Wyadra Pty Ltd & Ors v Mailler & Ors (No 2) [2005] NSWSC 88

Wyadra Pty Ltd & Ors v Mailler & Ors (No 2) [2005] NSWSC 88

Even assuming the more stringent formulation of implied waiver applied, the first and second defendants' conduct in prosecuting a cross claim based on their formation and continued maintenance of an expectation induced by the plaintiffs was inconsistent with maintaining confidentiality over legal advice received during that period. Legal advice was likely to have played a part in the formation and maintenance of the expectation. The waiver therefore applied to relevant communications with the former solicitors and also to communications involving the accountants through whom the advice was given.

Jurisdiction
Australia
Judgment Date
21 February 2005
Procedural Posture
Civil Proceedings Concerning Subpoenas and Client Legal Privilege / During Trial, After the Close of the Plaintiffs' Case, the Plaintiffs Called on Subpoenas Addressed to the Former Solicitors for the First and Second Defendants and Their Accountants
Outcome
Resistance to production of privileged documents on subpoena overruled.
Legal Topics
['client Legal Privilege' 'legal Professional Privilege' 'implied Waiver' 'subpoena Production' 'consent to Adducing Privileged Evidence']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'legal Professional Privilege' 'implied Waiver' 'subpoena Production' 'consent to Adducing Privileged Evidence']

Case Brief

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Procedural Posture

Civil Proceedings Concerning Subpoenas and Client Legal Privilege / During Trial, After the Close of the Plaintiffs' Case, the Plaintiffs Called on Subpoenas Addressed to the Former Solicitors for the First and Second Defendants and Their Accountants

Legal Issues

  1. 1 ["Whether the first and second defendants' objection to production under subpoenas on the basis of client legal privilege should be upheld" 'Whether consent under Evidence Act 1995, s 122(1) includes the common law concept of implied waiver of privilege' "Whether the first and second defendants' cross claim based on formation and continued reliance on an expectation was inconsistent with maintaining confidentiality over legal advice" 'Whether any waiver extended to communications between the accountants, the solicitors and the first and second defendants']

Ratio Decidendi

Even assuming the more stringent formulation of implied waiver applied, the first and second defendants' conduct in prosecuting a cross claim based on their formation and continued maintenance of an expectation induced by the plaintiffs was inconsistent with maintaining confidentiality over legal advice received during that period. Legal advice was likely to have played a part in the formation and maintenance of the expectation. The waiver therefore applied to relevant communications with the former solicitors and also to communications involving the accountants through whom the advice was given.

Court Disposition

Resistance to production of privileged documents on subpoena overruled.

Orders

  • ['The documents of the former solicitors identified in annexure "A" to the affidavit of Jonathan Peter McTigue sworn on 17 February 2005 to which the plaintiffs seek access must be produced.' 'The accountants must produce those of the documents identified in annexure "C" to the affidavit of Jonathan Peter McTigue...