Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 975

Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 975

Although privilege had once attached to the McErlane statement in Drabsch's favour, it was lost because Drabsch's solicitor knowingly and voluntarily sent the executed statement to McErlane without comment and without imposing any restriction on its use. The communication was not made in the course of making a confidential communication, and the circumstances did not impose an express or implied obligation of confidentiality on McErlane. Section 122(5) did not preserve privilege because McErlane did not then have a common interest with Drabsch in actual or anticipated proceedings, and the underwriters did not share a common interest with Drabsch in any actual or anticipated proceeding.

Jurisdiction
Australia
Judgment Date
24 September 1999
Procedural Posture
Ruling on Question of Client Legal Privilege in Civil Proceedings / During Trial, on Objection to Use of Portions of the Mc Erlane Statement in Cross Examination
Outcome
Ruling that client legal privilege in the McErlane statement was lost.
Legal Topics
['client Legal Privilege' 'confidential Communications' 'confidential Documents' 'loss of Privilege' 'witness Statements']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'confidential Communications' 'confidential Documents' 'loss of Privilege' 'witness Statements']

Case Brief

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Procedural Posture

Ruling on Question of Client Legal Privilege in Civil Proceedings / During Trial, on Objection to Use of Portions of the Mc Erlane Statement in Cross Examination

Legal Issues

  1. 1 ["Whether client legal privilege attached to the McErlane statement in Drabsch's favour had been lost so as to permit SGI to use portions of it in cross-examination." 'Whether forwarding a copy of an executed witness statement to the witness without any imposed condition of confidentiality amounted to a knowing and voluntary disclosure not made in the course of a confidential communication under the Evidence Act 1995.' 'Whether the common interest exception in s 122(5) prevented loss of privilege.']

Ratio Decidendi

Although privilege had once attached to the McErlane statement in Drabsch's favour, it was lost because Drabsch's solicitor knowingly and voluntarily sent the executed statement to McErlane without comment and without imposing any restriction on its use. The communication was not made in the course of making a confidential communication, and the circumstances did not impose an express or implied obligation of confidentiality on McErlane. Section 122(5) did not preserve privilege because McErlane did not then have a common interest with Drabsch in actual or anticipated proceedings, and the underwriters did not share a common interest with Drabsch in any actual or anticipated proceeding.

Court Disposition

Ruling that client legal privilege in the McErlane statement was lost.

Orders

  • ['Privilege has ceased to attach to the McErlane statement.' 'Section 119 of the Evidence Act 1995 does not prohibit the McErlane statement being put into evidence.']