reasonable having regard to the need for this proceeding to be conducted in a fair manner.
De Simone submitted that disclosure of the documents is unnecessary in determining the issues in this litigation.
I do not agree. The documents are relevant to the case which he and his company seeks to prove. Access to these documents will enable the respondent to litigation to properly prepare its case and to defend itself from the claim brought by Seachange and also to properly prepare the counterclaim against both Seachange and De Simone.
It is clear that access to the documents is constrained by considerations of relevance, privilege, and the other matters raised by De Simone in this application. However, there are no additional matters which I can discern which bear on my consideration by reason of the Charter right to privacy.
There is nothing that I can see in the material of an intensely private or personally embarrassing nature. No objection of this kind has been relied upon on the submissions by De Simone. All of the material under consideration is material which I have found to be otherwise potentially relevant to the resolution of issues in dispute between the parties.
Much of the material appears from its face to have already been disseminated broadly by De Simone to other persons or entities.
For all of the above reasons it is my view that the Charter does not prevent disclosure of any of the documents in respect of which the claim for confidentiality is made.

[142]

The exchange, however, anticipates publication of the material to third parties, and does not affect the determination of the rights as between the parties themselves for inspection of documents.
As far as I understand the stay argument as De Simone puts it, his argument is that any document produced by Chrapot or Brereton which is relevant to the allegations of the subject matter of the stay should be withheld because for this Tribunal to make a decision to release those documents would result in it making a determination relevant to the question referred to the Supreme Court or that in making a determination the Tribunal would be proceeding in a manner or making a determination that was potentially inconsistent with the opinion of the Supreme Court on the question - and thus in contravention of s 33 (2)(b) of the Charter.
This issue has not been specifically addressed in the material filed on behalf of Bevnol.
I am not persuaded that a decision relating to release of documents can necessarily be characterised as a determination relevant to the Charter question or proceeding in a manner or making a determination inconsistent with the opinion of the Supreme Court on the Charter referral.
As I have said, the purpose of the exercise of the power to stay is not to extinguish the causes of action the subject of the stay. It is simply to delay the determination of those allegations so as to avoid De Simone being placed in a position where his ability to defend the civil proceedings is compromised by reason of the extant criminal proceedings.
I do not think it necessarily follows that Bevnol should be denied access to documents relevant to those allegations. I do not think that to grant such access would be properly to be characterised as the making of a determination inconsistent with the opinion of the Supreme Court on the Charter issue.
However, as this point was not the subject of argument, I have analysed the documents in respect of which this submission is made on the assumption that disclosure of documents which are the subject matter of the proposed stay application should not be allowed until the Supreme Court has considered the referral question.
Neither De Simone nor Seachange has identified the manner in which it is said that release of any of the documents identified under this ground of objection would constitute a determination as defined in section 33(2) of the Charter.
I take the view that any such document must be arguably relevant to the circumstances in which the letter was handed over by De Simone, and the question of whether the representations made in the letter or in the giving of evidence by De Simone in this hearing were false.
I have therefore inspected each of the documents in relation to which objection is taken to see if I can discern this myself.

[143]

I now go to the documents provided by Chrapot to ascertain the extent to which these documents relate to those issues which I have identified above.
Document 84 is headed Easton to Chariot re insurance application. It is an email to Chrapot from Hamish Easton, who appears to be an insurance agent, regarding an application form for insurance for the project. The email's date is 27 April 2007, many months after the events alleged in the aspects of the counterclaim for which a stay has been applied. The only reference in that document potentially relating to the issues the subject of the stay is a request for funding details of the developer detailing funding of the project.
In my view that document is not sufficiently linked to the allegations the subject of the stay as to be protected from disclosure on that ground.
Documents 11 through to 18 are documents relating to payments made by Seachange to various entities and documents being emails between De Simone and a supplier, Centurion Doors and Bank West giving a status report. These documents were generated in February and March of 2007. There is nothing that I can see in any of these documents which bears directly upon the stay application.
Document 37 is dated 15 March 2007. It is an email from De Simone to various persons in relation to a meeting to finalise plans for an "interim community facility." There is nothing in that document which appears relevant to the subject matter of the stay.
That document is accompanied by documents 38 -42 which are described as Development Action Lists. The lists are dated 21 March 2007.
De Simone says that page 42 of the Development Action Lists is relevant to the stay. He does not say why.
This document was created 8 months after the events alleged in the counterclaim. It does not directly refer to those events. In my view it is not covered by the stay.
Document 117 is an email from De Simone dated 31 May 2007 to a Mr Del Bosco in relation to payment of his invoice and purporting to explain changes to the Seachange partnership and Bank West's procedures. It was generated 10 months after the events in the counterclaim. I do not accept that it relates to the stay.
Page 119 is a receipt for payment of various accounts. De Simone has indicated that he does not object to the release of this document subject to blacking out the source of funds. This document is dated 30 May 2007. The source of funds to pay for that account seem to me not related to the potential stay application.
Documents 143-152 consists of an email from Chrapot to De Simone and two attachments, the first being described as an Overview of Seachange Village Ocean Grove and the second document being a Development Action List. This email is dated 11 July 2007. The attached documents are dated 27 June 2007.
There is nothing in these documents which appear to me to directly relate to the allegations made in the counterclaim which are the subject of the stay.
Document 166-168 Headed Quote from Dudley for Stage 2 is a quotation for works, the address of which is the site which contains the works the subject of this dispute. On the spreadsheet De Simone comments that the quote does not relate to the works done by Bevnol. As I have previously said, this seems to me an issue which is potentially relevant on the pleadings.
There is nothing at all in the document which links it with the matters the subject of the stay.
The last document which is said to relate to the proposed stay application is document 179. It is an email dated 15 October 2007 which refers to a copy of an indicative letter of offer for the Seachange Village Development from a financial institution. This letter of offer is not attached.
The document is dated 15 months after the events which are the subject matter of the counterclaim. In my view it is not directly linked with the subject matter of the stay.

[144]

The first two of the Brereton documents which are said to relate to the subject matter of the stay are pages 346 and 350. Document 346 appears to be an email from De Simone to an official of the National Australia Bank dated 21 July 2006, inviting that official to attend a planning meeting.
Document 350 is dated 24 July 2006, the date of the alleged meeting referred to in the counterclaim. It is addressed to James Gladman at Fletchers, which is apparently an estate agency, from De Simone. The email relates to details for a launch of the project. It is not clear what connection there is between this document and the matters which are the subject of the proposed stay.
Document 541 is dated 22 February 2007 and is identified as a stocktake spreadsheet. It is in fact an email from De Simone to a person identified as Mark, referring to a stocktake valuation. I am unable to see any connection between this document and the subject matter of the stay.
Document 555 is an email from De Simone to various persons apparently at the Ocean Grove Hotel dated 24 February 2007 regarding staff employment issues and shifts at the hotel. I am unable to see any connection between the matters contained in this document and the matters contained in the proposed stay application.
Document 557 is an email from De Simone to the Ocean Grove Hotel regarding stock figures and profits for the hotel, giving breakdowns for functions. I am unable to see any connection between the matters contained in this document and the subject matter of the stay application.
Document 775 is dated 20 March 2007 and is identified as Seachange Village Corporation structure. It is an email from De Simone to various officials at Bank West providing a corporate structure report of the Seachange Village Project and partnership entitlements
I presume that the objection to this document is on the basis that it reveals the negotiations between De Simone and Bank West for existing or potential financing of the project. However, the document does not refer to financing of the project although it does refer to contributions by the current partners into the partnership capital.
I do not consider this document relates directly to the subject matter of the stay.
The next document in relation to which objection is taken is 794. This document is dated 26 March 2007. It is headed "CVs for Key Players". It is an email from Alan Griffiths to De Simone setting out Mr Griffith's CV and is in response to an email from De Simone setting out De Simone's CV. I am unable to see anything in this document which refers to the matters which are the subject of the stay application.
Document 1206 headed Seachange v Bevnol is an email from De Simone to Daryl Clark at Bank West dated 23 May 2007 in which De Simone refers to contact made to Mr Clark from a Mark Patrick of the Victoria Police. The email clearly discusses the prospect of police charges against De Simone and the prospect of the bank being served with a search warrant. However, this email does not traverse the issues raised in the police investigation or the issues raised in those parts of the counterclaim which are subject to the stay application.
The next document identified as relevant to the stay application is document number 15. This document is dated 2 February 2006 and is an email from De Simone to a Leon Marriott of Bank West. It is a business outline and rundown of the loan facility being sought by Seachange from the bank. It was created several months before the letter was sent. I do not consider it to be directly related to the matters the subject of the stay application.
The next document, which is at page 17, is also said to be relevant to the stay application. It is a series of emails between De Simone and Miranda Ball regarding the payment for some display flags apparently connected with advertising the project during the course of which De Simone makes some comments on his financial position.
Although this email may possibly shed light on Mr Brereton's financial status as at 8 February 2006, it does not appear directly relevant to the matters alleged in the counterclaim. It relates to events which took place several months beforehand.
The next set of documents said to be the subject of the stay are documents 212 through to 255. These are emails between De Simone and Bank West. between 21 April 2006 and 1 May 2006. Some of the emails contain draft documents. They relate to proposed transactions between De Simone and Bank West in the months prior to the production of the letter by De Simone.. In my view they relate to the matters alleged in the parts of the counterclaim which are the subject of the stay application.
Document 271 is an email from De Simone to Wes Dreir of the National Australia Bank reporting on the corporate structure of Seachange Management Pty Ltd and clearly relating to a loan application to that bank. It is dated 23 June 2006, a month before the letter was produced.
I presume that De Simone would say that the contents of this document are relevant to the allegations in the counterclaim in that they may be used to show that De Simone was seeking alternative finance from the National Australia Bank as late as a month before the meeting of 24 July 2006 at which it is alleged that he represented he had finance available from Bank West.
I agree that this document is potentially relevant to the subject matter of the stay application.
The documents following, being from page 273 to 284 are emails and documents between De Simone and the National Australia bank and other parties. They appear to relate at least in part to a loan application to the National Australia Bank and rearrangement of partnership interests.
It is not clear to me whether this loan is said to be referred to in the letter, or whether these financial arrangements have any bearing on those parts of the counterclaim which are the subject of the stay application.
Document 285-287 is an email and letter headed "The computer supply store and McLeod. The email is dated 28 June 2006 but the letter which it appears to enclose is dated 10 December 2008. Neither of these documents appear to be in any way connected with the stay application.
Document 290-291 headed Lindfield settlement details - update and Lindfield settled may relate to the settlement which is also referred to in documents 273-284. It is not at all clear to me that this is so, but on this assumption these documents potentially may relate to the stay.
Document 303 Headed Seachange Village valuation is in fact an email from De Simone to various persons describing various matters to do with the development. There is nothing in this document which appears connected to the matters the subject of the stay application.
Document 329, headed Various Seachange partnership agreements, is in fact an email from De Simone to various persons seeking partnership and sale agreements. There is nothing in that email which I can see which is related to the matters the subject of the stay.
Document 331, headed NAB Funding conditions -FYI .is an email from the National Australia Bank to De Simone setting out the banks funding conditions. Given that it is dated 6 July 2006, it does have potential relevance to the subject matter of the stay.
Documents 344-345 and documents 348-349 are both emails from De Simone to the national Australia bank. The dates are very close to the dates on which the letter was produced. The emails relate to matters which seem to me potentially closely connected with the subject matter of the stay.
Documents 446 to 451 consist of an email from De Simone concerning the development generally, together with a document entitled Seachange Village Project costing cash flow. Although the email was sent shortly after the production of the letter, it does not mention the finances for the project directly. There is nothing in these documents to link them with the subject matter of the stay application.
They range in dates from 5 July 2006 to 14 August 2006 and include a series of documents such as a loan agreement at page 358, a fixed and floating charge at 361, a deed between ZMB Australia Pty Ltd and Galambos Pty Ltd, a Galambos partnership deed, an interesting developments partnership deed, a Seachange Village Partnership deed and a costing cash flow which accompanies an email from De Simone to various persons at the National Australia Bank, containing a great deal of detail as to the project.
The documents may be said to be relevant to the issues in the stay application insofar as they show negotiations or arrangements being entered into with another bank. However, their principal relevance appears to me to be in relation to the structure of the various Seachange entities and the viability of the development project. I find them not sufficiently connected to the matters the subject of the stay application to justify refusal to release them at this stage.
The next group of documents in relation to which the stay is said to be relevant are those at pages 534 to 559. These documents are dated between 20 February 2007 and 26 February 2007. They consist of emails from De Simone to various Bank West representatives and Colliers representatives in relation to a valuation of Seachange Village, presumably in support of an application for finance.
Several of the emails provide information as to the proposed structure of the agreement for financial accommodation from Bank West and the structure of Seachange Management Pty Ltd and the various entities connected with that entity.
They show the state of the financial arrangements in February of 2007, four months before the events referred to in the counterclaim. There is no sufficient relevance suggested between these emails and the subject matter of the stay application.
Document 634 which is dated 1 March 2007 is an email from De Simone to various officials at Bank West describing the present state of the works and the state of the proceedings at VCAT. There appears to me to be minimal connection between the subject matter of this email and the matters the subject of the stay.
This is followed by an email from De Simone to Bank West officials dated 6 March 2007 which is number 655 up to 724 describing the works which have been conducted up until that date, putting a financial proposal to the bank and supporting that proposal with various documents and in particular a valuation which appears to have been prepared under an instruction from the Bank of West Australia Ltd, dated 15 December 2006.
It does not appear to me that there is any material in these documents which is principally concerned with the matters which are the subject of the stay.
The next group of documents are those from pages 744 to 787 which span the period of time from 14 March 2007 to the 21 March 2007. The documents consist of emails from De Simone apparently to persons interested in the various Seachange entities, commenting on the financial issues relating to the project, and various documents
None of these emails or documents refers to the circumstances of production of the letter . Some of the documents detail the financial position of Seachange and associated entities. However, all of the documents appear to have been generated in March of 2007, some eight months after the letter was produced.
I determine that these documents do not relate to the subject matter of the stay.
Document 817-829 is an email from De Simone to various persons representing Seachange interests referring to minutes of partnership meetings and transfers of partnership entitlements. It attaches two deeds. The email is dated 28 March 2007, again eight months after the production of the letter. It does not refer to the production of the letter or any circumstances surrounding it. In my view there is nothing in this document relating to the circumstances of the stay.
Document 839 headed Seachange Village- answers to Bank West Credit qs is an email from De Simone to various persons It attaches various deeds of agreement. It describes the partnership structure of Seachange and its financial arrangements up to October of 2005. It does not appear to directly mention the events set out in the sections of the counterclaim which are subject to the stay application.
In my view the connection between these documents and the subject matter of the stay is not established.
Document 913 is an email from De Simone to Brereton, and an earlier email from De Simone to various parties regarding the furnishing of the display suite. I can discern no connection at all between this email and the subject matter of the stay application.
The last two documents which are said to relate to the stay application are documents 1046-7 and 1063-1080.
Document 1046-7 is am email exchange between De Simone and a bank west official regarding newspaper articles relating to an ASIC prosecution of Brereton. I can see nothing at all in this exchange which relates to the subject matter of the stay.
Documents 1063-1080, headed Seachange-urgent is a series of emails between De Simone and Bank West on 23 and 24 April 2007.Included in the documents are an offer letter and facility terms from the bank. The documents identify funding issues as at April 2007. In my view however they do not directly relate to the events the subject of the stay. They concern future funding, not past funding
In regard to the stay application, the orders I propose to make are -

[148]

I am aware that a Court or Tribunal plays a significant role in monitoring the production of documents pursuant to a summons to witness and that production to the parties of documents entrusted to the Tribunal in response to a subpoena, even if that subpoena is judged to have been validly issued, is in no way automatic.
It is clear that this Tribunal has the power to regulate its procedures so as to prevent interlocutory procedures such as discovery and the issue of subpoenas being used for inappropriate ends.
National Employers Mutual General Association Limited v Waind and Hill [1978] 1 NSW LR 372 is a significant judgment dealing with the circumstances in which a summons to witness should be set aside as a n abuse of process.
This was a case in which legal professional privilege was claimed by a worker in respect of a workers compensation insurance file. The file had been subpoenaed by the workers employer, who had been sued by the worker for negligence arising out of the accident in relation to which he had also obtained workers compensation.
The primary issue in that case was whether a subpoena could be used to compel production of documents so that they could be inspected by a party to ascertain their helpfulness or otherwise to that party's case. It was suggested by the worker that to do so would be a misuse of the power to subpoena, which exists only to require a document to be produced in order to be tendered in evidence.
The submission went so far as to say that the person using the subpoena should not have a chance to inspect it at all before tendering it into evidence. It was said that the procedure adopted by the defendant was a "fishing" exercise designed to ascertain if some useful material could be found to support the employers defence.
It was in that context that the trial judge analysed the obligations of a court in dealing with materials sought to be produced by way of subpoena by reference to three discrete stages of determination.
It is fair to say that the approach of the trial judge in Waind does not reflect what has become the usual practice in Courts in this State and in this Tribunal of parties being allowed a fair degree of latitude in the issuing of subpoenas to third parties to locate and inspect documents which may be thought to be useful at trial.
This practice has been encouraged by provisions such as order 42 rule 10 of the Supreme Court rules, which provide a mechanism for early return of subpoena and inspection of documents produced under subpoena before trial.
However, it must be remembered that the obligation still remains with the Court or Tribunal to supervise this process to ensure that it is being employed in the interests of justice and with due regard to the privacy and convenience of parties whose records are subpoenaed in this way, or who are required to devote time and resources to complying with such subpoenas.
The first stage analysed in Waind is the determination of any objections made by the person to whom the summons is addressed on the ground that the summons has been improperly issued.
The issues for determination at this first stage are analysed from the assumption that it is the person to whom the summons is directed who makes the objection.
It is also clear from the discussion that the mischief identified by the Court in its reasons in such a case is that the person to whom the summons is directed is obliged to make a judgment as to what may or may not be relevant to the issues in dispute between the parties, and that this, coupled with the prospect that many documents may be involved, would impose an intolerable burden on a stranger to the litigation.
The Court also refers to the prospect that the issue of a subpoena may be an abuse of process for other reasons, and describes those as including -

[152]

The Court then analyses the nature of the power exercised by a judge in deciding upon appropriate orders in relation to those documents. It notes the power to be quite different to that exercised in relation to discovery, in particular because the power to compel production of documents on subpoena affects the rights of strangers to litigation, not just rights as between parties.
The Court decided that the power was to be exercised in order to "take all steps necessary for the proper trial of the issues before him" following a course which "fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court."
The third stage is a ruling by the judge at the trial on questions between the parties as to the relevance of documents and their admissibility according to the rules of evidence. This is not the issue before me.
Seachange and De Simone ask me to apply the principles set out in Waind and the other authorities to which I will refer in the following way.
Firstly an attack is made on the form of the summons. It is said that the description of the documents is too wide and contains a request for some documents which are beyond the scope of this proceeding.
Secondly it was said that the process of discovery is incomplete and that summonses to produce documents should not take the place of the Tribunals discovery processes.
As an aspect of this argument, it is said that the request for these documents should have been directed to Seachange and De Simone, who are the rightful owners of the documents, and who would have been able to take lawful objections to producing them.
It was also said that all of the documents in the summonses either had already been disclosed to Bevnol, in this or in other proceedings, or were identified in De Simone's affidavit of documents, sworn in this proceeding. And so the issue of the summonses was unnecessary.
Thirdly, De Simone and Seachange asserted that the documents were confidential and, for that reason, should not be disclosed.
I will examine each of these grounds separately and then examine the broader claim that the combination of these factors points to the conclusion that the summonses have been issued as an abuse of process.

[153]

Firstly, it is said the scope of the summons to Brereton was excessive, requiring production of documents beyond the issues and that some of the documents produced in response to the summons were outside the dates specified on the summons. In the spreadsheet which he has prepared, De Simone identifies many documents produced by Brereton which he says are in this category. He says the issue of the summons in this way is oppressive.
Although it would have been clearly open to those persons to whom the summons was directed to apply to this Tribunal for the summonses to be set aside on the grounds that they were oppressive or irrelevant to the issues in dispute, it does not seem to me that either Seachange or De Simone is able to maintain an argument in relation to the perceived oppressiveness of the summons in circumstances where the documents have in fact already been produced to the Tribunal.
Seachange argues that insofar as the documents relate to dates or matters outside the scope of the summons, the Tribunal has no jurisdiction to deal with those documents.
However, I take the view that I do have power to deal with any such documents. Sufficient power is contained in s 80 of the VCAT Act which gives the Tribunal the power to do whatever is necessary to facilitate the fair hearing of proceedings before it. Further, s 97 imposes an obligation on the Tribunal to act fairly, and s 98(3) of the Act gives the Tribunal the power to regulate its own procedure.
In Fried, the applicant was successful in submitting that a summons should be set aside where it was in effect a "wide-ranging trawl for documents which might, theoretically be capable of producing something of forensic value," but which, "absent some proper foundation for their being sought, constituted an abuse of process."
However, as I have said, the question before me is not whether or not the documents should be produced to the Tribunal. They have already been produced to the Tribunal. If there has been substantial work involved in identifying the documents, that work has already been done.
The question before me is whether the documents which have been produced should now be made available for inspection by Bevnol. In making a decision on this matter it does not appear to me that I should be swayed by questions of whether or not there are more documents being produced to the Tribunal than those identified in the summons itself, or whether a large number of documents have been produced.

[156]

Nevertheless, I do not consider that there is a firm rule that summonses to produce documents must never be issued prior to the completion of discovery. The interlocutory processes of any court or tribunal must be used to maximise cooperation between the parties and to ensure that all available information is exchanged between the parties before the case comes to trial.
Earlier authorities on the principles to be applied to interlocutory applications may need to be revised to take into account the contemporary emphasis of the courts on full and frank exchange of material, breaking down the previous emphasis on the adversarial nature of the proceedings and a past tendency of parties and lawyers for those parties to use interlocutory processes to frustrate, rather than to assist in the production of relevant material before trial.
The Domestic Building List of this Tribunal places great emphasis on cooperation between parties, on full disclosure of documents and legal submissions before trial and on the efficient and timely disposal of proceedings. In my view, in the particular circumstances of this case, it is not unreasonable for the summonses to have been issued to enable early identification of available documents, and this is so even if the discovery processes had not been completed.
Seachange also relies on Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) FCA 212 as authority for the proposition that a subpoena should be set aside as oppressive if it was in effect a means of obtaining further discovery, for which alternate provision was available under the rules, and if it required the recipient to make fine judgments regarding the relevance of documents, or failed to describe the documents sought with sufficient particularity.
However, in that case the recipient protested that compliance with the subpoena would entail a great deal of work to ascertain its true ambit, and that appropriate rules were in place to achieve that result through discovery.
It was important in that case that the proceeding was subject to judicial case management, though a managed timetable, the recipient had already provided two affidavits of documents, and that other than for the issues raised in the subpoena, was otherwise ready for trial.
The judge noted that the primary consideration in deciding such an application was -

[179]

Bevnol does not deny that it made a complaint to the police. However it says that the summonses were issued to obtain information relevant to this proceeding and not for an ulterior purpose.
Bevnol says that it is self evident that it can have had no other purpose than the issue of these proceedings, as it has not issued any other proceedings. It says that issues raised by De Simone regarding the Victoria Police investigation are not relevant to this application. It denies the allegation that the summonses were issued for any improper purpose.
Bevnol says that De Simone's stance is merely tactical. It says that the argument that witnesses may be able to "fashion their evidence" or not be taken by surprise is not a recognised basis to uphold an objection to the release of otherwise relevant documents.
Bevnol refers me to a decision of this Tribunal, Roberts v Victoria Police (2003) VCAT 2028, and says that it stands for the proposition that if subpoenaed material is on its face potentially relevant or useful,, there can be no basis for finding that there was an ulterior motive in issuing the subpoena.
My reading of the decision is that it stands for the simple proposition that it is necessary to closely examine all of the circumstances relating to the issue of the summons and the potential relevance of the evidence sought to be subpoenaed in determining whether to allow the summons to be issued or the subpoenaed material to be used.
These allegations of abuse of process are very serious. There is, however, nothing in the material filed on behalf of Seachange or De Simone which sets out how it is that any of the documents which are subject to either of the two subpoenas might actually prejudice him in relation to the criminal investigation or cause prejudice if revealed by way of response to a subpoena as opposed to being revealed in the normal discovery processes.
The documents held by Chrapot can be generally described as documents relating to the building works, at the time of the breakdown in the relationship between Bevnol and Seachange and thereafter, there are also documents which refer to arrangements for insurance of the works, the dismissal of Bevnol, the engagement of plumbers and payments for various creditors, production of specifications and various plan reviews and documents in relation to inspection of the property and engagement of Dudley & Co. as builders.
The documents held by Brereton can be described as matters generally concerning the financial structure of Seachange and associated entities, financial and marketing documents relating to the entire development, and documents relating to Seachange relationship to its creditors and financiers generally.
As I understand it, the police investigation is relevant only to those paragraphs of the Counterclaim which are stayed by operation of the order of his Honour Judge Ross. Those issues are therefore issues relating to the alleged production of a letter of 27 July 2006 by De Simone relating to finance of the development and the circumstances in which it came to be produced, and the allegation that Seachange had obtained finance by early December 2006 and had advised Bevnol of this.
I have perused all of the material provided in response to each summons and am unable to see how production of this material would in fact prejudice De Simone's defence to these charges.
Victoria Police has already exercised powers of inspection by issuing a search warrant on 6 May 2009. Pursuant to this search warrant the informant in the police proceedings has searched and obtained the documents which are the subject of this hearing.
Further, it appears to me that any such detriment to the conduct of the defence in the criminal proceedings can be avoided if I were to make orders allowing the solicitors for Bevnol and its counsel to inspect the documents in the first instance. If any documents need to be shown to clients for instructions, a further application can be made in respect of the particular documents and I will be given concrete reasons as to why this is required, or why this should not be allowed.
However, the larger question is whether I should conclude from the material filed that it is more likely than not that the summonses have been issued for an improper purpose, and exercise the discretion which I have to determine whether the documents should be inspected, in such a way as will show the Tribunals disapproval of the manipulation of the subpoena process.
De Simone suggests that the wording on the police warrant directed at VCAT for inspection of the documents is identical with the wording of the summonses issued by Bevnol. He says this is evidence of a close and unsavoury connection between Bevnol and the police.
I understand his argument to be that it is not so much a question as to whether I can make orders which could avoid the unlawful use of this material. It is a question of whether I should, once I determine that the facts relied on by De Simone are established, give emphasis to the Tribunals disapproval of the improper purpose motivating the issue of the summonses by refusing to let the documents produced be inspected or used at trial.
Most of the cases I have considered in which abuse of process has been argued are cases where the person issuing the summons has been characterised as attempting to obtain an unfair tactical advantage in the trial. Each case appears to revolve around its own facts. Often the Court has put great store on the stage of the proceeding reached, the fact that other options are available in a judge managed environment, and other like considerations.
In Hamilton v Oades (1988-89)85 ALR 1 Deane and Gaudron JJ said this;-

[194]

I have considered whether I should allow De Simone to seek to prove the allegations of abuse of process by calling evidence and cross-examining deponents of affidavits.
I firstly consider this application as it relates to Brendan Archer, solicitor for Bevnol. My first impression was that the matters deposed to by Archer are predominantly in the nature of legal submissions. There is little in his affidavits which goes to the proof of the allegations which De Simone makes.
However, there are some significant areas of fact alleged in his affidavit which I would need to consider if I were to make factual findings on the abuse of process claim. Archer deposes as to the reasons why he did not press on with inspection of discovered documents. He deposes as to the appropriateness of his contacts with Chrapot and Brereton in relation to the issue and service of the summonses. He deposes as to a conversation he has had with Chrapot.
De Simone has also sought leave to subpoena witnesses to give evidence as to the abuse of process claim. He has identified the police informant, and two directors of Bevnol, and Chrapot and Brereton. He says through their evidence he will be able to show that there was in effect a conspiracy between the directors and the police and the recipients of the subpoenas to issue these subpoenas.
In deciding whether or not to allow further evidence to be called, I need to balance the need to allow all relevant evidence to be led against the delay which such a course would involve.
On the one hand, the course proposed by De Simone would allow the opportunity to fully ventilate the issues raised by him.
However, such a course would prolong the time before a final decision is made as to these documents. I have found that almost all of the documents are relevant and very few are actually or potentially covered by privilege or other wise unavailable for release.
The application to summons witnesses has been made well after the timetable that I set for the filing of affidavits and submissions. There has been no satisfactory reason provided as to why this application has been made at such a late stage.
The introduction of new evidence by Seachange and De Simone would require me to consider any such application by Bevnol. It would require further consideration of legal submissions once all this evidence was heard.
I also consider it unlikely in the extreme that any of the proposed witnesses would agree to give evidence as to the matters proposed, or that the evidence they would give would assist me in finding the relevant facts.
I am not making a decision on the trial of this action. Even if cross-examination were allowed, it is likely that any finding as to facts I may make would be tentative at this stage. A full analysis of the relationships between the parties, the credibility of witnesses, and the state of the documentary evidence will have to await the trial.
It seems to me that the examination of any witnesses, including Mr Archer, cannot be sensibly held at present. It is not feasible that the informant in the criminal trial, Detective Patrick, could presently give any evidence regarding his investigation. The criminal proceedings are in their infancy. The committal and trial have not taken place.
So it seems to me presently impossible for this Tribunal to hear from persons who may be witnesses in the criminal trial in respect of matters which will be live issues in that criminal trial.
Further, the matters of which De Simone complains are events which occurred in the past. I am not asked to consider whether a summons should be issued. The summonses have already been issued and responded to. The question for me is what orders should be made in respect of these documents, which I have inspected and found otherwise relevant to this case, and which are now in the custody of this Tribunal.
The question of the relationship between Bevnol and the police, the appropriateness of the issue of the search warrant, and the effect of the criminal proceedings on De Simone's capacity to defend these proceedings, are all matters which will be squarely raised in the committal and criminal trial, and the eventual stay application.
It is my view not in the interests of justice that they be ventilated in this application as well. No finding that I might make will impact on the criminal trial. If I were to attempt to make findings of fact on the abuse of process claim, this would open up the question of whether further and inconsistent findings might be made at later hearings, or indeed at trial, when all of the evidence had been presented and all documents analysed in detail.
Finally, any disadvantage in the conduct of the criminal trial can be addressed by the orders which I propose to make releasing the documents to Bevnol's legal advisers, rather than to the clients.
For all of the above reasons I have decided to refuse the application to call further evidence or to cross-examine Archer.
I am troubled by the fact that Archer's affidavit is relied on by Bevnol and that this course means there will not be any opportunity for De Simone to test the accuracy of that affidavit by cross-examination.
However, as I have earlier pointed out, much of the content of the two affidavits he has filed are in the nature of submissions.
Where I have relied on his affidavits to establish facts, those facts have not been contradicted by affidavit evidence from De Simone or Seachange. De Simone wishes to cross-examine Archer on matters not referred to in his affidavits, not to test the accuracy of those matters I have relied on in coming to a decision. The cross-examination is likely to be wide-ranging and to attempt to explore issues which are the subject of the criminal trial, in which Archer may be a witness.
Thus from all of the above, I conclude that given the circumstances I have described, the interests of justice do not require Archer to be called for cross-examination or witnesses to be called on the abuse of process claim.

Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors

At a glance

Court

Decision date

Before

Source

Judgment (202 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269 (18 March 2010)