National Australia Bank Ltd v C & O Voukidis Pty Ltd (No. 2) [2015] NSWSC 258

National Australia Bank Ltd v C & O Voukidis Pty Ltd (No. 2) [2015] NSWSC 258

Privilege was not waived. The affidavit was served for the limited purpose of an interlocutory application to amend pleadings, was not read or relied on, and the proposed issues to which the asserted absence of advice related were no longer issues in the proceedings. In those circumstances, maintaining privilege was not inconsistent with the Fourth Defendant's conduct, and any general unfairness in denying the Plaintiff documents for credit cross-examination did not establish the required inconsistency between the issue to be determined and maintenance of privilege.

Jurisdiction
Australia
Judgment Date
20 March 2015
Procedural Posture
Procedural and Other Ruling Concerning Access to Subpoenaed Material and Client Legal Privilege / Plaintiff's Application for Access to Material Produced in Answer to Subpoena Issued to Carneys Lawyers
Outcome
Plaintiff's application dismissed; privilege not waived.
Legal Topics
['client Legal Privilege' 'waiver of Privilege' 'subpoena for Production' 'confidential Solicitor Client Communications' 'credibility Evidence' 'interlocutory Application to Amend Pleadings']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'waiver of Privilege' 'subpoena for Production' 'confidential Solicitor Client Communications' 'credibility Evidence' 'interlocutory Application to Amend Pleadings']

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Procedural Posture

Procedural and Other Ruling Concerning Access to Subpoenaed Material and Client Legal Privilege / Plaintiff's Application for Access to Material Produced in Answer to Subpoena Issued to Carneys Lawyers

Legal Issues

  1. 1 ['Whether the Fourth Defendant waived client legal privilege over material produced by Carneys Lawyers in answer to subpoena by serving an affidavit referring to advice not received from her former solicitors.' 'Whether the fact that the affidavit was served, but not read or relied on at the interlocutory hearing, was sufficient to waive privilege.' "Whether subpoenaed documents could be accessed where their apparent use was to challenge the Fourth Defendant's credit and the substantive issues referred to in the affidavit were no longer issues for trial."]

Ratio Decidendi

Privilege was not waived. The affidavit was served for the limited purpose of an interlocutory application to amend pleadings, was not read or relied on, and the proposed issues to which the asserted absence of advice related were no longer issues in the proceedings. In those circumstances, maintaining privilege was not inconsistent with the Fourth Defendant's conduct, and any general unfairness in denying the Plaintiff documents for credit cross-examination did not establish the required inconsistency between the issue to be determined and maintenance of privilege.

Court Disposition

Plaintiff's application dismissed; privilege not waived.

Orders

  • ["Dismiss the Plaintiff's application for access to the material produced in answer to the subpoena issued to Carneys Lawyers on 14 November 2014." "The Plaintiff is to pay the Fourth Defendant's costs of the application."]