KC & Ors v Shiley Inc & Anor [1997] FCA 617

KC & Ors v Shiley Inc & Anor [1997] FCA 617

Privilege over the subpoenaed documents has not been impliedly waived by the applicants' pleadings or evidence; references to state of mind, emotional state, or lack of expertise do not reach the threshold for waiver, nor is there knowing or voluntary disclosure of legal advice. Only documents relevant to liability for costs, claimed as damages and not held by the Legal Aid Commission, fall outside privilege.

Jurisdiction
Australia
Judgment Date
11 July 1997
Procedural Posture
Interlocutory Application / Application for Access to Subpoenaed Documents / Privilege Hearing
Outcome
Notice of Motion dismissed in relation to Legal Aid Commission documents; access granted only to documents (not held by Legal Aid) relevant to liability for costs; respondents to pay applicants' costs of the Notice of Motion.
Legal Topics
['legal Professional Privilege' 'implied Waiver' 'client Legal Privilege' 'subpoenas' 'costs']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'implied Waiver' 'client Legal Privilege' 'subpoenas' 'costs']

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Procedural Posture

Interlocutory Application / Application for Access to Subpoenaed Documents / Privilege Hearing

Legal Issues

  1. 1 ['Whether legal professional privilege over documents has been impliedly waived' 'Whether legal advice and communications are disclosable in light of fairness or consent' 'Application of Evidence Act 1995 (Cth) and Legal Aid Commission Act 1979 (NSW) to privilege and waiver' 'Whether documents relevant to liability for costs fall outside privilege']

Ratio Decidendi

Privilege over the subpoenaed documents has not been impliedly waived by the applicants' pleadings or evidence; references to state of mind, emotional state, or lack of expertise do not reach the threshold for waiver, nor is there knowing or voluntary disclosure of legal advice. Only documents relevant to liability for costs, claimed as damages and not held by the Legal Aid Commission, fall outside privilege.

Court Disposition

Notice of Motion dismissed in relation to Legal Aid Commission documents; access granted only to documents (not held by Legal Aid) relevant to liability for costs; respondents to pay applicants' costs of the Notice of Motion.

Orders

  • ['The Notice of Motion is dismissed in relation to documents held by the Legal Aid Commission of New South Wales.' 'In relation to other documents sought in subpoenas, access is only provided to documents relevant to liability for costs claimed as damages by applicants.' "The respondent is to pay the applicants'...