In the matter of Metal Storm Limited (in liquidation) (receivers and managers appointed) [2019] NSWSC 1667

In the matter of Metal Storm Limited (in liquidation) (receivers and managers appointed) [2019] NSWSC 1667

ASOF did not discharge the onus of establishing litigation privilege because the evidence did not show that the dominant purpose of the communications was ASOF being provided with professional legal services relating to the proceedings. On inspection, the dominant purpose was to inform Mr Young of ASOF's position about his retainer, its terms, continuing effect, parties' obligations, contractual consequences of his conduct, and ASOF's instructions to its solicitors, after ASOF had decided not to use his services further in the proceedings.

Jurisdiction
Australia
Judgment Date
29 November 2019
Procedural Posture
Procedural Ruling in Equity Corporations List Concerning a Claim for Litigation Privilege / During Final Hearing, on Challenge to Privilege Claim Over Communications Between Asof's Solicitor and an Expert Witness
Outcome
Privilege not established; ASOF's claim for litigation privilege was not made out.
Legal Topics
['litigation Privilege' 'confidential Communications Between Solicitor and Expert Witness' 'dominant Purpose Test' 'professional Legal Services' 'notice to Produce']
['evidence' 'civil Procedure' 'corporations'] ['litigation Privilege' 'confidential Communications Between Solicitor and Expert Witness' 'dominant Purpose Test' 'professional Legal Services' 'notice to Produce']

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Procedural Posture

Procedural Ruling in Equity Corporations List Concerning a Claim for Litigation Privilege / During Final Hearing, on Challenge to Privilege Claim Over Communications Between Asof's Solicitor and an Expert Witness

Legal Issues

  1. 1 ['Whether ASOF established litigation privilege under s 119 of the Evidence Act 1995 (NSW) over three communications between its solicitor and an expert witness whom it no longer proposed to call.' 'Whether the dominant purpose of the communications was ASOF being provided with professional legal services relating to the proceedings.']

Ratio Decidendi

ASOF did not discharge the onus of establishing litigation privilege because the evidence did not show that the dominant purpose of the communications was ASOF being provided with professional legal services relating to the proceedings. On inspection, the dominant purpose was to inform Mr Young of ASOF's position about his retainer, its terms, continuing effect, parties' obligations, contractual consequences of his conduct, and ASOF's instructions to its solicitors, after ASOF had decided not to use his services further in the proceedings.

Court Disposition

Privilege not established; ASOF's claim for litigation privilege was not made out.

Orders

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