G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 16) [2024] NSWSC 955

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 16) [2024] NSWSC 955

The cross-defendants failed to establish that the draft supplementary statement was created for the dominant purpose of obtaining legal advice or for use in the litigation, as the evidence showed two equally important purposes (the witness’s own wish to supplement his statement for truthfulness and to communicate this to the applicant’s solicitors for consideration). However, those parts of the draft statement that disclose or record confidential communications between the witness and the applicant’s former and current legal advisers for the purpose of proofing or legal advice in connection with the proceedings are protected by legal professional privilege and may be redacted before...

Jurisdiction
Australia
Judgment Date
05 August 2024
Procedural Posture
Interlocutory Application in Existing Proceedings / Ruling on Claim of Legal Professional Privilege Pre Trial
Outcome
Declaration made that legal professional privilege attaches to specified parts of the draft witness statement; plaintiffs/cross-defendants to redact those parts before inspection; remainder of privilege claim dismissed; directions to be made for costs.
Legal Topics
['legal Professional Privilege' 'litigation Privilege' 'draft Witness Statements' 'confidential Communications' 'dominant Purpose Test' 'redaction of Privileged Materials']
['civil Procedure' 'evidence' 'equity' 'technology and Construction'] ['legal Professional Privilege' 'litigation Privilege' 'draft Witness Statements' 'confidential Communications' 'dominant Purpose Test' 'redaction of Privileged Materials']

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Procedural Posture

Interlocutory Application in Existing Proceedings / Ruling on Claim of Legal Professional Privilege Pre Trial

Legal Issues

  1. 1 ['Whether legal professional privilege attaches to the whole or parts of a draft supplementary witness statement produced under subpoena by a non-party witness; Whether the document was created for the dominant purpose of obtaining legal advice or use in litigation; Whether confidentiality attaches to the draft statement in the relevant circumstances; Whether privileged material should be redacted before inspection by the opposing party.']

Ratio Decidendi

The cross-defendants failed to establish that the draft supplementary statement was created for the dominant purpose of obtaining legal advice or for use in the litigation, as the evidence showed two equally important purposes (the witness’s own wish to supplement his statement for truthfulness and to communicate this to the applicant’s solicitors for consideration). However, those parts of the draft statement that disclose or record confidential communications between the witness and the applicant’s former and current legal advisers for the purpose of proofing or legal advice in connection with the proceedings are protected by legal professional privilege and may be redacted before...

Court Disposition

Declaration made that legal professional privilege attaches to specified parts of the draft witness statement; plaintiffs/cross-defendants to redact those parts before inspection; remainder of privilege claim dismissed; directions to be made for costs.

Orders

  • ['Declare that legal professional privilege attaches to specified paragraphs of the draft supplementary statement of Andrew Naude produced in answer to subpoena.' 'Order that plaintiffs/cross-defendants inspect, copy, redact privileged parts, and serve redacted statement on defendants/cross-claimants within 3 days.'...