In the matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 516

In the matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 516

By advancing claims in estoppel, rectification and unilateral mistake, the fifth defendant put his state of mind concerning the settlement deed in issue, and it was likely that what was said at the settlement conference and legal advice given there contributed to that state of mind. Maintaining privilege over those notes would be inconsistent and potentially unfair. The fifth defendant also expressly waived privilege over instructions concerning settlement offers made on 19 December 2019. Accordingly, except for notes of conferences between the fifth defendant and other defendants excluding the plaintiff, the fifth defendant was not entitled to maintain privilege over the 38 pages of notes.

Jurisdiction
Australia
Judgment Date
08 May 2020
Procedural Posture
Equity Proceedings; Interlocutory Privilege Dispute Concerning Settlement Conference Notes / Determination on the Papers Before Final Hearing of the Plaintiff's and Fifth Defendant's Interlocutory Processes
Outcome
Privilege claim rejected in part; the fifth defendant was required to provide the relevant pages of notes to the plaintiff, except for notes of conferences between the fifth defendant and other defendants excluding the plaintiff.
Legal Topics
['waiver of Privilege' 'implied Waiver' 'express Waiver' 'settlement Deed' 'settlement Conference Notes' 'estoppel' 'rectification' 'mistake' 'common Interest Privilege']
['equity' 'civil Procedure' 'legal Professional Privilege'] ['waiver of Privilege' 'implied Waiver' 'express Waiver' 'settlement Deed' 'settlement Conference Notes' 'estoppel' 'rectification' 'mistake' 'common Interest Privilege']

Case Brief

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Procedural Posture

Equity Proceedings; Interlocutory Privilege Dispute Concerning Settlement Conference Notes / Determination on the Papers Before Final Hearing of the Plaintiff's and Fifth Defendant's Interlocutory Processes

Legal Issues

  1. 1 ['Whether the fifth defendant could maintain a claim for privilege over notes of an informal settlement conference on 19 December 2019.' 'Whether the fifth defendant impliedly waived privilege by advancing claims based on estoppel, rectification and unilateral mistake that put his state of mind in issue.' 'Whether the fifth defendant expressly waived privilege in respect of instructions to his lawyers concerning settlement offers made on 19 December 2019.' 'Whether notes of defendant-only conferences were protected by common interest privilege.']

Ratio Decidendi

By advancing claims in estoppel, rectification and unilateral mistake, the fifth defendant put his state of mind concerning the settlement deed in issue, and it was likely that what was said at the settlement conference and legal advice given there contributed to that state of mind. Maintaining privilege over those notes would be inconsistent and potentially unfair. The fifth defendant also expressly waived privilege over instructions concerning settlement offers made on 19 December 2019. Accordingly, except for notes of conferences between the fifth defendant and other defendants excluding the plaintiff, the fifth defendant was not entitled to maintain privilege over the 38 pages of notes.

Court Disposition

Privilege claim rejected in part; the fifth defendant was required to provide the relevant pages of notes to the plaintiff, except for notes of conferences between the fifth defendant and other defendants excluding the plaintiff.

Orders

  • ['Save in respect of notes of conferences between the fifth defendant and other defendants excluding the plaintiff, the fifth defendant is not entitled to maintain a claim for privilege over the 38 pages of notes made by Ms Farahbakht of the settlement conference on 19 December 2019.' 'Direct the solicitors for the...