Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2016] NSWSC 1599

Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2016] NSWSC 1599

Mobis failed to establish waiver because XL had not put its state of mind or the contents of the Costin Roe privileged documents in issue in the substantive proceedings. The present pleadings showed only Mobis making assertions about XL's state of mind, and XL's implied joinder of issue was insufficient. XL's disclosure of the 2 June 2015 report and reliance on Mr Windybank's affidavits occurred for the limited purpose of explaining delay on the amendment application, not to avoid the legal consequences of the 5 June 2015 indemnity letter or to deploy privileged communications in the substantive case. No inconsistency was established between XL's conduct and maintenance of privilege over...

Jurisdiction
Australia
Judgment Date
04 November 2016
Procedural Posture
Amended Notice of Motion Seeking Access to Subpoenaed Documents Over Which Legal Professional Privilege Was Claimed / Procedural Ruling in Equity Commercial List
Outcome
The amended notice of motion was otherwise dismissed; XL was ordered to file a rejoinder, and Mobis was ordered to pay XL's costs of the notice of motion.
Legal Topics
['waiver of Legal Professional Privilege' 'subpoenaed Documents' 'expert Engineering Communications' 'amendment Application' 'state of Mind and Inconsistency' 'insurance Indemnity and Exclusion Clause']
['legal Professional Privilege' 'civil Procedure' 'insurance'] ['waiver of Legal Professional Privilege' 'subpoenaed Documents' 'expert Engineering Communications' 'amendment Application' 'state of Mind and Inconsistency' 'insurance Indemnity and Exclusion Clause']

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Procedural Posture

Amended Notice of Motion Seeking Access to Subpoenaed Documents Over Which Legal Professional Privilege Was Claimed / Procedural Ruling in Equity Commercial List

Legal Issues

  1. 1 ['Whether XL waived legal professional privilege over communications with Costin Roe by its conduct on the amendment application and disclosure of the 2 June 2015 Costin Roe report.' 'Whether XL had put its state of mind, or the contents of privileged communications, in issue in the substantive proceedings.' 'Whether the common law or the Evidence Act 1995 (NSW) governed the privilege claim where the privilege claimant was not the subpoenaed producer.']

Ratio Decidendi

Mobis failed to establish waiver because XL had not put its state of mind or the contents of the Costin Roe privileged documents in issue in the substantive proceedings. The present pleadings showed only Mobis making assertions about XL's state of mind, and XL's implied joinder of issue was insufficient. XL's disclosure of the 2 June 2015 report and reliance on Mr Windybank's affidavits occurred for the limited purpose of explaining delay on the amendment application, not to avoid the legal consequences of the 5 June 2015 indemnity letter or to deploy privileged communications in the substantive case. No inconsistency was established between XL's conduct and maintenance of privilege over...

Court Disposition

The amended notice of motion was otherwise dismissed; XL was ordered to file a rejoinder, and Mobis was ordered to pay XL's costs of the notice of motion.

Orders

  • ['On or before 30 November 2016, XL file a rejoinder.' 'The Amended Notice of Motion filed 4 November 2016 be otherwise dismissed.' "The plaintiff pay the first defendant's costs of the notice of motion."]