Smits v Della Marta & Ors [2011] NSWSC 1299

Smits v Della Marta & Ors [2011] NSWSC 1299

The plaintiff's claim for privilege over certain documents was upheld as relevance does not override privilege, defendants are obliged to comply specifically with discovery requirements without global claims, the Court cannot override a third party's privilege unless they are joined, and further discovery is only ordered where sufficient specificity and evidence of existence is supplied.

Parties
Plaintiff: Leonardus Geradus Smits; First Defendant: Simon Eugene Della Marta; Second Defendant: Christopher Mark Dawson; Third Defendant: Armando John Gardiman; Fourth Defendant: Terrence Louis Goldberg; Fifth Defendant: Thady Arnold Andrew Blundell; Sixth Defendant: Peter Richard Tyson
Jurisdiction
Australia
Judgment Date
25 October 2011
Procedural Posture
Civil / Interlocutory Application Regarding Discovery and Privilege
Outcome
Plaintiff and defendants to serve supplementary lists of documents; both motions otherwise dismissed; no order as to costs.
Legal Topics
Client Legal Privilege, Discovery, Obligations Under Uniform Civil Procedure Rules, Privileged Communications, Mitigation of Loss
Civil Procedure Equity Client Legal Privilege Discovery Obligations Under Uniform Civil Procedure Rules Privileged Communications Mitigation of Loss

Case Brief

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Parties

Leonardus Geradus Smits

Plaintiff

Simon Eugene Della Marta

First Defendant

Christopher Mark Dawson

Second Defendant

Armando John Gardiman

Third Defendant

Terrence Louis Goldberg

Fourth Defendant

Thady Arnold Andrew Blundell

Fifth Defendant

Peter Richard Tyson

Sixth Defendant

Procedural Posture

Civil / Interlocutory Application Regarding Discovery and Privilege

Legal Issues

  1. 1 Whether plaintiff's claim of privilege for certain documents is valid
  2. 2 Whether defendants have complied with discovery obligations regarding the Turner Freeman file and trust account records
  3. 3 Whether plaintiff's discovery was inadequate and whether further discovery should be ordered

Ratio Decidendi

The plaintiff's claim for privilege over certain documents was upheld as relevance does not override privilege, defendants are obliged to comply specifically with discovery requirements without global claims, the Court cannot override a third party's privilege unless they are joined, and further discovery is only ordered where sufficient specificity and evidence of existence is supplied.

Court Disposition

Plaintiff and defendants to serve supplementary lists of documents; both motions otherwise dismissed; no order as to costs.

Orders

  • Defendants to serve supplementary list of documents by 22 November 2011 complying with UCPR, r 21.3, in respect of plaintiff's categories for discovery dated 26 May 2010 regarding individual documents and 'trust records'.
  • Plaintiff to serve supplementary list of documents by 15 November 2011 within defendants' categories for discovery dated 12 May 2010 regarding mitigation and documents with solicitor.