Lila Foxall (by her tutor Robert Foxall) v Kristy Carter (No. 2) [2023] NSWSC 872

Lila Foxall (by her tutor Robert Foxall) v Kristy Carter (No. 2) [2023] NSWSC 872

The waiver argument failed because Dr McLean's final report had not yet been tendered or read into evidence, but the defendant adduced no evidence proving the facts necessary to establish that the subpoenaed draft reports were privileged. The claim for legal professional privilege over Dr McLean's draft reports therefore could not be maintained.

Jurisdiction
Australia
Judgment Date
25 July 2023
Procedural Posture
Common Law Procedural Ruling Concerning Legal Professional Privilege Over Subpoenaed Documents / Notice of Motion Concerning Access to Subpoenaed Packets 33 and 34
Outcome
The defendant's notice of motion filed 13 April 2023 was dismissed, access to subpoenaed packets 33-34 was granted immediately to the plaintiff, and the defendant was ordered to pay the plaintiff's costs.
Legal Topics
['subpoena' 'expert Reports' 'draft Expert Reports' 'onus of Proof' 'waiver of Privilege']
['civil Procedure' 'evidence' 'legal Professional Privilege'] ['subpoena' 'expert Reports' 'draft Expert Reports' 'onus of Proof' 'waiver of Privilege']

Case Brief

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Procedural Posture

Common Law Procedural Ruling Concerning Legal Professional Privilege Over Subpoenaed Documents / Notice of Motion Concerning Access to Subpoenaed Packets 33 and 34

Legal Issues

  1. 1 ["Whether the defendant's claim for legal professional privilege could be maintained over documents sought on a subpoena directed to Dr McLean." "Whether the defendant discharged the onus of proving the facts necessary to establish legal professional privilege over Dr McLean's earlier reports." "Whether privilege over Dr McLean's draft reports had been waived by service of the final report or production to the court."]

Ratio Decidendi

The waiver argument failed because Dr McLean's final report had not yet been tendered or read into evidence, but the defendant adduced no evidence proving the facts necessary to establish that the subpoenaed draft reports were privileged. The claim for legal professional privilege over Dr McLean's draft reports therefore could not be maintained.

Court Disposition

The defendant's notice of motion filed 13 April 2023 was dismissed, access to subpoenaed packets 33-34 was granted immediately to the plaintiff, and the defendant was ordered to pay the plaintiff's costs.

Orders

  • ["The defendant's notice of motion filed 13 April 2023 is dismissed." 'The plaintiff is entitled to have access to the subpoenaed packets (33-34) immediately.' "The defendant is to pay the plaintiff's costs."]