Samios Plumbing Pty Ltd v John R Keith (NSW) Pty Ltd [2020] NSWSC 1128

Samios Plumbing Pty Ltd v John R Keith (NSW) Pty Ltd [2020] NSWSC 1128

The Report was not privileged because the evidence did not establish that it was commissioned and prepared for the dominant purpose of Forza obtaining professional legal services relating to a proceeding or anticipated proceeding. It was prepared to ascertain the factual position about the pipes so that litigation would be avoided. Even if privilege had existed, Forza voluntarily disclosed the Report to Lendlease, a potential adversary whose interests were adverse rather than common. The Report was also not prepared in connection with an attempt to negotiate settlement of a dispute, because there was not yet a dispute and the parties were cooperating to avoid one.

Jurisdiction
Australia
Judgment Date
25 August 2020
Procedural Posture
Equity Technology and Construction List; Procedural Ruling Concerning Disclosure and Privilege Over a Document / Second Cross Defendant's Notice of Motion Dated 20 March 2020
Outcome
Second Cross-Defendant's notice of motion of 20 March 2020 is dismissed with costs.
Legal Topics
['legal Professional Privilege' 'common Interest Privilege' 'settlement Negotiation Privilege' 'disclosure of Documents' 'dominant Purpose Test']
['evidence' 'civil Procedure' 'privilege' 'technology and Construction'] ['legal Professional Privilege' 'common Interest Privilege' 'settlement Negotiation Privilege' 'disclosure of Documents' 'dominant Purpose Test']

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Procedural Posture

Equity Technology and Construction List; Procedural Ruling Concerning Disclosure and Privilege Over a Document / Second Cross Defendant's Notice of Motion Dated 20 March 2020

Legal Issues

  1. 1 ['Whether Test Report No. 126752/17 dated 20 July 2017 was protected by legal professional privilege under Evidence Act 1995 (NSW) s 119.' 'Whether any privilege was maintained because disclosure to Lendlease was disclosure to a person with a common interest under Evidence Act 1995 (NSW) s 122(5)(c).' 'Whether the Report was protected by settlement negotiation privilege under Evidence Act 1995 (NSW) s 131(1)(b).']

Ratio Decidendi

The Report was not privileged because the evidence did not establish that it was commissioned and prepared for the dominant purpose of Forza obtaining professional legal services relating to a proceeding or anticipated proceeding. It was prepared to ascertain the factual position about the pipes so that litigation would be avoided. Even if privilege had existed, Forza voluntarily disclosed the Report to Lendlease, a potential adversary whose interests were adverse rather than common. The Report was also not prepared in connection with an attempt to negotiate settlement of a dispute, because there was not yet a dispute and the parties were cooperating to avoid one.

Court Disposition

Second Cross-Defendant's notice of motion of 20 March 2020 is dismissed with costs.

Orders

  • ["Forza's notice of motion of 20 March 2020 is dismissed with costs." 'Keith is entitled to access to the Report.']