Twigg v Pitcher Partners Holdings Pty Ltd (No 2) [2022] NSWSC 1714

Twigg v Pitcher Partners Holdings Pty Ltd (No 2) [2022] NSWSC 1714

After inspecting the remaining disputed documents and considering the supplementary affidavit, the Court was satisfied that the privilege claim was properly made. The email disclosure to the plaintiffs was inadvertent and did not waive privilege. Disclosure to Pitcher Partners occurred pursuant to court orders establishing an access regime for subpoenaed documents and was disclosure under compulsion of law, not a knowing and voluntary disclosure inconsistent with maintaining privilege. The fourth and fifth defendants were therefore entitled to maintain privilege over all documents remaining in dispute.

Jurisdiction
Australia
Judgment Date
13 December 2022
Procedural Posture
Equity Commercial List Procedural Ruling Concerning Access to Subpoenaed Documents and Legal Professional Privilege / Application for Access to Subpoena Packets S 4, S 5 and S 6 in Proceedings Where a Permanent Stay Motion Was Part Heard
Outcome
The plaintiffs were refused access to subpoena packets S-4, S-5 and S-6 without the consent of the fourth and fifth defendants, and were ordered to pay the fourth and fifth defendants' costs of the application for access.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'subpoenaed Documents' 'access to Subpoena Packets' 'inadvertent Disclosure' 'disclosure Under Compulsion of Law']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'waiver of Privilege' 'subpoenaed Documents' 'access to Subpoena Packets' 'inadvertent Disclosure' 'disclosure Under Compulsion of Law']

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Procedural Posture

Equity Commercial List Procedural Ruling Concerning Access to Subpoenaed Documents and Legal Professional Privilege / Application for Access to Subpoena Packets S 4, S 5 and S 6 in Proceedings Where a Permanent Stay Motion Was Part Heard

Legal Issues

  1. 1 ['Whether the fourth and fifth defendants had adequately established legal professional privilege over the disputed subpoenaed documents.' 'Whether privilege was waived by permitting Pitcher Partners to inspect the documents under court orders for access to subpoenaed documents.' 'Whether privilege was waived by inadvertently copying the plaintiffs into an email attaching the documents.' 'Whether the plaintiffs should be given access to subpoena packets S-4, S-5 and S-6 without the consent of the fourth and fifth defendants.']

Ratio Decidendi

After inspecting the remaining disputed documents and considering the supplementary affidavit, the Court was satisfied that the privilege claim was properly made. The email disclosure to the plaintiffs was inadvertent and did not waive privilege. Disclosure to Pitcher Partners occurred pursuant to court orders establishing an access regime for subpoenaed documents and was disclosure under compulsion of law, not a knowing and voluntary disclosure inconsistent with maintaining privilege. The fourth and fifth defendants were therefore entitled to maintain privilege over all documents remaining in dispute.

Court Disposition

The plaintiffs were refused access to subpoena packets S-4, S-5 and S-6 without the consent of the fourth and fifth defendants, and were ordered to pay the fourth and fifth defendants' costs of the application for access.

Orders

  • ['The plaintiffs not be given access subpoena packets S-4, S-5 and S-6 produced in answer to three subpoenas addressed to Miranda Bordignon – SBA Law without the consent of the fourth and fifth defendants;' "The plaintiffs pay the fourth and fifth defendants' costs of the application for access."]