Shaw v Oakdale Junior Motorcycle Club Inc [2017] NSWSC 822

Shaw v Oakdale Junior Motorcycle Club Inc [2017] NSWSC 822

Given that the limitation issue was advanced by evidentiary statements asserting that, before discussions with solicitors on or about 5 August 2015, neither Mr Shaw nor his father knew of any entitlement to compensation, the issue depended on the character and timing of legal advice. Maintaining privilege over the disputed costs agreements and file notes was inconsistent with the pleadings and evidence served about when the requisite knowledge was acquired. Privilege was therefore waived and the orders sought to set aside the subpoena or prevent inspection were refused.

Jurisdiction
Australia
Judgment Date
23 June 2017
Procedural Posture
Personal Injury Negligence Proceedings Involving a Subpoena for Production and Legal Professional Privilege Claim / Motion Seeking Orders Setting Aside a Subpoena for Production Issued to the Plaintiff's Solicitors
Outcome
Orders sought refused; costs of the motion reserved.
Legal Topics
['subpoena for Production' 'legal Professional Privilege' 'implied Waiver of Privilege' 'personal Injury Limitation Period' 'discoverability of Cause of Action']
['civil Procedure' 'evidence' 'torts' 'limitation of Actions'] ['subpoena for Production' 'legal Professional Privilege' 'implied Waiver of Privilege' 'personal Injury Limitation Period' 'discoverability of Cause of Action']

Case Brief

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Procedural Posture

Personal Injury Negligence Proceedings Involving a Subpoena for Production and Legal Professional Privilege Claim / Motion Seeking Orders Setting Aside a Subpoena for Production Issued to the Plaintiff's Solicitors

Legal Issues

  1. 1 ['Whether legal professional privilege attached to costs agreements and file notes produced to the Court.' 'Whether the plaintiff waived legal professional privilege by advancing a case, through pleadings and evidentiary statements, about when he and his father first became aware of an entitlement to compensation.' 'Whether the subpoenaed documents were relevant to the pleaded limitation defence concerning when the cause of action was discoverable.' 'Whether determination of the waiver question should be deferred until trial.']

Ratio Decidendi

Given that the limitation issue was advanced by evidentiary statements asserting that, before discussions with solicitors on or about 5 August 2015, neither Mr Shaw nor his father knew of any entitlement to compensation, the issue depended on the character and timing of legal advice. Maintaining privilege over the disputed costs agreements and file notes was inconsistent with the pleadings and evidence served about when the requisite knowledge was acquired. Privilege was therefore waived and the orders sought to set aside the subpoena or prevent inspection were refused.

Court Disposition

Orders sought refused; costs of the motion reserved.

Orders

  • ['The orders which Mr Shaw presses are refused.' 'Costs of the motion are reserved.']