Pomare v Hogan (No 2) [2019] NSWSC 496

Pomare v Hogan (No 2) [2019] NSWSC 496

Because the separate question turned principally on the plaintiff's state of mind or knowledge up to 15 May 2014, and because it was reasonable to infer that the plaintiff's state of mind was affected and informed by legal advice obtained during the relevant period, maintaining privilege over the listed documents would be unfair to the applicant. The later documents were potentially relevant because they might reveal why the applicant was joined and whether that reason was known before 15 May 2014. The plaintiff had therefore impliedly waived privilege over the documents listed in the notice of motion, and disclosure was required.

Jurisdiction
Australia
Judgment Date
29 April 2019
Procedural Posture
Civil Procedure Notice of Motion Concerning Discovery, Objection to Inspection and Client Legal Privilege / Procedural Ruling on the Second Defendant's Application for Access to Privileged Documents
Outcome
Access to privileged documents granted on the ground of implied waiver.
Legal Topics
['discovery' 'objection to Inspection' 'client Legal Privilege' 'implied Waiver' 'fairness' 'separate Question' 'discoverability of Cause of Action']
['civil Procedure' 'privilege' 'limitation of Actions' 'personal Injury'] ['discovery' 'objection to Inspection' 'client Legal Privilege' 'implied Waiver' 'fairness' 'separate Question' 'discoverability of Cause of Action']

Case Brief

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Procedural Posture

Civil Procedure Notice of Motion Concerning Discovery, Objection to Inspection and Client Legal Privilege / Procedural Ruling on the Second Defendant's Application for Access to Privileged Documents

Legal Issues

  1. 1 ['Whether the plaintiff impliedly waived client legal privilege over legal advice documents by putting his state of mind or knowledge in issue for the separate limitation question.' 'Whether fairness required disclosure of privileged documents, including documents created after the relevant date, to the second defendant.']

Ratio Decidendi

Because the separate question turned principally on the plaintiff's state of mind or knowledge up to 15 May 2014, and because it was reasonable to infer that the plaintiff's state of mind was affected and informed by legal advice obtained during the relevant period, maintaining privilege over the listed documents would be unfair to the applicant. The later documents were potentially relevant because they might reveal why the applicant was joined and whether that reason was known before 15 May 2014. The plaintiff had therefore impliedly waived privilege over the documents listed in the notice of motion, and disclosure was required.

Court Disposition

Access to privileged documents granted on the ground of implied waiver.

Orders

  • ['Order the plaintiff to grant to the second defendant access to the documents listed in prayer 1 of the notice of motion filed on 23 April 2019.' "The plaintiff pay the second defendant's costs of the notice of motion."]