Hastie Group Ltd (in liq) v Moore t/as Deloitte Touche Tohmatsu [2016] NSWSC 1355

Hastie Group Ltd (in liq) v Moore t/as Deloitte Touche Tohmatsu [2016] NSWSC 1355

Ms Pickthall's affidavit and the 16 September 2016 letter went beyond a mere assertion of privilege by identifying, in summary form, the subject matter of advice, strategy and tactics said to be revealed by the proposed redactions. In relation to the 16 documents referred to in that letter, this established a prima facie case that the redacted portions were subject to client legal privilege. Because privilege had been established on a prima facie basis, inspection by the Court would not impermissibly facilitate proof, but would scrutinise and test the claim. No sufficient basis was shown to infer that the Westworth Kemp report was privileged merely because a retainer letter to the expert...

Jurisdiction
Australia
Judgment Date
23 September 2016
Procedural Posture
Interlocutory Ruling in Professional Negligence Proceedings Concerning Notices to Produce and Claims of Client Legal Privilege / Defendants/applicants' Notice of Motion Filed 20 September 2016 Seeking Production of Documents Without Redaction After an Earlier Privilege Ruling
Outcome
The Court found a prima facie case of client legal privilege for the redactions to the 16 documents referred to in the 16 September 2016 letter, proposed to inspect those documents, indicated further evidence should be allowed for time sheet redactions, and held that the Westworth Kemp report should be produced.
Legal Topics
['notices to Produce' 'client Legal Privilege' 'redaction of Documents' 'inspection of Documents by the Court' 'litigation Funding Documents' 'expert Report Privilege' 'time Sheets']
['practice and Procedure' 'evidence' 'privilege' 'professional Negligence'] ['notices to Produce' 'client Legal Privilege' 'redaction of Documents' 'inspection of Documents by the Court' 'litigation Funding Documents' 'expert Report Privilege' 'time Sheets']

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Procedural Posture

Interlocutory Ruling in Professional Negligence Proceedings Concerning Notices to Produce and Claims of Client Legal Privilege / Defendants/applicants' Notice of Motion Filed 20 September 2016 Seeking Production of Documents Without Redaction After an Earlier Privilege Ruling

Legal Issues

  1. 1 ['Whether the Hastie Companies had established a basis for proposed redactions of documents previously ordered to be produced where redaction was permitted for legal advice or views in relation to prospects, strategy or tactics.' 'Whether the Court should inspect unredacted documents where a prima facie case of client legal privilege had been established.' 'Whether privilege was established for proposed redactions to time sheets maintained by the Hastie Companies and their solicitors.' 'Whether an undated and unsigned Westworth Kemp report was privileged because a retainer letter to the expert had been held privileged.']

Ratio Decidendi

Ms Pickthall's affidavit and the 16 September 2016 letter went beyond a mere assertion of privilege by identifying, in summary form, the subject matter of advice, strategy and tactics said to be revealed by the proposed redactions. In relation to the 16 documents referred to in that letter, this established a prima facie case that the redacted portions were subject to client legal privilege. Because privilege had been established on a prima facie basis, inspection by the Court would not impermissibly facilitate proof, but would scrutinise and test the claim. No sufficient basis was shown to infer that the Westworth Kemp report was privileged merely because a retainer letter to the expert...

Court Disposition

The Court found a prima facie case of client legal privilege for the redactions to the 16 documents referred to in the 16 September 2016 letter, proposed to inspect those documents, indicated further evidence should be allowed for time sheet redactions, and held that the Westworth Kemp report should be produced.

Orders

  • ["The Court will inspect the unredacted versions of the 16 documents referred to in Ms Pickthall's letter of 16 September 2016 and publish further reasons after inspection." 'The Hastie Companies are to have a further short time to adduce evidence as to the basis for any proposed redaction of time sheets.' 'The...