Moustapha v Nelson [2019] NSWSC 1573

Moustapha v Nelson [2019] NSWSC 1573

By referring to communications with experts and annexing some but not all communications in affidavits relied on to explain delay and obtain leave to rely on Mr Sims' expert report out of time, the plaintiffs put in issue matters relevant to delay, including the retainers, draft reports, disputes about costs or form, and whether a compliant report could be obtained. That conduct was inconsistent with maintaining legal professional privilege over the relevant communications. However, the subpoena was broader than the implied waiver and was limited, while the notice to produce was within the waiver and allowed in full.

Jurisdiction
Australia
Judgment Date
04 November 2019
Procedural Posture
Civil Procedure Application Concerning Subpoena and Notice to Produce / Interlocutory Notice of Motion Filed 16 October 2019 Seeking to Set Aside a Subpoena and Notice to Produce
Outcome
Notice of motion to set aside the subpoena and notice to produce dismissed; notice to produce allowed in full and subpoena allowed subject to limitations on access.
Legal Topics
['subpoenas' 'notice to Produce' 'legal Professional Privilege' 'client Legal Privilege' 'implied Waiver' 'expert Evidence' 'leave to Adduce Expert Evidence Out of Time']
['civil Procedure' 'evidence'] ['subpoenas' 'notice to Produce' 'legal Professional Privilege' 'client Legal Privilege' 'implied Waiver' 'expert Evidence' 'leave to Adduce Expert Evidence Out of Time']

Case Brief

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Procedural Posture

Civil Procedure Application Concerning Subpoena and Notice to Produce / Interlocutory Notice of Motion Filed 16 October 2019 Seeking to Set Aside a Subpoena and Notice to Produce

Legal Issues

  1. 1 ['Whether there had been an implied waiver of legal professional privilege in documents sought under the subpoena and notice to produce.' 'Whether the subpoena and notice to produce should be set aside or limited.' 'Whether access to subpoenaed documents should be stayed or limited to redacted documents.']

Ratio Decidendi

By referring to communications with experts and annexing some but not all communications in affidavits relied on to explain delay and obtain leave to rely on Mr Sims' expert report out of time, the plaintiffs put in issue matters relevant to delay, including the retainers, draft reports, disputes about costs or form, and whether a compliant report could be obtained. That conduct was inconsistent with maintaining legal professional privilege over the relevant communications. However, the subpoena was broader than the implied waiver and was limited, while the notice to produce was within the waiver and allowed in full.

Court Disposition

Notice of motion to set aside the subpoena and notice to produce dismissed; notice to produce allowed in full and subpoena allowed subject to limitations on access.

Orders

  • ['Allow the notice to produce in its entirety.' "Allow the subpoena, however, limiting the documents to which the defendant should be permitted access to: (a) all letters of instruction or variations thereof issued to Mr Barry Morris concerning a report to be prepared by him for use in these proceedings; (b) all...