Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070

Although earlier alleged occasions did not destroy NGC's privilege because they involved confidential communication, disclosure by persons other than NGC, absence of NGC's consent, no relevant disclosure of substance, or documents not including the Hiroyuki Narui Statement, privilege was lost when police produced the statement to the Supreme Court on NGC's subpoena and NGC, knowing the statement was among the documents and that access could be prevented by objection, consciously took no step to object to the plaintiffs' access. That inaction amounted to at least implied consent to disclosure to Tim Barr Pty Ltd under s 122(4), so s 119 did not prevent tender of the statement.

Jurisdiction
Australia
Judgment Date
13 October 2008
Procedural Posture
Procedural and Other Ruling on Evidence Admissibility / Voir Dire Concerning Whether Client Legal Privilege in the Hiroyuki Narui Statement Had Been Lost
Outcome
Ruling for the plaintiffs on admissibility of the Hiroyuki Narui Statement.
Legal Topics
['client Legal Privilege' 'loss of Privilege' 'consent and Implied Consent' 'disclosure' 'admissibility of Evidence' 'subpoenas and Access to Documents']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'loss of Privilege' 'consent and Implied Consent' 'disclosure' 'admissibility of Evidence' 'subpoenas and Access to Documents']

Case Brief

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Procedural Posture

Procedural and Other Ruling on Evidence Admissibility / Voir Dire Concerning Whether Client Legal Privilege in the Hiroyuki Narui Statement Had Been Lost

Legal Issues

  1. 1 ['Whether the Hiroyuki Narui Statement was protected by client legal privilege under s 119 of the Evidence Act 1995.' 'Whether privilege was lost under s 122(2) or s 122(4) of the Evidence Act 1995 by any of nine alleged occasions of waiver or disclosure.' 'Whether the word "disclosed" in s 122(2) and s 122(4) includes communication of material already known to the recipient.' 'Whether subsequent conduct can constitute consent to disclosure for the purposes of s 122(4).' "Whether NGC's failure to object to access to subpoenaed police documents in these proceedings amounted to implied consent to disclosure to Tim Barr Pty Ltd."]

Ratio Decidendi

Although earlier alleged occasions did not destroy NGC's privilege because they involved confidential communication, disclosure by persons other than NGC, absence of NGC's consent, no relevant disclosure of substance, or documents not including the Hiroyuki Narui Statement, privilege was lost when police produced the statement to the Supreme Court on NGC's subpoena and NGC, knowing the statement was among the documents and that access could be prevented by objection, consciously took no step to object to the plaintiffs' access. That inaction amounted to at least implied consent to disclosure to Tim Barr Pty Ltd under s 122(4), so s 119 did not prevent tender of the statement.

Court Disposition

Ruling for the plaintiffs on admissibility of the Hiroyuki Narui Statement.

Orders

  • ['Section 119 of the Evidence Act 1995 does not operate to prevent the adducing of evidence by means of the tender of the Hiroyuki Narui Statement.']