Artistic Builders Pty Ltd and Anor v Nash and Ors [2009] NSWSC 102

Artistic Builders Pty Ltd and Anor v Nash and Ors [2009] NSWSC 102

Where a client sues a former solicitor alleging negligence or breach of retainer and the retainer/advice is put in issue on the pleadings, the plaintiff waives client legal privilege over documents held by those former solicitors relevant to the pleaded issues; privilege is lost to the extent relevant to the matters in controversy, which are to be assessed by reference to the pleadings and issues joined. This applies even if some documents do not directly but only inferentially relate to those issues. The orders sought for production and inspection are therefore granted, with the scope of discoverable documents defined by relevance to the issues between the plaintiffs and Harris & Co.

Parties
Plaintiff: Artistic Builders Pty Limited; Plaintiff: ABC Plumbing Services Pty Limited; First Defendant: Gregory Nash; Second Defendant: Michael O'Neill; Third Defendant: John Tomko; Fourth Defendant: Alexander Koroknay; Eleventh Defendant: Paul Thomas Hayson; Twelfth Defendant: Ian Michael Smith; Thirteenth Defendant: Stephen Cleve Remington; Fourteenth Defendant: Grant Stahl Hansen; Fifteenth Defendant: James Edward Behringer; Sixteenth Defendant: Jennifer Anne Graves; Seventeenth Defendant: Patrick Joseph O'Brien
Jurisdiction
Australia
Judgment Date
06 March 2009
Procedural Posture
Interlocutory Motion / Ruling on Discovery and Client Legal Privilege
Outcome
Orders made for production and inspection of specified documents; declaration that privilege lost over relevant documents; costs ordered against plaintiffs.
Legal Topics
Client Legal Privilege, Discovery of Documents, Solicitor/client Relationships, Implied Waiver, Professional Negligence
Evidence Civil Procedure Client Legal Privilege Discovery of Documents Solicitor/client Relationships Implied Waiver Professional Negligence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Artistic Builders Pty Limited

Plaintiff

ABC Plumbing Services Pty Limited

Plaintiff

Gregory Nash

First Defendant

Michael O'Neill

Second Defendant

John Tomko

Third Defendant

Alexander Koroknay

Fourth Defendant

Paul Thomas Hayson

Eleventh Defendant

Ian Michael Smith

Twelfth Defendant

Stephen Cleve Remington

Thirteenth Defendant

Grant Stahl Hansen

Fourteenth Defendant

James Edward Behringer

Fifteenth Defendant

Jennifer Anne Graves

Sixteenth Defendant

Patrick Joseph O'Brien

Seventeenth Defendant

Procedural Posture

Interlocutory Motion / Ruling on Discovery and Client Legal Privilege

Legal Issues

  1. 1 Whether client legal privilege has been lost over certain documents held by former solicitors (Harris & Co) relating to proceedings by the plaintiffs against former solicitors (NOT) and Harris & Co themselves.
  2. 2 Whether documents are required to be produced/discovered to first to fourth and eleventh to seventeenth defendants.

Ratio Decidendi

Where a client sues a former solicitor alleging negligence or breach of retainer and the retainer/advice is put in issue on the pleadings, the plaintiff waives client legal privilege over documents held by those former solicitors relevant to the pleaded issues; privilege is lost to the extent relevant to the matters in controversy, which are to be assessed by reference to the pleadings and issues joined. This applies even if some documents do not directly but only inferentially relate to those issues. The orders sought for production and inspection are therefore granted, with the scope of discoverable documents defined by relevance to the issues between the plaintiffs and Harris & Co.

Court Disposition

Orders made for production and inspection of specified documents; declaration that privilege lost over relevant documents; costs ordered against plaintiffs.

Orders

  • Declaration that documents (as specified in the affidavit of Robert Bruce Henry Schneider dated 17 September 2008 and exhibit 'RBHS1') are not privileged and may be discovered/relyed upon by 11th–17th defendants.
  • Plaintiffs to pay 11th–17th defendants' costs of the motion brought by Harris & Co.