In the matter of Idoport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58

In the matter of Idoport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58

Privilege is not waived as the plaintiffs neither put their state of mind nor the contents of legal advice in issue; the allegations made do not amount to an implied or issue waiver. The manner in which the plaintiffs have conducted their case and the relief sought do not give rise to any inconsistency with maintenance of privilege. The application for production and inspection is therefore dismissed.

Parties
First Plaintiff: National Australia Bank Limited; Second Plaintiff: National Markets Group Limited; Third Plaintiff: Australian Market Automated Quotation (AUSMAQ) System Limited; First Defendant: John Sheahan; Second Defendant: Ian Russell Lock; Third Defendant: Fulham Partners LLC; Fourth Defendant: Portsmouth Partners LLC; Fifth Defendant: Idoport Pty Limited (in liquidation) (receivers appointed)
Jurisdiction
Australia
Judgment Date
10 February 2012
Procedural Posture
Interlocutory Application / Pre Trial, Application for Production and Inspection of Documents Over Which Privilege Claimed
Outcome
Application dismissed
Legal Topics
Legal Professional Privilege, Issue Waiver, Declaratory Relief, Reasonableness of Refusal of Consent, Inspection of Privileged Documents
Evidence Corporations Civil Procedure Legal Professional Privilege Issue Waiver Declaratory Relief Reasonableness of Refusal of Consent Inspection of Privileged Documents

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Parties

National Australia Bank Limited

First Plaintiff

National Markets Group Limited

Second Plaintiff

Australian Market Automated Quotation (AUSMAQ) System Limited

Third Plaintiff

John Sheahan

First Defendant

Ian Russell Lock

Second Defendant

Fulham Partners LLC

Third Defendant

Portsmouth Partners LLC

Fourth Defendant

Idoport Pty Limited (in liquidation) (receivers appointed)

Fifth Defendant

Procedural Posture

Interlocutory Application / Pre Trial, Application for Production and Inspection of Documents Over Which Privilege Claimed

Legal Issues

  1. 1 Whether the plaintiffs have waived legal professional privilege by putting in issue their state of mind or reasons for withholding consent
  2. 2 Whether the conduct of the plaintiffs in seeking declaratory relief puts their state of mind or contents of legal advice in issue and therefore waives privilege
  3. 3 Whether claim for declaratory relief requires plaintiffs to disprove reasonableness of refusal of consent

Ratio Decidendi

Privilege is not waived as the plaintiffs neither put their state of mind nor the contents of legal advice in issue; the allegations made do not amount to an implied or issue waiver. The manner in which the plaintiffs have conducted their case and the relief sought do not give rise to any inconsistency with maintenance of privilege. The application for production and inspection is therefore dismissed.

Court Disposition

Application dismissed

Orders

  • Application for production to and inspection by the third and fourth defendants of the privileged documents the subject of the Notice of Motion filed on 14 October 2011 dismissed