Fay v Moramba Services Pty Ltd (No 2) [2008] NSWSC 571

Fay v Moramba Services Pty Ltd (No 2) [2008] NSWSC 571

The 9 January 2006 letter was a knowing and voluntary forensic disclosure of the substance of Mr Grieve QC's advice, so privilege in that advice was waived under s 122(2). However, it could not yet be said that the other documents sought, such as instructions, briefing documents, draft advices and working papers, were related communications reasonably necessary to understand the advice under s 126. The notice would therefore not be set aside, but access would be limited to the advice and discussion notes identified in paragraphs 6 and 7, with access to paragraphs 1 to 5 refused until further order.

Jurisdiction
Australia
Judgment Date
21 May 2008
Procedural Posture
Procedural and Other Ruling / Plaintiffs' Application to Set Aside a Notice to Produce
Outcome
Application to set aside notice to produce refused; access granted to advice; access refused to associated documents until further order.
Legal Topics
['notice to Produce' 'client Legal Privilege' 'waiver of Privilege' 'access to Produced Documents']
['civil Procedure' 'evidence'] ['notice to Produce' 'client Legal Privilege' 'waiver of Privilege' 'access to Produced Documents']

Case Brief

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Procedural Posture

Procedural and Other Ruling / Plaintiffs' Application to Set Aside a Notice to Produce

Legal Issues

  1. 1 ['Whether the notice to produce should be set aside because it required production of material subject to client legal privilege.' "Whether the letter dated 9 January 2006 knowingly and voluntarily disclosed the substance of Mr Grieve QC's advice so as to waive privilege under s 122(2)." 'Whether documents related to the advice were related communications reasonably necessary to enable a proper understanding of the advice under s 126.' 'Whether production should be required but access refused to documents over which privilege might remain.']

Ratio Decidendi

The 9 January 2006 letter was a knowing and voluntary forensic disclosure of the substance of Mr Grieve QC's advice, so privilege in that advice was waived under s 122(2). However, it could not yet be said that the other documents sought, such as instructions, briefing documents, draft advices and working papers, were related communications reasonably necessary to understand the advice under s 126. The notice would therefore not be set aside, but access would be limited to the advice and discussion notes identified in paragraphs 6 and 7, with access to paragraphs 1 to 5 refused until further order.

Court Disposition

Application to set aside notice to produce refused; access granted to advice; access refused to associated documents until further order.

Orders

  • ['The notice to produce is not set aside.' 'Access is granted to the documents produced under paragraphs 6 and 7 of the notice.' 'Access is refused to the documents produced under paragraphs 1 to 5 of the notice until further order.']