Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 763

Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 763

The plaintiff has prima facie established that, subject to waiver, documents in categories identified by Mr Radosavljevic are protected by legal professional privilege. Privilege has been waived in respect of: (i) documents revealing the terms of the initial complaint (already produced as MFI P 18), (ii) documents in categories (a)-(c) of the privileged schedule (items 1–54), and (iii) certain specific documents referenced in annexures to affidavits. The question of waiver over further documents depends on defendants' inspection of the above and any resulting application. The privilege is not abrogated by mere court discretion and extends to communications with foreign lawyers.

Jurisdiction
Australia
Judgment Date
10 August 2009
Procedural Posture
Civil / Interlocutory/procedural Application Regarding Legal Professional Privilege (pre Trial Inspection, Waiver)
Outcome
Partial waiver of legal professional privilege ordered in respect of specific documents; otherwise, privilege upheld subject to further application or inspection.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'notices to Produce' 'application of Evidence Act 1995' 'pre Trial Inspection of Documents' 'onus of Privilege']
['practice and Procedure' 'evidence' 'equity'] ['legal Professional Privilege' 'waiver of Privilege' 'notices to Produce' 'application of Evidence Act 1995' 'pre Trial Inspection of Documents' 'onus of Privilege']

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Procedural Posture

Civil / Interlocutory/procedural Application Regarding Legal Professional Privilege (pre Trial Inspection, Waiver)

Legal Issues

  1. 1 ['Whether legal professional privilege applies to communications between the plaintiff and its legal advisers (including foreign lawyers) regarding the Swiss criminal complaint and related civil claims.' 'Whether privilege has been waived in respect of certain documents following production or reference to them.' 'Whether further documents should be produced for inspection by the court or defendants in light of alleged abuse of process and waiver.']

Ratio Decidendi

The plaintiff has prima facie established that, subject to waiver, documents in categories identified by Mr Radosavljevic are protected by legal professional privilege. Privilege has been waived in respect of: (i) documents revealing the terms of the initial complaint (already produced as MFI P 18), (ii) documents in categories (a)-(c) of the privileged schedule (items 1–54), and (iii) certain specific documents referenced in annexures to affidavits. The question of waiver over further documents depends on defendants' inspection of the above and any resulting application. The privilege is not abrogated by mere court discretion and extends to communications with foreign lawyers.

Court Disposition

Partial waiver of legal professional privilege ordered in respect of specific documents; otherwise, privilege upheld subject to further application or inspection.

Orders

  • ["The plaintiff is ordered to produce: (i) any documents revealing the terms of the first initial Swiss complaint (already produced as MFI P 18); (ii) documents in categories (a), (b), and (c) of the privileged schedule (items 1–54); (iii) documents (and attachments) described in boxes 66, 134, and 162 of annexure C...