Hastie Group Ltd (In liq) v Moore & ors [2016] NSWSC 1315

Hastie Group Ltd (In liq) v Moore & ors [2016] NSWSC 1315

The plaintiffs had not established privilege over the bulk of documents concerning preliminary steps to obtain litigation funding because those documents were directed to creating or leading to a funding relationship rather than to the provision of professional legal services. In any event, by using Mr Crosbie's affidavits on ex parte r 1.12 applications to show that they had used reasonable diligence and expedition in seeking funding, while knowing those matters could be scrutinised on r 12.11 applications, the plaintiffs acted inconsistently with maintaining privilege over the underlying material. Any privilege in those funding documents was therefore waived, subject to redaction of...

Jurisdiction
Australia
Judgment Date
14 September 2016
Procedural Posture
Interlocutory Application for Production of Documents Called for by Notices to Produce / Procedural Ruling on Defendants' Applications for Production Before Hearing of Applications Under UCPR R 12.11 to Set Aside Orders Extending Time for Service
Outcome
Defendants' applications for production substantially granted; plaintiffs ordered to produce documents in respect of which privilege had been waived, with limited redactions, and to pay the defendants' costs of the applications for access.
Legal Topics
['notices to Produce' 'client Legal Privilege' 'litigation Funding Documents' 'waiver of Privilege' 'ex Parte Extension of Time for Service' 'costs of Interlocutory Applications']
['practice and Procedure' 'evidence' 'civil Procedure'] ['notices to Produce' 'client Legal Privilege' 'litigation Funding Documents' 'waiver of Privilege' 'ex Parte Extension of Time for Service' 'costs of Interlocutory Applications']

Case Brief

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Procedural Posture

Interlocutory Application for Production of Documents Called for by Notices to Produce / Procedural Ruling on Defendants' Applications for Production Before Hearing of Applications Under UCPR R 12.11 to Set Aside Orders Extending Time for Service

Legal Issues

  1. 1 ['Whether documents relating to searches for litigation funding were privileged under s 119 of the Evidence Act 1995 (NSW).' 'Whether any client legal privilege in those documents had been waived under s 122 of the Evidence Act 1995 (NSW).' 'Whether incidental parts of documents revealing legal advice or views about prospects, strategy or tactics could be redacted.' 'Whether particular documents, including a retainer letter, legal advice and a costs estimate, remained privileged.' 'Whether the defendants should receive costs of the applications for access.']

Ratio Decidendi

The plaintiffs had not established privilege over the bulk of documents concerning preliminary steps to obtain litigation funding because those documents were directed to creating or leading to a funding relationship rather than to the provision of professional legal services. In any event, by using Mr Crosbie's affidavits on ex parte r 1.12 applications to show that they had used reasonable diligence and expedition in seeking funding, while knowing those matters could be scrutinised on r 12.11 applications, the plaintiffs acted inconsistently with maintaining privilege over the underlying material. Any privilege in those funding documents was therefore waived, subject to redaction of...

Court Disposition

Defendants' applications for production substantially granted; plaintiffs ordered to produce documents in respect of which privilege had been waived, with limited redactions, and to pay the defendants' costs of the applications for access.

Orders

  • ['Direct the plaintiffs to produce to the defendants, within a time to be agreed between them, the documents in respect of which any privilege existing has been waived.' 'Note that the plaintiffs may redact incidental parts of those documents in the manner described.' "Order the plaintiffs to pay the defendants'...