Thompson v Rosen [2019] NSWSC 1258

Thompson v Rosen [2019] NSWSC 1258

The Court declined at that stage to determine the privilege claim over packet S-9 because Shine Lawyers, the producing party asserting privilege on behalf of the plaintiff, did not appear, the supporting affidavit was not an entirely satisfactory basis for adjudication, and the Court considered it inappropriate to inspect and determine the claim without detailed guidance from an appropriately instructed representative, particularly given the defendants' contention that the documents might affect a limitation defence.

Jurisdiction
Australia
Judgment Date
23 September 2019
Procedural Posture
Civil Procedure Ruling Concerning Subpoenas and Legal Professional Privilege in Medical Negligence Proceedings / Notice of Motion Filed on 4 July 2019 by the Second Defendant for Determination Under UCPR 1.8 of Whether Privilege Applies to Documents Produced by Shine Lawyers Pty Limited
Outcome
Privilege determination deferred; application to be listed before Harrison J on a suitable date for the parties to consider their positions.
Legal Topics
['subpoenas for Production' 'determination of Privilege Under UCPR 1.8' 'inspection of Subpoenaed Documents by the Court' 'limitation Defence and Discoverability' 'concurrent Federal Court Class Action Proceedings']
['civil Procedure' 'evidence' 'legal Professional Privilege' 'medical Negligence' 'limitation of Actions'] ['subpoenas for Production' 'determination of Privilege Under UCPR 1.8' 'inspection of Subpoenaed Documents by the Court' 'limitation Defence and Discoverability' 'concurrent Federal Court Class Action Proceedings']

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Procedural Posture

Civil Procedure Ruling Concerning Subpoenas and Legal Professional Privilege in Medical Negligence Proceedings / Notice of Motion Filed on 4 July 2019 by the Second Defendant for Determination Under UCPR 1.8 of Whether Privilege Applies to Documents Produced by Shine Lawyers Pty Limited

Legal Issues

  1. 1 ['Whether privilege, including legal professional privilege, applies to documents produced by Shine Lawyers Pty Limited in packet S-9.' 'Whether it is appropriate to determine the privilege claim in the absence of a representative of Shine Lawyers, the producing party asserting privilege on behalf of the plaintiff.' 'Whether the documents may bear on a foreshadowed limitation defence or an abuse of process contention arising from concurrent Federal Court proceedings.']

Ratio Decidendi

The Court declined at that stage to determine the privilege claim over packet S-9 because Shine Lawyers, the producing party asserting privilege on behalf of the plaintiff, did not appear, the supporting affidavit was not an entirely satisfactory basis for adjudication, and the Court considered it inappropriate to inspect and determine the claim without detailed guidance from an appropriately instructed representative, particularly given the defendants' contention that the documents might affect a limitation defence.

Court Disposition

Privilege determination deferred; application to be listed before Harrison J on a suitable date for the parties to consider their positions.

Orders

  • ['The application was to be listed before Harrison J at a date suitable to the parties so that they could consider their respective positions and indicate what should then happen.']