Welker v Rinehart (No 11) [2012] NSWSC 1341

Welker v Rinehart (No 11) [2012] NSWSC 1341

Leave to file the mediation motion was refused because the matter was set down and prepared for hearing, nothing suggested mediation at that stage had high prospects, and postponing the hearing for mediation triggered by events the previous day would be an inappropriate use of the court's time and approach to case management. The notice to produce was set aside because, although privilege had been waived in respect of the publicly deployed senior counsel advice, the advice was not relevant to the applications for leave to amend or summary dismissal and could not inform the court's discretion.

Jurisdiction
Australia
Judgment Date
12 September 2012
Procedural Posture
Interlocutory Applications / Application for Leave to File Notice of Motion Claiming an Order for Mediation; Notice to Produce
Outcome
Leave to file notice of motion claiming an order for mediation refused; notice to produce set aside.
Legal Topics
['compulsory Mediation' 'case Management' 'notice to Produce' 'legal Professional Privilege' 'waiver of Privilege' 'relevance' 'leave to Amend' 'summary Dismissal']
['practice and Procedure' 'equity'] ['compulsory Mediation' 'case Management' 'notice to Produce' 'legal Professional Privilege' 'waiver of Privilege' 'relevance' 'leave to Amend' 'summary Dismissal']

Case Brief

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Procedural Posture

Interlocutory Applications / Application for Leave to File Notice of Motion Claiming an Order for Mediation; Notice to Produce

Legal Issues

  1. 1 ['Whether the second defendant should be granted leave to file a notice of motion returnable instanter seeking an order referring the proceedings to compulsory mediation.' "Whether privilege had been waived over senior counsel's advice where the plaintiffs deployed a summary of the effect of that advice in public." 'Whether the document sought by the notice to produce was relevant to the interlocutory applications before the court.']

Ratio Decidendi

Leave to file the mediation motion was refused because the matter was set down and prepared for hearing, nothing suggested mediation at that stage had high prospects, and postponing the hearing for mediation triggered by events the previous day would be an inappropriate use of the court's time and approach to case management. The notice to produce was set aside because, although privilege had been waived in respect of the publicly deployed senior counsel advice, the advice was not relevant to the applications for leave to amend or summary dismissal and could not inform the court's discretion.

Court Disposition

Leave to file notice of motion claiming an order for mediation refused; notice to produce set aside.

Orders

  • ['Leave to file the motion is refused.' 'The notice to produce is set aside.']