Desjardins v Smith [2024] NSWSC 540

Desjardins v Smith [2024] NSWSC 540

The plaintiff's positive assertions about her state of knowledge regarding discoverability of her cause of action are inconsistent with her objection to producing privileged communications with Maurice Blackburn, thereby giving rise to waiver of privilege and justifying the Notice to Produce. The Notice to Produce is not oppressive, has legitimate forensic purpose, and is sufficiently particularised.

Jurisdiction
Australia
Judgment Date
09 May 2024
Procedural Posture
Notice of Motion / Interlocutory (application to Set Aside Notice to Produce)
Outcome
Plaintiff's Notice of Motion dismissed; costs awarded against plaintiff.
Legal Topics
['notice to Produce' 'abuse of Process' 'client Legal Privilege' 'limitation Period']
['civil Procedure'] ['notice to Produce' 'abuse of Process' 'client Legal Privilege' 'limitation Period']

Case Brief

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Procedural Posture

Notice of Motion / Interlocutory (application to Set Aside Notice to Produce)

Legal Issues

  1. 1 ['Is the Notice to Produce oppressive or an abuse of process?' 'Is there a legitimate forensic purpose for the Notice to Produce?' 'Has the plaintiff waived client legal privilege by her conduct?' 'Is the Notice to Produce sufficiently particularised?' 'Does the Notice to Produce comply with UCPR r 34.1?']

Ratio Decidendi

The plaintiff's positive assertions about her state of knowledge regarding discoverability of her cause of action are inconsistent with her objection to producing privileged communications with Maurice Blackburn, thereby giving rise to waiver of privilege and justifying the Notice to Produce. The Notice to Produce is not oppressive, has legitimate forensic purpose, and is sufficiently particularised.

Court Disposition

Plaintiff's Notice of Motion dismissed; costs awarded against plaintiff.

Orders

  • ["The plaintiff's Notice of Motion dated 15 March 2024 to set aside the Notice to Produce dated 14 March 2024 is dismissed." 'The plaintiff is to produce to the Court on the first day of the hearing any documents in answer to the Notice to Produce, as to item 1 (as narrowed) and item 3 (as amended).' "The plaintiff...