Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited (No 2) [2018] NSWSC 875

Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited (No 2) [2018] NSWSC 875

AET and IOOF had not acted inconsistently with maintaining client legal privilege in the Allens advice documents. The allegation of duty and vulnerability made relevant the opportunity to obtain advice, not the contents of the advice. The allegation of reliance on Willis was not inconsistent with maintaining privilege over advice from Allens, because AET could have relied on both Willis and Allens and the contents of the advice were not critical to reliance. As to the board minutes, the Court was not satisfied that Mr Grant was present when the substance of Allens' advice was disclosed, accepting evidence of the usual practice not to disclose legal advice in the presence of guests....

Jurisdiction
Australia
Judgment Date
14 June 2018
Procedural Posture
Procedural and Other Rulings; Notice of Motion for Production of Documents Over Which Client Legal Privilege Was Claimed / Notice of Motion Filed on 29 May 2018 Heard on 8 June 2018
Outcome
The notice of motion filed on 29 May 2018 was dismissed with costs.
Legal Topics
['client Legal Privilege' 'implied Waiver' 'loss of Privilege Under S 122(2) of the Evidence Act 1995 (nsw)' 'inconsistency With Maintenance of Confidentiality' 'production of Discovered Documents' 'insurance Broker Negligence' 'representative Proceedings']
['evidence' 'civil Procedure' 'professional Negligence' 'insurance'] ['client Legal Privilege' 'implied Waiver' 'loss of Privilege Under S 122(2) of the Evidence Act 1995 (nsw)' 'inconsistency With Maintenance of Confidentiality' 'production of Discovered Documents' 'insurance Broker Negligence' 'representative Proceedings']

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Procedural Posture

Procedural and Other Rulings; Notice of Motion for Production of Documents Over Which Client Legal Privilege Was Claimed / Notice of Motion Filed on 29 May 2018 Heard on 8 June 2018

Legal Issues

  1. 1 ["Whether AET and IOOF lost client legal privilege in documents relating to Allens' advice by acting inconsistently with maintaining privilege under s 122(2) of the Evidence Act 1995 (NSW)." 'Whether a pleading that AET relied on Willis, and allegations concerning duty of care, vulnerability and breach, were inconsistent with maintaining privilege over legal advice obtained from Allens.' "Whether privilege in a paragraph of IOOF board minutes was lost because a Willis representative was present when Allens' advice was disclosed to the board." 'Whether a forensic advantage that might attach to disclosure of privileged advice is relevant to determining inconsistency.']

Ratio Decidendi

AET and IOOF had not acted inconsistently with maintaining client legal privilege in the Allens advice documents. The allegation of duty and vulnerability made relevant the opportunity to obtain advice, not the contents of the advice. The allegation of reliance on Willis was not inconsistent with maintaining privilege over advice from Allens, because AET could have relied on both Willis and Allens and the contents of the advice were not critical to reliance. As to the board minutes, the Court was not satisfied that Mr Grant was present when the substance of Allens' advice was disclosed, accepting evidence of the usual practice not to disclose legal advice in the presence of guests....

Court Disposition

The notice of motion filed on 29 May 2018 was dismissed with costs.

Orders

  • ['The notice of motion filed on 29 May 2018 be dismissed with costs.']