Fogg v Kane Constructions (NSW) Pty Limited and Anor; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 3) [2014] NSWSC 1821

Fogg v Kane Constructions (NSW) Pty Limited and Anor; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) (No. 3) [2014] NSWSC 1821

MFI 32 and MFI 35 were prima facie subject to client legal privilege under s.119 Evidence Act 1995, and the Plaintiff did not establish waiver under s.122 because there was no evidence that Mr Brownlee actually refreshed his memory from those documents or otherwise adopted inconsistent positions concerning the privilege.

Jurisdiction
Australia
Judgment Date
05 February 2014
Procedural Posture
Damages Claim for Personal Injury / Procedural Ruling During Trial on Claim of Client Legal Privilege Over Witness Statements
Outcome
Claim of client legal privilege upheld.
Legal Topics
['client Legal Privilege' 'waiver of Privilege' 'witness Statements' 'refreshing Memory']
['evidence' 'civil Procedure' 'personal Injury'] ['client Legal Privilege' 'waiver of Privilege' 'witness Statements' 'refreshing Memory']

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Procedural Posture

Damages Claim for Personal Injury / Procedural Ruling During Trial on Claim of Client Legal Privilege Over Witness Statements

Legal Issues

  1. 1 ['Whether statements of Gary Brownlee marked MFI 32 and MFI 35 were protected by client legal privilege under s.119 Evidence Act 1995.' 'Whether any client legal privilege in MFI 32 and MFI 35 had been lost by waiver under s.122 Evidence Act 1995.' "Whether the witness's repeated recalling of events for multiple statements amounted to refreshing memory so as to waive privilege."]

Ratio Decidendi

MFI 32 and MFI 35 were prima facie subject to client legal privilege under s.119 Evidence Act 1995, and the Plaintiff did not establish waiver under s.122 because there was no evidence that Mr Brownlee actually refreshed his memory from those documents or otherwise adopted inconsistent positions concerning the privilege.

Court Disposition

Claim of client legal privilege upheld.

Orders

  • ['The claim of client legal privilege with respect to the statements which are MFI 32 and MFI 35 is upheld.']