NZC [2017] NSWCATGD 38

NZC [2017] NSWCATGD 38

The medicolegal report obtained from Dr Z was prepared on instructions from Mrs NZC’s solicitor for the dominant purpose of providing legal services—specifically, for use in the current NCAT Guardianship Division proceedings. Litigation privilege applies to the report, and the relevant statutes do not abrogate that privilege. There has been no waiver. Accordingly, Mr DAC is not entitled to access the report.

Parties
The Person: Mrs NZC; Applicant: Mr DAC; Attorney: Ms TBD; Interested Party: The NSW Trustee and Guardian; Interested Party: The NSW Public Guardian
Jurisdiction
Australia
Judgment Date
13 December 2017
Procedural Posture
Guardianship and Financial Management Application / Interlocutory Decision on Access to Evidentiary Report (litigation Privilege Claim)
Outcome
Application to access Dr Z’s report refused on ground of litigation privilege.
Legal Topics
Legal Professional Privilege, Litigation Privilege, Statutory Interpretation, Protected Confidences, NCAT Procedure
Guardianship Law Civil Procedure Evidence Legal Professional Privilege Litigation Privilege Statutory Interpretation Protected Confidences NCAT Procedure

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Parties

Mrs NZC

The Person

Mr DAC

Applicant

Ms TBD

Attorney

The NSW Trustee and Guardian

Interested Party

The NSW Public Guardian

Interested Party

Procedural Posture

Guardianship and Financial Management Application / Interlocutory Decision on Access to Evidentiary Report (litigation Privilege Claim)

Legal Issues

  1. 1 Does legal professional privilege (litigation privilege) apply to a report prepared for current legal proceedings before the Tribunal?
  2. 2 Is legal professional privilege ousted in NCAT Guardianship Division proceedings by statute?
  3. 3 Was privilege over the report waived?

Ratio Decidendi

The medicolegal report obtained from Dr Z was prepared on instructions from Mrs NZC’s solicitor for the dominant purpose of providing legal services—specifically, for use in the current NCAT Guardianship Division proceedings. Litigation privilege applies to the report, and the relevant statutes do not abrogate that privilege. There has been no waiver. Accordingly, Mr DAC is not entitled to access the report.

Court Disposition

Application to access Dr Z’s report refused on ground of litigation privilege.

Orders

  • All parties to give to the Tribunal and all other parties and the separate representative for the person (if any), the material they rely upon by 31 January 2018.
  • All parties to give to the Tribunal and all other parties and the separate representative for the person (if any), the material in reply by 7 February 2018.