Jacups v The Fidelity Fund Management Committee of the Law Society of NSW [2022] NSWSC 313

Jacups v The Fidelity Fund Management Committee of the Law Society of NSW [2022] NSWSC 313

Because the appeal to the Supreme Court is a de novo review, not a rehearing or judicial review, the contents of documents before the Management Committee decision-maker are not relevant to issues to be decided by the Court, and hence orders to produce such documents are liable to be set aside. If relevant, the documents are nevertheless protected by properly claimed client legal privilege which was neither waived by internal disclosure to the Management Committee nor by any accidental or non-voluntary disclosure to the plaintiff.

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Notice of Motion in Ongoing Supreme Court Proceedings / Interlocutory; Procedural Ruling on Notice to Produce and Client Legal Privilege
Outcome
Notice of Motion dismissed; paragraph 1 of Notice to Produce set aside; costs are defendants' costs in the cause
Legal Topics
['legal Practitioners Fidelity Fund' 'notice to Produce' 'client Legal Privilege' 'appeal to Supreme Court' 'relevance of Documents' 'privilege Waiver']
['civil Procedure' 'legal Profession Law'] ['legal Practitioners Fidelity Fund' 'notice to Produce' 'client Legal Privilege' 'appeal to Supreme Court' 'relevance of Documents' 'privilege Waiver']

Case Brief

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Procedural Posture

Notice of Motion in Ongoing Supreme Court Proceedings / Interlocutory; Procedural Ruling on Notice to Produce and Client Legal Privilege

Legal Issues

  1. 1 ['Whether documents before the Management Committee are relevant to a de novo appeal under s 247 of the LPU Law' 'Whether documents in Bundle B (Annexure G and Annexure I) are protected by client legal privilege under Evidence Act 1995 (NSW)' 'Whether legal privilege has been waived by provision or disclosure of documents' 'Whether Notice to Produce should be set aside for seeking irrelevant documents']

Ratio Decidendi

Because the appeal to the Supreme Court is a de novo review, not a rehearing or judicial review, the contents of documents before the Management Committee decision-maker are not relevant to issues to be decided by the Court, and hence orders to produce such documents are liable to be set aside. If relevant, the documents are nevertheless protected by properly claimed client legal privilege which was neither waived by internal disclosure to the Management Committee nor by any accidental or non-voluntary disclosure to the plaintiff.

Court Disposition

Notice of Motion dismissed; paragraph 1 of Notice to Produce set aside; costs are defendants' costs in the cause

Orders

  • ['Notice of Motion dated 3 December 2021 dismissed.' 'Order that paragraph 1 of the Notice to Produce filed 11 October 2021 be set aside.' "Costs are the defendants' costs in the cause."]