NRMA Ltd & Ors v Morgan & Ors (No 2) [1999] NSWSC 694

NRMA Ltd & Ors v Morgan & Ors (No 2) [1999] NSWSC 694

Disclosure in Mr Kennedy's affidavit of what counsel advised was sufficient to lose privilege as to the substance of those communications, but merely stating that counsel had been instructed did not suffice. Therefore, privilege was lost regarding documents recording or referring to the advice (para 2), but not those merely referring to instructions (para 1).

Jurisdiction
Australia
Judgment Date
25 June 1999
Procedural Posture
Commercial Proceedings With Interlocutory Applications / Interlocutory Decision on Privilege and Access to Documents
Outcome
Access to documents referred to in paragraph 1 denied; access to documents in paragraph 2 granted to the extent indicated, excluding masked portions.
Legal Topics
['client Legal Privilege' 'disclosure' 'waiver of Privilege']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'disclosure' 'waiver of Privilege']

Case Brief

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Procedural Posture

Commercial Proceedings With Interlocutory Applications / Interlocutory Decision on Privilege and Access to Documents

Legal Issues

  1. 1 ['Whether client legal privilege over documents was lost by disclosure within an affidavit under s 122(2) of the Evidence Act 1995' 'Scope of disclosure sufficient to effect waiver of privilege']

Ratio Decidendi

Disclosure in Mr Kennedy's affidavit of what counsel advised was sufficient to lose privilege as to the substance of those communications, but merely stating that counsel had been instructed did not suffice. Therefore, privilege was lost regarding documents recording or referring to the advice (para 2), but not those merely referring to instructions (para 1).

Court Disposition

Access to documents referred to in paragraph 1 denied; access to documents in paragraph 2 granted to the extent indicated, excluding masked portions.

Orders

  • ['Access granted to documents referred to in paragraph 2 of the notice to produce/subpoena, as indicated and excluding masked portions.' 'Access to documents referred to in paragraph 1 is refused.']