Nicolaou v Truman Facilities Pty Limited [2014] NSWSC 1459

Nicolaou v Truman Facilities Pty Limited [2014] NSWSC 1459

The plaintiffs did not impliedly waive client legal privilege over Diamond Conway's communications concerning the Loucas proceedings. Those communications related to later tasks in a later dispute, arising three years after the 2007 retainer, and could not inform the scope of the original retainer or how the plaintiffs would have acted if properly advised at that time. Although the material might be relevant to causation, relevance alone was insufficient to establish inconsistency with maintaining confidentiality. The claim for legal costs did not waive privilege because the costs were pleaded as damages, not as a contractual reimbursement claim, and it was not in issue that the costs...

Jurisdiction
Australia
Judgment Date
24 October 2014
Procedural Posture
Interlocutory Application Concerning Discovery and Client Legal Privilege / Motion by the First Defendant Under UCPR R 21.5 Seeking Production of Documents Over Which the Plaintiffs Claimed Client Legal Privilege
Outcome
Motion dismissed
Legal Topics
['discovery' 'client Legal Privilege' 'implied Waiver of Privilege' 'legal Advice Privilege' 'litigation Privilege' 'professional Negligence Against Accountant and Solicitors']
['civil Procedure' 'evidence' 'professional Negligence'] ['discovery' 'client Legal Privilege' 'implied Waiver of Privilege' 'legal Advice Privilege' 'litigation Privilege' 'professional Negligence Against Accountant and Solicitors']

Case Brief

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Procedural Posture

Interlocutory Application Concerning Discovery and Client Legal Privilege / Motion by the First Defendant Under UCPR R 21.5 Seeking Production of Documents Over Which the Plaintiffs Claimed Client Legal Privilege

Legal Issues

  1. 1 ["Whether the plaintiffs, by bringing professional negligence proceedings against their accountant and former solicitors, impliedly waived client legal privilege over documents relating to Diamond Conway's advice and legal services in the litigation with Loucas." 'Whether the relevance of the privileged communications to causation was sufficient to establish waiver under s 122(2) of the Evidence Act 1995.' "Whether the plaintiffs' claim for legal costs incurred in the Loucas proceedings waived privilege over documents relating to those costs."]

Ratio Decidendi

The plaintiffs did not impliedly waive client legal privilege over Diamond Conway's communications concerning the Loucas proceedings. Those communications related to later tasks in a later dispute, arising three years after the 2007 retainer, and could not inform the scope of the original retainer or how the plaintiffs would have acted if properly advised at that time. Although the material might be relevant to causation, relevance alone was insufficient to establish inconsistency with maintaining confidentiality. The claim for legal costs did not waive privilege because the costs were pleaded as damages, not as a contractual reimbursement claim, and it was not in issue that the costs...

Court Disposition

Motion dismissed

Orders

  • ["The first defendant's motion is dismissed."]