Biseja Pty Ltd v NSI Group Pty Ltd [2006] NSWSC 1497

Biseja Pty Ltd v NSI Group Pty Ltd [2006] NSWSC 1497

The draft expert report is protected by litigation privilege within s 119 of the Evidence Act 1995 (NSW), and there was no knowing and voluntary disclosure by Biseja to establish waiver of privilege within the meaning of s 122(2). Therefore, the claim for privilege is upheld, and the draft report is inadmissible. Leave to amend the cross-claim is granted as there is no prejudice or discretionary reason against it. The statements made in the building adjudication are not admissible under ss 64 or 69 of the Evidence Act 1995 (NSW).

Jurisdiction
Australia
Judgment Date
04 December 2006
Procedural Posture
Civil / Interlocutory Judgment on Evidence, Privilege, and Amendment
Outcome
Claim for privilege upheld. Waiver not established. Amendment allowed. Statement excluded.
Legal Topics
['litigation Privilege' 'waiver of Privilege' 'amendment of Pleadings' 'admissibility of Prior Statements']
['evidence' 'civil Procedure' 'contract'] ['litigation Privilege' 'waiver of Privilege' 'amendment of Pleadings' 'admissibility of Prior Statements']

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Procedural Posture

Civil / Interlocutory Judgment on Evidence, Privilege, and Amendment

Legal Issues

  1. 1 ['Whether the draft expert report is protected by litigation privilege under s 119 of the Evidence Act 1995 (NSW)' 'Whether litigation privilege was waived under s 122 of the Evidence Act 1995 (NSW)' 'Whether statements made in building adjudication are admissible under ss 64 or 69 of the Evidence Act 1995 (NSW)' 'Whether leave should be granted for late amendment of cross-claim']

Ratio Decidendi

The draft expert report is protected by litigation privilege within s 119 of the Evidence Act 1995 (NSW), and there was no knowing and voluntary disclosure by Biseja to establish waiver of privilege within the meaning of s 122(2). Therefore, the claim for privilege is upheld, and the draft report is inadmissible. Leave to amend the cross-claim is granted as there is no prejudice or discretionary reason against it. The statements made in the building adjudication are not admissible under ss 64 or 69 of the Evidence Act 1995 (NSW).

Court Disposition

Claim for privilege upheld. Waiver not established. Amendment allowed. Statement excluded.

Orders

  • ['Evidence of the draft report is not to be adduced.' 'Draft report removed from evidence (CX03 tab 9).' 'Leave granted for cross-claimant to amend cross-claim by filing Further Amended Statement of Cross-Claim as annexed to Notice of Motion filed 27 November 2006.' 'Pages 312 to 317 of CX01 (statements from...