Kelly v Thorn; Monteleone v Thorn (No 5) [2020] NSWSC 1937

Kelly v Thorn; Monteleone v Thorn (No 5) [2020] NSWSC 1937

The photographs and videos taken by Ms Bond during the conference with counsel and the first defendant and during the view on 23 February 2018 were separate documents prepared for the purposes of the litigation and remained privileged. The presence of other persons during the view did not prevent privilege attaching. The defendants' reliance on some photographs or video did not waive privilege over all other separate photographs and videos, and the plaintiff did not establish that access to the remaining material was reasonably necessary under s 126 to properly understand the photographs and video in evidence.

Jurisdiction
Australia
Judgment Date
20 November 2020
Procedural Posture
Procedural Ruling Concerning Subpoena Production and Client Legal Privilege / Day 4 of the Hearing; Plaintiff's Application for Access to Photographs and Videos Produced to the Court by the Defendants
Outcome
The plaintiff's application for access to the photographs and videos in possession of the defendants is rejected.
Legal Topics
['client Legal Privilege' 'litigation Privilege' 'waiver of Privilege' 'subpoena Production' 'related Communications and Documents' 'photographs and Videos as Documents']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'litigation Privilege' 'waiver of Privilege' 'subpoena Production' 'related Communications and Documents' 'photographs and Videos as Documents']

Case Brief

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Procedural Posture

Procedural Ruling Concerning Subpoena Production and Client Legal Privilege / Day 4 of the Hearing; Plaintiff's Application for Access to Photographs and Videos Produced to the Court by the Defendants

Legal Issues

  1. 1 ["Whether photographs and videos in the defendants' possession were privileged under s 119 of the Evidence Act 1995 (NSW)." "Whether any privilege had been waived under s 122 of the Evidence Act 1995 (NSW) by the defendants' reliance on some photographs and one video." 'Whether access to other photographs and videos was required under s 126 of the Evidence Act 1995 (NSW) to enable a proper understanding of the photographs and video relied on by the defendants.']

Ratio Decidendi

The photographs and videos taken by Ms Bond during the conference with counsel and the first defendant and during the view on 23 February 2018 were separate documents prepared for the purposes of the litigation and remained privileged. The presence of other persons during the view did not prevent privilege attaching. The defendants' reliance on some photographs or video did not waive privilege over all other separate photographs and videos, and the plaintiff did not establish that access to the remaining material was reasonably necessary under s 126 to properly understand the photographs and video in evidence.

Court Disposition

The plaintiff's application for access to the photographs and videos in possession of the defendants is rejected.

Orders

  • ["The plaintiff's application for access to the photographs and videos in possession of the defendants is rejected."]