In the matter of Austral Bronze Pty Limited;; In the matter of John Darlington Pty Limited;; In the matter of John Darlington Pty Limited [2020] NSWSC 1491

In the matter of Austral Bronze Pty Limited;; In the matter of John Darlington Pty Limited;; In the matter of John Darlington Pty Limited [2020] NSWSC 1491

The affidavit evidence concerning Mr Fletcher and Ms Comerford disclosed only that instructions sufficient to file a claim against Austral Bronze were received and why the proceedings were urgently commenced while the company was deregistered; that did not waive privilege over broader instructions or the unredacted portions of the 20 December 2019 file notes or initial instruction sheet, because there was no relevant inconsistency or unfairness. By contrast, for the 17 July 2019 handwritten file note concerning Mrs Viksne, privilege could not be maintained over the remaining redacted portions because the disclosed portions of the same note, considered with the waiver already made, created...

Jurisdiction
Australia
Judgment Date
26 October 2020
Procedural Posture
Equity Corporations List Proceedings Concerning Reinstatement of Deregistered Companies and Ancillary Relief; Client Legal Privilege Dispute / Determination of Claims for Privilege Over Documents Produced in Response to a Notice to Produce
Outcome
Claim for privilege upheld in typed file notes and initial instruction sheet; privilege waived in handwritten file note.
Legal Topics
['client Legal Privilege' 'waiver of Privilege' 'notice to Produce' 'deregistered Companies' 'reinstatement Under S 601 AH of the Corporations Act 2001 (cth)' 'dust Diseases Tribunal Proceedings']
['evidence' 'civil Procedure' 'corporations' 'equity' 'dust Diseases Litigation'] ['client Legal Privilege' 'waiver of Privilege' 'notice to Produce' 'deregistered Companies' 'reinstatement Under S 601 AH of the Corporations Act 2001 (cth)' 'dust Diseases Tribunal Proceedings']

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Procedural Posture

Equity Corporations List Proceedings Concerning Reinstatement of Deregistered Companies and Ancillary Relief; Client Legal Privilege Dispute / Determination of Claims for Privilege Over Documents Produced in Response to a Notice to Produce

Legal Issues

  1. 1 ["Whether the plaintiffs waived client legal privilege over typed file notes and an initial instruction sheet concerning communications with Barry Fletcher and Kathleen Comerford by relying on Ms Wade's affidavit." "Whether the plaintiffs waived client legal privilege over the remainder of a handwritten file note of Ms Wade's telephone conversation with Beverley Viksne by disclosing portions of that note and relying on Ms Wade's affidavit." 'Whether maintaining privilege over undisclosed portions of the documents would be inconsistent with disclosed material or create unfairness.']

Ratio Decidendi

The affidavit evidence concerning Mr Fletcher and Ms Comerford disclosed only that instructions sufficient to file a claim against Austral Bronze were received and why the proceedings were urgently commenced while the company was deregistered; that did not waive privilege over broader instructions or the unredacted portions of the 20 December 2019 file notes or initial instruction sheet, because there was no relevant inconsistency or unfairness. By contrast, for the 17 July 2019 handwritten file note concerning Mrs Viksne, privilege could not be maintained over the remaining redacted portions because the disclosed portions of the same note, considered with the waiver already made, created...

Court Disposition

Claim for privilege upheld in typed file notes and initial instruction sheet; privilege waived in handwritten file note.

Orders

  • ['No person be given access to the following documents in MFI-3: the unredacted portions of the file notes made on 20 December 2019, or the initial instruction sheet containing confidential communications with Barry Fletcher, Kathleen Comerford and Slater & Gordon Lawyers (Sydney), other than Kathleen Comerford and...