Vashisht Family Pty Ltd atf the Vashisht Family Trust v ADDS (NSW) Pty Ltd & Ors; ADDS (NSW) Pty Ltd & Ors v Vikas Vashisht & Anor [2021] NSWSC 1185

Vashisht Family Pty Ltd atf the Vashisht Family Trust v ADDS (NSW) Pty Ltd & Ors; ADDS (NSW) Pty Ltd & Ors v Vikas Vashisht & Anor [2021] NSWSC 1185

The 24 disputed emails are subject to litigation privilege at common law, as they were made for the purpose of existing or anticipated litigation between the plaintiffs and defendants and not for the joint retainer's purposes. The joint solicitor arrangement does not displace this litigation privilege, nor entitle the defendants to access the communications. Common law rather than the Evidence Act applies as the plaintiffs were not the party producing the documents under subpoena.

Jurisdiction
Australia
Judgment Date
17 September 2021
Procedural Posture
Equity Proceedings (procedural Motion) / Interlocutory Application Regarding Legal Professional Privilege (pre Trial)
Outcome
Privilege upheld; defendants refused access to disputed communications; costs awarded to plaintiffs
Legal Topics
['legal Professional Privilege' 'litigation Privilege' 'common Interest Privilege' 'access to Documents' 'joint Solicitors']
['evidence' 'civil Procedure' 'equity'] ['legal Professional Privilege' 'litigation Privilege' 'common Interest Privilege' 'access to Documents' 'joint Solicitors']

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Procedural Posture

Equity Proceedings (procedural Motion) / Interlocutory Application Regarding Legal Professional Privilege (pre Trial)

Legal Issues

  1. 1 ['Whether the questioned communications between the plaintiffs and the joint solicitor are subject to legal professional privilege and/or litigation privilege at common law; whether common law or the Evidence Act 1995 applies to the determination of privilege; whether privilege has been waived or lost due to the joint retainer; whether the defendants are entitled to access the disputed documents']

Ratio Decidendi

The 24 disputed emails are subject to litigation privilege at common law, as they were made for the purpose of existing or anticipated litigation between the plaintiffs and defendants and not for the joint retainer's purposes. The joint solicitor arrangement does not displace this litigation privilege, nor entitle the defendants to access the communications. Common law rather than the Evidence Act applies as the plaintiffs were not the party producing the documents under subpoena.

Court Disposition

Privilege upheld; defendants refused access to disputed communications; costs awarded to plaintiffs

Orders

  • ['Documents 1 to 24 in the plaintiffs Privilege Claims Schedule are not open to inspection by the defendants and shall be kept in the subpoena packet marked confidential, not to be opened except on order of a judge.' "Defendants to pay the plaintiffs' costs of the application."]