Bin Li v Changshun Wang & Jianrong Su [2023] NSWSC 848

Bin Li v Changshun Wang & Jianrong Su [2023] NSWSC 848

The plaintiff, through her solicitor's letter and affidavit passage, squarely put in issue the instructions she gave Lexsons about joining Zisu Wang and, by referring to miscommunications and her asserted ignorance of why joinder did not occur, also put in issue what Lexsons did with those instructions and why. That conduct was inconsistent with maintaining privilege over communications between the plaintiff and Lexsons concerning whether Zisu Wang should be added as a defendant. The waiver extended to communications from Lexsons to the plaintiff on that topic, but access was confined to the specified items and to contents concerning that subject. Section 131 did not protect item 49.

Jurisdiction
Australia
Judgment Date
19 July 2023
Procedural Posture
Notice of Motion in Common Law Proceedings Concerning Access to Subpoenaed Documents and Legal Professional Privilege / Interlocutory Procedural Ruling Before Hearing of the Plaintiff's Amendment Motion
Outcome
The second defendant's motion for access and inspection was granted subject to confined inspection and redaction.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'issue Waiver' 'subpoenaed Documents' 'client Legal Privilege' 'evidence Act 1995 (nsw) Ss 122, 131 and 131 A']
['civil Procedure' 'evidence'] ['legal Professional Privilege' 'waiver of Privilege' 'issue Waiver' 'subpoenaed Documents' 'client Legal Privilege' 'evidence Act 1995 (nsw) Ss 122, 131 and 131 A']

Case Brief

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Procedural Posture

Notice of Motion in Common Law Proceedings Concerning Access to Subpoenaed Documents and Legal Professional Privilege / Interlocutory Procedural Ruling Before Hearing of the Plaintiff's Amendment Motion

Legal Issues

  1. 1 ["Whether documents in Packet S-6, otherwise attracting legal professional privilege, could be accessed because of an implied waiver of privilege by the plaintiff's solicitor." 'Whether the plaintiff waived privilege by putting in issue instructions given to former solicitors about joining Zisu Wang as a defendant.' "Whether any waiver extended to communications and advice from the plaintiff's former solicitors about what was done with those instructions and why Zisu Wang was not joined." 'Whether the common law or the Evidence Act 1995 (NSW), including ss 122, 131 and 131A, applied to the waiver question.' 'Whether without prejudice privilege or s 131 of the Evidence Act 1995 (NSW) applied to item 49.']

Ratio Decidendi

The plaintiff, through her solicitor's letter and affidavit passage, squarely put in issue the instructions she gave Lexsons about joining Zisu Wang and, by referring to miscommunications and her asserted ignorance of why joinder did not occur, also put in issue what Lexsons did with those instructions and why. That conduct was inconsistent with maintaining privilege over communications between the plaintiff and Lexsons concerning whether Zisu Wang should be added as a defendant. The waiver extended to communications from Lexsons to the plaintiff on that topic, but access was confined to the specified items and to contents concerning that subject. Section 131 did not protect item 49.

Court Disposition

The second defendant's motion for access and inspection was granted subject to confined inspection and redaction.

Orders

  • ['The orders sought in the first prayer for relief in the Motion were granted, subject to inspection and access by the second defendant being confined to items 49, 93, 112, 113, 122, 132, 141-144, 183 and 184 and to the contents of those documents which concern communications between the plaintiff and Lexsons as to...