Baulderstone Hornibrook Pty Ltd v Queensland Investment Corporation [2011] NSWSC 127

Baulderstone Hornibrook Pty Ltd v Queensland Investment Corporation [2011] NSWSC 127

The referee's report was rejected because the agreed waiver in the 14 August 2009 letter, properly construed, was confined to solicitors' file notes recording communications between Allens Arthur Robinson and APP, RCP or WTP in relation to clause 23.1(d) functions and relevant to a fact in issue. It did not extend to file notes of communications with QIC, internal Allens communications, or communications with counsel or others that merely reported or referred to a communication with APP, RCP or WTP. However, the defendant was not entitled to insist that the communication have the dominant purpose of a clause 23.1(d) function; it was sufficient that the file note recorded a communication...

Jurisdiction
Australia
Judgment Date
04 March 2011
Procedural Posture
Procedural and Other Ruling in Building and Construction Dispute / Competing Motions Concerning Adoption or Rejection of a Referee's Report on Discovery, Production and Waiver of Privilege
Outcome
Referee's report rejected; plaintiff's motion for adoption dismissed insofar as it sought adoption and dependent orders; defendant's motion succeeded to the extent that the referee's report was rejected.
Legal Topics
['waiver of Privilege' 'discovery and Production of Documents' "referee's Report" "solicitors' File Notes" 'construction of Agreed Waiver']
['practice and Procedure' 'evidence' 'building and Construction'] ['waiver of Privilege' 'discovery and Production of Documents' "referee's Report" "solicitors' File Notes" 'construction of Agreed Waiver']

Case Brief

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Procedural Posture

Procedural and Other Ruling in Building and Construction Dispute / Competing Motions Concerning Adoption or Rejection of a Referee's Report on Discovery, Production and Waiver of Privilege

Legal Issues

  1. 1 ["Whether the defendant/cross-claimant was entitled to claim privilege over redacted material in file notes listed in the plaintiff's notice of motion dated 11 October 2010." 'Whether the defendant/cross-claimant had provided all file notes created by partners, solicitors or other employees of Allens Arthur Robinson that fell within the discovery categories and were agreed to be provided pursuant to the letter dated 14 August 2009.' 'Whether the agreed waiver extended to file notes of communications between Allens and QIC or internal Allens communications that referred to or reported communications with APP, RCP or WTP.' 'Whether a communication had to have the dominant purpose of a clause 23.1(d) function to fall within the waiver.']

Ratio Decidendi

The referee's report was rejected because the agreed waiver in the 14 August 2009 letter, properly construed, was confined to solicitors' file notes recording communications between Allens Arthur Robinson and APP, RCP or WTP in relation to clause 23.1(d) functions and relevant to a fact in issue. It did not extend to file notes of communications with QIC, internal Allens communications, or communications with counsel or others that merely reported or referred to a communication with APP, RCP or WTP. However, the defendant was not entitled to insist that the communication have the dominant purpose of a clause 23.1(d) function; it was sufficient that the file note recorded a communication...

Court Disposition

Referee's report rejected; plaintiff's motion for adoption dismissed insofar as it sought adoption and dependent orders; defendant's motion succeeded to the extent that the referee's report was rejected.

Orders

  • ["The referee's report was rejected." "The plaintiff's motion insofar as it sought adoption of the report and orders dependent upon adoption was dismissed." "The defendant's motion succeeded to the extent that the referee's report was rejected, but not so as to result in an unqualified yes to both questions answered...