Uebergang v Uebergang [2017] NSWSC 1058

Uebergang v Uebergang [2017] NSWSC 1058

Privilege claims over the majority of the subpoenaed documents were upheld because litigation was reasonably anticipated from 11 February 2016 and/or because the accountant acted as the defendants’ agent for the purpose of obtaining legal advice; however, implied waiver attached to documents evidencing instructions to solicitors as specifically pleaded, requiring limited disclosure.

Jurisdiction
Australia
Judgment Date
09 August 2017
Procedural Posture
Civil (equity) / Interlocutory Application Regarding Privilege Claims Over Subpoenaed Documents
Outcome
Privilege claim mostly upheld with partial access granted to specific documents.
Legal Topics
['legal Professional Privilege' 'privilege Over Subpoenaed Documents' 'implied Waiver of Privilege' 'common Law Privilege' 'subpoena Set Aside' 'role of Agents in Privilege' 'inspection of Documents for Privilege']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'privilege Over Subpoenaed Documents' 'implied Waiver of Privilege' 'common Law Privilege' 'subpoena Set Aside' 'role of Agents in Privilege' 'inspection of Documents for Privilege']

Case Brief

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Procedural Posture

Civil (equity) / Interlocutory Application Regarding Privilege Claims Over Subpoenaed Documents

Legal Issues

  1. 1 ['Whether documents produced on subpoena are subject to legal professional privilege' 'Whether an implied waiver of privilege occurred due to pleading or conduct' 'Whether communications with accountants were protected by privilege' 'Whether adequate evidence was provided to substantiate a privilege claim']

Ratio Decidendi

Privilege claims over the majority of the subpoenaed documents were upheld because litigation was reasonably anticipated from 11 February 2016 and/or because the accountant acted as the defendants’ agent for the purpose of obtaining legal advice; however, implied waiver attached to documents evidencing instructions to solicitors as specifically pleaded, requiring limited disclosure.

Court Disposition

Privilege claim mostly upheld with partial access granted to specific documents.

Orders

  • ['The Plaintiff is to have access to the documents produced on subpoena by Avern McIntyre and Co that are contained in Exhibit A.' 'The balance of the documents produced on subpoena by Avern McIntyre & Co are to be released to the defendants for return to that firm, other than those documents in relation to which...