SYDNEY HARBOUR CASINO PTY LTD v WALTER VIGNOLI [1999] NSWCA 273

SYDNEY HARBOUR CASINO PTY LTD v WALTER VIGNOLI [1999] NSWCA 273

Leave to appeal was refused because Akins applied to the s126 issue and it was not appropriate to revisit Akins while the High Court appeal in Esso Australia was pending; the Wills memorandum would have attracted client legal privilege but for its discovery without a privilege claim; although Mason P disagreed with the trial judge's construction of paragraph 3 and considered production of the witness statements not reasonably necessary on that basis, the order was a discretionary interlocutory procedural decision and no appealable error warranting leave was shown.

Jurisdiction
Australia
Judgment Date
29 July 1999
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application From Interlocutory Orders in Common Law Division Concerning Interrogatories and Production of Documents
Outcome
Leave to appeal refused; Summons dismissed with costs.
Legal Topics
['discovery and Interrogatories' 'derivative Application of the Evidence Act 1995 to Pre Trial Procedures' 'section 126 Evidence Act 1995' 'waiver or Loss of Client Legal Privilege' 'appellate Restraint in Procedural Discretion']
['evidence' 'civil Procedure' 'client Legal Privilege'] ['discovery and Interrogatories' 'derivative Application of the Evidence Act 1995 to Pre Trial Procedures' 'section 126 Evidence Act 1995' 'waiver or Loss of Client Legal Privilege' 'appellate Restraint in Procedural Discretion']

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application From Interlocutory Orders in Common Law Division Concerning Interrogatories and Production of Documents

Legal Issues

  1. 1 ['Whether s126 of the Evidence Act 1995 applied to pre-trial discovery or interrogatories so as to require production of privileged witness statements referred to in a discovered memorandum.' 'Whether Akins v Abigroup Ltd (1998) 43 NSWLR 539 applied to s126 or should be reopened and overruled in light of Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511.' 'Whether the Wills memorandum would have attracted client legal privilege had it not been discovered without a claim of privilege.' 'Whether production of the Sifner and Richardson witness statements was reasonably necessary to enable a proper understanding of paragraph 3 of the Wills memorandum.' 'Whether leave to appeal should be granted from a discretionary interlocutory procedural order.']

Ratio Decidendi

Leave to appeal was refused because Akins applied to the s126 issue and it was not appropriate to revisit Akins while the High Court appeal in Esso Australia was pending; the Wills memorandum would have attracted client legal privilege but for its discovery without a privilege claim; although Mason P disagreed with the trial judge's construction of paragraph 3 and considered production of the witness statements not reasonably necessary on that basis, the order was a discretionary interlocutory procedural decision and no appealable error warranting leave was shown.

Court Disposition

Leave to appeal refused; Summons dismissed with costs.

Orders

  • ['Refuse leave to appeal.' 'Dismiss the Summons with costs.']