Du Bray v McIlwraith [2009] NSWSC 812

Du Bray v McIlwraith [2009] NSWSC 812

Disclosure of the substance of counsel's advice in an affidavit does not cause loss of privilege in the entire brief unless access to the brief is reasonably necessary for proper understanding of the disclosed advice under s 126 of the Evidence Act 1995, which, on the facts, it is not.

Jurisdiction
Australia
Judgment Date
13 August 2009
Procedural Posture
Application to Set Aside Subpoena / Interlocutory
Outcome
Subpoena set aside; plaintiff to pay costs of the motion.
Legal Topics
['client Legal Privilege' 'subpoena' 'eligibility of Documents' 'loss of Privilege']
['evidence' 'equity'] ['client Legal Privilege' 'subpoena' 'eligibility of Documents' 'loss of Privilege']

Case Brief

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Procedural Posture

Application to Set Aside Subpoena / Interlocutory

Legal Issues

  1. 1 ['Whether client legal privilege in brief to counsel has been lost due to disclosure of substance of advice' 'Whether access to brief is reasonably necessary for understanding disclosed advice pursuant to s 126 Evidence Act 1995']

Ratio Decidendi

Disclosure of the substance of counsel's advice in an affidavit does not cause loss of privilege in the entire brief unless access to the brief is reasonably necessary for proper understanding of the disclosed advice under s 126 of the Evidence Act 1995, which, on the facts, it is not.

Court Disposition

Subpoena set aside; plaintiff to pay costs of the motion.

Orders

  • ['The subpoena is set aside.' "The plaintiff will pay the defendant's costs of the motion concerning the subpoena."]