Farriss v Axford (No 2) [2021] NSWSC 1055

Farriss v Axford (No 2) [2021] NSWSC 1055

The statements annexed to the investigators’ reports were created for the dominant purpose of providing legal advice or for use in anticipated litigation, and therefore are privileged under sections 118 and 119 of the Evidence Act 1995 (NSW); no waiver of privilege occurred because there was no evidence such statements were relied upon in preparing affidavits used in this proceeding. Subpoenas seeking post-accident maintenance records were set aside as those records were not relevant to liability for the pre-accident incident.

Parties
First Plaintiff: Timothy William Farriss; Second Plaintiff: Montana Productions Pty Ltd; First Defendant: John William Axford; Second Defendant: Jill Mary Axford; Third Defendant: Church Point Charter and Shipping Pty Ltd
Jurisdiction
Australia
Judgment Date
10 August 2021
Procedural Posture
Civil / Procedural Ruling on Motions Prior to Trial
Outcome
Plaintiffs' motion challenging privilege dismissed; subpoenas set aside; documents produced under subpoenas to be returned; plaintiffs to pay costs of both motions.
Legal Topics
Subpoenas, Privilege, Relevance, Application to Set Aside, Legal Professional Privilege, Waiver of Privilege, Production of Documents
Civil Procedure Subpoenas Privilege Relevance Application to Set Aside Legal Professional Privilege Waiver of Privilege Production of Documents

Case Brief

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Parties

Timothy William Farriss

First Plaintiff

Montana Productions Pty Ltd

Second Plaintiff

John William Axford

First Defendant

Jill Mary Axford

Second Defendant

Church Point Charter and Shipping Pty Ltd

Third Defendant

Procedural Posture

Civil / Procedural Ruling on Motions Prior to Trial

Legal Issues

  1. 1 Whether investigators' statements attached to reports are privileged from production to plaintiffs
  2. 2 Whether privilege in those documents has been waived by the defendants
  3. 3 Whether subpoenas to produce post-accident maintenance records should be set aside for lack of relevance

Ratio Decidendi

The statements annexed to the investigators’ reports were created for the dominant purpose of providing legal advice or for use in anticipated litigation, and therefore are privileged under sections 118 and 119 of the Evidence Act 1995 (NSW); no waiver of privilege occurred because there was no evidence such statements were relied upon in preparing affidavits used in this proceeding. Subpoenas seeking post-accident maintenance records were set aside as those records were not relevant to liability for the pre-accident incident.

Court Disposition

Plaintiffs' motion challenging privilege dismissed; subpoenas set aside; documents produced under subpoenas to be returned; plaintiffs to pay costs of both motions.

Orders

  • The Notice of Motion filed by the plaintiffs on 2 December 2020 is dismissed.
  • The Subpoenas to Produce addressed to John Axford, Bryce Adrian Statis and Ocean Phase Marine Electrical Solutions Pty Ltd filed on 16 July 2021 are set aside pursuant to r 33.4 Uniform Civil Procedure Rules 2005 (NSW).