Carey v Carey (No 2) [2008] FCA 364

Carey v Carey (No 2) [2008] FCA 364

The Applicants fell within Order 15A, rule 6 and the Court exercised its discretion to require production under the 29 November 2007 Notice to Produce because the requested documents, particularly account statements concerning the $120,432, were of considerable potential importance to whether the Applicants had a right to obtain relief. The 1 February 2008 Notice to Produce for Naomi Sharp's advice was set aside because the affidavit references relied on by the Applicants did not create inconsistency with maintaining confidentiality and therefore did not waive privilege.

Jurisdiction
Australia
Judgment Date
10 March 2008
Procedural Posture
Practice and Procedure: Preliminary Discovery and Notices to Produce / Interlocutory Notice of Motion and Oral Application to Set Aside Notices to Produce
Outcome
The Respondent's motion to set aside the Applicants' 29 November 2007 Notice to Produce was dismissed; production was ordered for that notice; the Applicants' 1 February 2008 Notice to Produce was set aside; further procedural orders were made and costs were reserved.
Legal Topics
['preliminary Discovery' 'notices to Produce' 'exercise of Discretion' 'legal Professional Privilege' 'waiver of Privilege']
['practice and Procedure' 'evidence'] ['preliminary Discovery' 'notices to Produce' 'exercise of Discretion' 'legal Professional Privilege' 'waiver of Privilege']

Case Brief

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Procedural Posture

Practice and Procedure: Preliminary Discovery and Notices to Produce / Interlocutory Notice of Motion and Oral Application to Set Aside Notices to Produce

Legal Issues

  1. 1 ["Whether the Respondent's Notice of Motion dated 14 December 2007 should set aside the Applicants' Notice to Produce dated 29 November 2007." 'Whether the documents sought by the Applicants under Order 15A, rule 6 of the Federal Court Rules 1979 (Cth) should be produced.' "Whether privilege in counsel Naomi Sharp's advice dated 20 December 2007 had been waived so that the Applicants' Notice to Produce dated 1 February 2008 should be enforced." "Whether further procedural orders should be made concerning the time for filing an affidavit and the Respondent's Notice to Produce dated 23 November 2007."]

Ratio Decidendi

The Applicants fell within Order 15A, rule 6 and the Court exercised its discretion to require production under the 29 November 2007 Notice to Produce because the requested documents, particularly account statements concerning the $120,432, were of considerable potential importance to whether the Applicants had a right to obtain relief. The 1 February 2008 Notice to Produce for Naomi Sharp's advice was set aside because the affidavit references relied on by the Applicants did not create inconsistency with maintaining confidentiality and therefore did not waive privilege.

Court Disposition

The Respondent's motion to set aside the Applicants' 29 November 2007 Notice to Produce was dismissed; production was ordered for that notice; the Applicants' 1 February 2008 Notice to Produce was set aside; further procedural orders were made and costs were reserved.

Orders

  • ['The Notice of Motion dated 14 December 2007 in respect to the Notice to Produce dated 29 November 2007 be dismissed.' 'The documents in respect to that Notice to Produce be produced to the Applicants on or before 31 March 2008.' 'The Notice to Produce served by the Applicants upon the Respondent dated 1 February...