JM v Trustees of the Marist Brothers [2024] NSWSC 1446

JM v Trustees of the Marist Brothers [2024] NSWSC 1446

Privilege over the plaintiff's legal file was lost by reason of inconsistency between the plaintiff's conduct (filing and reliance on affidavits asserting content of legal advice) and the maintenance of privilege, pursuant to ss 122 and 131A of the Evidence Act 1995 (NSW).

Parties
Plaintiff/respondent: JM; Defendant/applicant: Trustees of the Marist Brothers
Jurisdiction
Australia
Judgment Date
12 November 2024
Procedural Posture
Civil / Interlocutory Motion (access to Subpoenaed Documents)
Outcome
Application granted; privilege over legal file lost; defendant and its lawyers given access to file produced on subpoena.
Legal Topics
Legal Professional Privilege, Issue Waiver, Litigation Privilege, Child Abuse Settlements, Setting Aside Settlement Agreements, Statutory Reforms
Civil Law Evidence Remedial Legislation Legal Professional Privilege Issue Waiver Litigation Privilege Child Abuse Settlements Setting Aside Settlement Agreements +1 more

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Parties

JM

Plaintiff/respondent

Trustees of the Marist Brothers

Defendant/applicant

Procedural Posture

Civil / Interlocutory Motion (access to Subpoenaed Documents)

Legal Issues

  1. 1 Whether privilege over the plaintiff's legal file has been lost or waived so as to permit access by the defendant
  2. 2 Whether plaintiff's conduct is inconsistent with maintenance of privilege under Evidence Act 1995 (NSW) s 122
  3. 3 Application of statutory provisions to access documents produced under subpoena

Ratio Decidendi

Privilege over the plaintiff's legal file was lost by reason of inconsistency between the plaintiff's conduct (filing and reliance on affidavits asserting content of legal advice) and the maintenance of privilege, pursuant to ss 122 and 131A of the Evidence Act 1995 (NSW).

Court Disposition

Application granted; privilege over legal file lost; defendant and its lawyers given access to file produced on subpoena.

Orders

  • Access to the file produced on subpoena be granted to the defendant and its lawyers.
  • First access be granted to the plaintiff with the expectation that the defendant's counsel and solicitor be provided access by 4pm Thursday, 14 November 2024.