Phung v Phung [2017] NSWSC 1486

Phung v Phung [2017] NSWSC 1486

Although the defendant waived privilege in respect of the legal advice referred to in his affidavit and, to the extent of the unredacted material, any additional material disclosed in the redacted file notes, the waiver did not extend to the redacted parts. After inspecting the unredacted file notes, the Court found that the redacted parts did not record the advice referred to in the affidavit, the file notes did not deal with one subject matter only, and disclosure of the redacted parts was not reasonably necessary to understand the unredacted parts. Privilege therefore continued to exist over the redacted parts.

Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Procedural Ruling Concerning Access to Documents Produced Under a Notice to Produce and Claimed to Be Privileged / Application by the Plaintiff for Access to Unredacted File Notes
Outcome
Access to the unredacted file notes refused.
Legal Topics
['client Legal Privilege' 'legal Professional Privilege' 'waiver of Privilege' 'notice to Produce' 'inspection of Documents' 'redacted File Notes']
['evidence' 'equity' 'civil Procedure'] ['client Legal Privilege' 'legal Professional Privilege' 'waiver of Privilege' 'notice to Produce' 'inspection of Documents' 'redacted File Notes']

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Procedural Posture

Procedural Ruling Concerning Access to Documents Produced Under a Notice to Produce and Claimed to Be Privileged / Application by the Plaintiff for Access to Unredacted File Notes

Legal Issues

  1. 1 ['Whether file notes produced to the Court contained confidential communications or confidential documents protected by client legal privilege under ss 118 and 119 of the Evidence Act 1995 (NSW).' "Whether s 121(3) of the Evidence Act 1995 (NSW) prevented privilege from applying because the communications or file notes affected a person's rights." "Whether disclosure of parts of the defendant's affidavit and provision of redacted file notes waived privilege over the redacted parts." 'Whether disclosure of the redacted parts was reasonably necessary to understand the unredacted parts under s 126 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

Although the defendant waived privilege in respect of the legal advice referred to in his affidavit and, to the extent of the unredacted material, any additional material disclosed in the redacted file notes, the waiver did not extend to the redacted parts. After inspecting the unredacted file notes, the Court found that the redacted parts did not record the advice referred to in the affidavit, the file notes did not deal with one subject matter only, and disclosure of the redacted parts was not reasonably necessary to understand the unredacted parts. Privilege therefore continued to exist over the redacted parts.

Court Disposition

Access to the unredacted file notes refused.

Orders

  • ["The plaintiff's application for access to the unredacted file notes produced in answer to the Notice to Produce is refused." 'The documents may be returned to the defendant.' "The plaintiff is to pay the defendant's costs of the application for access."]