Ryder v Frohlich [2005] NSWSC 1342

Ryder v Frohlich [2005] NSWSC 1342

The incomplete draft reports prepared by KPMG and provided to the plaintiffs or their solicitors were not privileged because, of their nature and in the circumstances described, they were documents generated by the expert rather than confidential communications. The defendants had not established at that stage that privilege over all other KPMG documents had been waived, but the plaintiffs bore the onus of establishing privilege and had not yet discharged it; they were therefore given a final opportunity to provide proper particulars, with access to be granted automatically for documents not properly claimed as privileged.

Jurisdiction
Australia
Judgment Date
21 December 2005
Procedural Posture
Notice of Motion Concerning Access to Documents Produced Under Notice to Produce or Subpoena and Claims of Legal Professional Privilege / Interlocutory Application After Liability Had Been Determined and Before Valuation Matters Were to Be Determined by an Associate Judge
Outcome
Defendants' notice of motion substantially allowed; access ordered to KPMG draft report documents and further affidavit particulars ordered for remaining documents, with costs awarded to the defendants.
Legal Topics
['legal Professional Privilege' 'client Legal Privilege' 'expert Reports' 'subpoenas' 'notices to Produce' 'waiver of Privilege' 'costs']
['civil Procedure' 'evidence' 'equity'] ['legal Professional Privilege' 'client Legal Privilege' 'expert Reports' 'subpoenas' 'notices to Produce' 'waiver of Privilege' 'costs']

Case Brief

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Procedural Posture

Notice of Motion Concerning Access to Documents Produced Under Notice to Produce or Subpoena and Claims of Legal Professional Privilege / Interlocutory Application After Liability Had Been Determined and Before Valuation Matters Were to Be Determined by an Associate Judge

Legal Issues

  1. 1 ["Whether drafts of an expert's report prepared by KPMG were protected by legal professional privilege." 'Whether privilege had been waived in respect of documents produced by KPMG because Deloittes were later instructed and had access to valuation documents.' 'What particulars the plaintiffs were required to provide to establish claims for legal professional privilege over documents produced to the court.']

Ratio Decidendi

The incomplete draft reports prepared by KPMG and provided to the plaintiffs or their solicitors were not privileged because, of their nature and in the circumstances described, they were documents generated by the expert rather than confidential communications. The defendants had not established at that stage that privilege over all other KPMG documents had been waived, but the plaintiffs bore the onus of establishing privilege and had not yet discharged it; they were therefore given a final opportunity to provide proper particulars, with access to be granted automatically for documents not properly claimed as privileged.

Court Disposition

Defendants' notice of motion substantially allowed; access ordered to KPMG draft report documents and further affidavit particulars ordered for remaining documents, with costs awarded to the defendants.

Orders

  • ["The plaintiffs were given leave to access documents produced to the court under notice to produce or subpoena by KPMG, Lachlan Wolfers and Nicholas John Ryder and held in packets numbered 4, 7, 8, 10 and 11 marked privileged for the purpose of identifying the documents referred to in paragraph 4(g) of Grahame...