Attwells v White (No 2) [2021] NSWSC 135

Attwells v White (No 2) [2021] NSWSC 135

The chronology of the proceedings, the timing of the insurer communication and the solicitor's evidence established on the balance of probabilities that the 14 June 2018 communication was a confidential communication prepared for the dominant purpose of obtaining professional legal services in relation to the proceeding. The solicitor's evidence also established that the redacted email portions concerned privileged communications and privilege had not been waived. Because the second defendant succeeded on the privilege dispute, there was no reason to depart from the rule that costs follow the event.

Jurisdiction
Australia
Judgment Date
23 February 2021
Procedural Posture
Procedural Ruling on Notice to Produce and Claims for Client Legal Privilege / Hearing on Privilege Claims and Costs
Outcome
Second defendant's claims for privilege upheld; plaintiff ordered to pay the second defendant's costs of the hearing on 23 February 2021.
Legal Topics
['client Legal Privilege' 'litigation Privilege' 'notice to Produce' 'redaction of Documents' 'costs Follow the Event']
['evidence' 'civil Procedure' 'costs'] ['client Legal Privilege' 'litigation Privilege' 'notice to Produce' 'redaction of Documents' 'costs Follow the Event']

Case Brief

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Procedural Posture

Procedural Ruling on Notice to Produce and Claims for Client Legal Privilege / Hearing on Privilege Claims and Costs

Legal Issues

  1. 1 ['Whether the second defendant established privilege under s 119 of the Evidence Act 1995 (NSW) over the letter dated 14 June 2018 between the second defendant and his insurer.' 'Whether redacted portions of emails dated 10 May 2018, 20 May 2018 and 21 May 2018 were privileged and need not be produced in unredacted form.' "Whether the plaintiff should pay the second defendant's costs of the hearing."]

Ratio Decidendi

The chronology of the proceedings, the timing of the insurer communication and the solicitor's evidence established on the balance of probabilities that the 14 June 2018 communication was a confidential communication prepared for the dominant purpose of obtaining professional legal services in relation to the proceeding. The solicitor's evidence also established that the redacted email portions concerned privileged communications and privilege had not been waived. Because the second defendant succeeded on the privilege dispute, there was no reason to depart from the rule that costs follow the event.

Court Disposition

Second defendant's claims for privilege upheld; plaintiff ordered to pay the second defendant's costs of the hearing on 23 February 2021.

Orders

  • ['Rule that the second defendant has established his claim for privilege under s 119 of the Evidence Act 1995 (NSW) in relation to the letter dated 14 June 2018 between the second defendant and his insurer.' 'Rule that the second defendant has established his claim for privilege under s 119 of the Evidence Act 1995...