Ussia v Mirvac Real Estate Pty Ltd [2023] NSWDC 521

Ussia v Mirvac Real Estate Pty Ltd [2023] NSWDC 521

Although the documents in subpoena packet S-15 were confidential and were prepared for the purpose of litigation, the first defendant adduced no evidence establishing that the draft reports or email chain were prepared for the dominant purpose of the client being provided with professional legal services relating to the proceedings. The Court declined to inspect the documents in the absence of supporting evidence and the privilege claim was not made out; the plaintiff was therefore entitled to access to the documents.

Jurisdiction
Australia
Judgment Date
24 November 2023
Procedural Posture
Civil Procedure Motion Concerning Subpoena Production and Client Legal Privilege / Notice of Motion Filed 11 October 2023 Seeking Determination of a Claim for Privilege Over Subpoena Packet S 15
Outcome
The first defendant's privilege objection was overruled, the plaintiff was granted general access to subpoena packet S-15, and the motion was otherwise dismissed.
Legal Topics
['subpoenas' 'objection to Production of Documents' 'expert Reports' 'dominant Purpose Test' 'confidential Documents' 'waiver of Privilege' 'costs']
['civil Procedure' 'evidence' 'client Legal Privilege'] ['subpoenas' 'objection to Production of Documents' 'expert Reports' 'dominant Purpose Test' 'confidential Documents' 'waiver of Privilege' 'costs']

Case Brief

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Procedural Posture

Civil Procedure Motion Concerning Subpoena Production and Client Legal Privilege / Notice of Motion Filed 11 October 2023 Seeking Determination of a Claim for Privilege Over Subpoena Packet S 15

Legal Issues

  1. 1 ['Whether the documents in subpoena packet S-15 were privileged under s 119 of the Evidence Act 1995.' 'Whether the email chain could be characterised as confidential documents, not only confidential communications.' 'Whether the first defendant established that the draft reports and email chain were prepared for the dominant purpose of the client being provided with professional legal services relating to proceedings.' 'Whether the Court should inspect the documents to determine the privilege claim in the absence of supporting evidence.' 'Whether any privilege had been waived by production to the Court and the invitation to inspect the documents.' 'Whether there was evidence justifying an order requiring Dr Geoff Smith to comply further with the subpoena.' 'What costs orders should be made on the motion.']

Ratio Decidendi

Although the documents in subpoena packet S-15 were confidential and were prepared for the purpose of litigation, the first defendant adduced no evidence establishing that the draft reports or email chain were prepared for the dominant purpose of the client being provided with professional legal services relating to the proceedings. The Court declined to inspect the documents in the absence of supporting evidence and the privilege claim was not made out; the plaintiff was therefore entitled to access to the documents.

Court Disposition

The first defendant's privilege objection was overruled, the plaintiff was granted general access to subpoena packet S-15, and the motion was otherwise dismissed.

Orders

  • ["Pursuant to r 1.9 UCPR, the first defendant's objection to the production of subpoena packet S-15 on the ground that the contents of subpoena packet S-15 are privileged is overruled." 'Grant the plaintiff general access to the documents produced by Clyde & Co on behalf of Dr Geoff Smith in subpoena packet S-15.'...