Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 4) [2011] VSC 269 - privilege and improperly obtained evidence

The matter of Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 4) [2011] VSC 269 (Hodgson v Amcor) was a ruling in the Supreme Court of Victoria by Vickery J on whether a letter of advice from a solicitor (Mr Dillman) to the plaintiff (Mr Hodgson) could be tendered in evidence. The ruling is chock full of useful discussions on issues relating to subpoenas, privilege and the use of improperly obtained evidence.

The defendants (Amcor) sought to use the letter of advice in cross examination and objection was made to that use by the plaintiff under s118 of the Evidence Act 2008 (Vic) (the Evidence Act) and s138 of the Evidence Act. Amcor said that it could use the letter by reason of the plaintiff acting inconsistently with the maintenance of a claim of privilege by the following conduct:

1. The letter of advice was received by two third parties.
2. The letter of advice was listed in a supplementary affidavit of documents and the plaintiff did not object to it being listed in that document.
3. The letter of advice was referred to in the opening address of Amcor's senior counsel and the plaintiff did not object to it being referred to.

On the basis of the above conduct, Amcor said that legal professional privilege was lost by operation of s122 of the Evidence Act. The Court disagreed. I have included a case summary and discussion below.