Gordian Runoff v Price & Ors [2004] NSWSC 600

Gordian Runoff v Price & Ors [2004] NSWSC 600

BHE acted inconsistently by maintaining legal professional privilege in the content of discussions while asserting that it was the beneficiary of consent evidenced only through those discussions, and by relying on the same privileged communications to support defences of laches, acquiescence, waiver and estoppel....

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 July 2004
Procedural Posture
Proceedings in the Equity Division Commercial List Seeking to Restrain Solicitors From Providing Professional Legal Services / Interlocutory Ruling on Claim of Privilege and Admissibility of Affidavit Evidence
Outcome
BHE's privilege objection was rejected; the relevant affidavit paragraphs were to be admitted subject to any other proper objection.
Legal Topics
['litigation Privilege' 'loss of Privilege' 'implied Consent Under S 122(4) of the Evidence Act' 'inconsistency' 'admissibility of Affidavit Evidence' 'laches, Acquiescence, Waiver and Estoppel']
['evidence' 'legal Professional Privilege' 'civil Procedure'] ['litigation Privilege' 'loss of Privilege' 'implied Consent Under S 122(4) of the Evidence Act' 'inconsistency' 'admissibility of Affidavit Evidence' 'laches, Acquiescence, Waiver and Estoppel']

Source-derived case record

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Procedural Posture

Proceedings in the Equity Division Commercial List Seeking to Restrain Solicitors From Providing Professional Legal Services / Interlocutory Ruling on Claim of Privilege and Admissibility of Affidavit Evidence

Legal Issues

  1. 1 ["Whether BHE lost or gave implied consent to loss of privilege under s 122(4) of the Evidence Act in communications said to evidence Gordian's consent to Phillips Fox acting for BHE." 'Whether it was inconsistent for BHE to assert legal professional privilege in discussions while relying on those discussions to support consent and defences of laches, acquiescence, waiver and estoppel.' "Whether paragraph 165 of Mr Price's affidavit and paragraph 30 of Ms Vordis' affidavit should be admitted."]

Ratio Decidendi

BHE acted inconsistently by maintaining legal professional privilege in the content of discussions while asserting that it was the beneficiary of consent evidenced only through those discussions, and by relying on the same privileged communications to support defences of laches, acquiescence, waiver and estoppel. That inconsistency amounted at least to implied consent for the purposes of s 122(4) of the Evidence Act, so the privilege objection failed.

Court Disposition

BHE's privilege objection was rejected; the relevant affidavit paragraphs were to be admitted subject to any other proper objection.

Orders

  • ["The relevant paragraph of Mr Price's affidavit should be admitted, subject to any other proper objection that may be taken." "Paragraph 30 of Ms Vordis' affidavit in reply should be admitted."]