Idoport Pty. Ltd. & Anor. v. National Australia Bank Ltd. & Ors. [2001] NSWSC 196

Idoport Pty. Ltd. & Anor. v. National Australia Bank Ltd. & Ors. [2001] NSWSC 196

Because Mr Hetherington swore that Mr Machonachie had informed him of specified matters, and because he could not say that he did not rely on the earlier e-mails containing drafts and comments, the substance of a limited class of client-solicitor communications had been voluntarily disclosed in the affidavit. Privilege in the six earlier documents was therefore lost under s.122(2), and s.126 also applied because the documents were reasonably necessary to enable a proper understanding of what the communication in truth was.

Jurisdiction
Australia
Judgment Date
21 March 2001
Procedural Posture
Evidence; Legal Professional Privilege / Interlocutory Ruling on Privilege Claimed in Response to a Notice to Produce During Cross Examination on the Voir Dire
Outcome
Privilege was held to have been lost over the six earlier e-mails produced in answer to the Notice to Produce.
Legal Topics
['legal Professional Privilege' 'client Legal Privilege' 'loss or Waiver of Privilege' 'notice to Produce' 'affidavit Evidence on Information and Belief' 'evidence Act S.122(2)' 'evidence Act S.126']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'client Legal Privilege' 'loss or Waiver of Privilege' 'notice to Produce' 'affidavit Evidence on Information and Belief' 'evidence Act S.122(2)' 'evidence Act S.126']

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Procedural Posture

Evidence; Legal Professional Privilege / Interlocutory Ruling on Privilege Claimed in Response to a Notice to Produce During Cross Examination on the Voir Dire

Legal Issues

  1. 1 ["Whether privilege was lost over earlier e-mails between junior counsel and Mr Machonachie containing drafts of an affidavit and Mr Machonachie's comments on those drafts." "Whether the plaintiffs' voluntary disclosure in Mr Hetherington's affidavit of information said to have been provided by Mr Machonachie engaged s.122(2) of the Evidence Act." 'Whether s.126 of the Evidence Act removed privilege from related communications or documents reasonably necessary to enable a proper understanding of the communication referred to in the affidavit.']

Ratio Decidendi

Because Mr Hetherington swore that Mr Machonachie had informed him of specified matters, and because he could not say that he did not rely on the earlier e-mails containing drafts and comments, the substance of a limited class of client-solicitor communications had been voluntarily disclosed in the affidavit. Privilege in the six earlier documents was therefore lost under s.122(2), and s.126 also applied because the documents were reasonably necessary to enable a proper understanding of what the communication in truth was.

Court Disposition

Privilege was held to have been lost over the six earlier e-mails produced in answer to the Notice to Produce.

Orders

  • ['Privilege has been lost in respect of the documents for which privilege was claimed.']