Gillett v Nelson [2014] NSWSC 115

Gillett v Nelson [2014] NSWSC 115

Client legal privilege in the draft HDY advice was not shown to have been lost. Section 121(1) did not apply because the evidence suggested that the deceased was not a client in relation to the draft advice, and therefore was not "a client or party who has died" within the meaning of that provision. Section 122(2) was not engaged because the defendants did not rely, expressly or impliedly, on the contents of the draft advice in a manner inconsistent with maintaining privilege. Section 122(3) was not satisfied because the 28 August 2008 emails disclosed nothing of the reasoning, conclusion or substance of the advice, and no summary of the advice was given.

Jurisdiction
Australia
Judgment Date
25 February 2014
Procedural Posture
Family Provision Proceedings Under the Succession Act 2006 Involving a Procedural Ruling on Client Legal Privilege / Call for Production and Inspection of a Draft Legal Advice During Hearing
Outcome
The plaintiff's arguments that client legal privilege had been lost were rejected; the plaintiff was not entitled to inspect the draft advice.
Legal Topics
['client Legal Privilege' 'loss of Privilege' 'waiver' 'family Provision' 'call for Production' 'draft Legal Advice']
['evidence' 'succession'] ['client Legal Privilege' 'loss of Privilege' 'waiver' 'family Provision' 'call for Production' 'draft Legal Advice']

Case Brief

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Procedural Posture

Family Provision Proceedings Under the Succession Act 2006 Involving a Procedural Ruling on Client Legal Privilege / Call for Production and Inspection of a Draft Legal Advice During Hearing

Legal Issues

  1. 1 ['Whether s121(1) of the Evidence Act 1995 applied on the basis that the deceased was "a client or party who has died" in relation to the draft advice.' 'Whether the defendants acted inconsistently with objecting to disclosure of the draft advice for the purposes of s122(2) of the Evidence Act 1995.' 'Whether the defendants knowingly and voluntarily disclosed the substance of the draft advice for the purposes of s122(3) of the Evidence Act 1995.']

Ratio Decidendi

Client legal privilege in the draft HDY advice was not shown to have been lost. Section 121(1) did not apply because the evidence suggested that the deceased was not a client in relation to the draft advice, and therefore was not "a client or party who has died" within the meaning of that provision. Section 122(2) was not engaged because the defendants did not rely, expressly or impliedly, on the contents of the draft advice in a manner inconsistent with maintaining privilege. Section 122(3) was not satisfied because the 28 August 2008 emails disclosed nothing of the reasoning, conclusion or substance of the advice, and no summary of the advice was given.

Court Disposition

The plaintiff's arguments that client legal privilege had been lost were rejected; the plaintiff was not entitled to inspect the draft advice.

Orders

  • ['Privilege has not been lost in respect of the draft legal advice.' 'The plaintiff is not entitled to inspect the draft advice.']