Yunghanns & Ors v Elfic Pty Ltd & Ors (No. 2)

(2000) 1 VR 92; [2000] VSC 113

Supreme Court of Victoria

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Interrogate

Catchwords

1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Joint privilege
5. › Whether privilege jointly held where same firm of solicitors retained by both parties but different partners acted for each
6. › Whether Chinese wall within firm defeats joint privilege
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Common interest privilege
5. › Joint venture relationship
6. › Whether fiduciary duties arising from joint venture preclude one venturer from claiming exclusive privilege against another
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Fraud or improper purpose exception
5. › Standard of proof required to displace privilege
6. › Whether prima facie case of improper purpose established
1. Equity
2. › Fiduciary duties
3. › Joint ventures
4. › Whether joint venture relationship gives rise to fiduciary duty
5. › Whether fiduciary duty prevents joint venturer from claiming privilege against co-venturer

Quick Take

Where parties to a joint venture retain the same firm of solicitors in relation to joint venture transactions, joint privilege attaches to communications between the firm and either party, even where different partners within the firm act for each party and a Chinese wall is in place. The fiduciary duty of utmost good faith inherent in a joint venture relationship precludes one venturer from claiming exclusive legal professional privilege against the other to gain an advantage. The fraud/improper purpose exception to privilege requires more than allegations — a prima facie case of improper purpose must be established.