Sharjade Pty Ltd v Darwinia Estate Pty Ltd [2008] NSWSC 569

Sharjade Pty Ltd v Darwinia Estate Pty Ltd [2008] NSWSC 569

The Commonwealth's solicitor had tied non-waiver of privilege to a confidentiality regime limiting inspection of produced documents to legal representatives. After further time to consider the documents, the Commonwealth consented to an order releasing that restriction. That consent was wholly inconsistent with maintaining the claim that privilege had not been waived, so any privilege attaching to the documents was waived on 4 May 2006 and the plaintiff could use the documents at trial.

Jurisdiction
Australia
Judgment Date
11 June 2008
Procedural Posture
Equity Division Commercial List Proceeding Involving Claims for Damages for Alleged Breach of Contract and Alleged Knowing Inducement of Breach of Contract / Pre Trial Issue Concerning Whether Documents Produced in Answer to a Notice to Produce Could Be Used at Trial
Outcome
Plaintiff entitled to use documents at trial.
Legal Topics
['legal Professional Privilege' 'waiver' 'notice to Produce' 'confidential Inspection' 'use of Documents at Trial']
['civil Procedure' 'evidence' 'privilege'] ['legal Professional Privilege' 'waiver' 'notice to Produce' 'confidential Inspection' 'use of Documents at Trial']

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Procedural Posture

Equity Division Commercial List Proceeding Involving Claims for Damages for Alleged Breach of Contract and Alleged Knowing Inducement of Breach of Contract / Pre Trial Issue Concerning Whether Documents Produced in Answer to a Notice to Produce Could Be Used at Trial

Legal Issues

  1. 1 ['Whether the Commonwealth waived any legal professional privilege in documents produced to the plaintiff in answer to a Notice to Produce.' 'Whether the plaintiff was entitled to use the documents at the trial commencing on 7 July 2008.']

Ratio Decidendi

The Commonwealth's solicitor had tied non-waiver of privilege to a confidentiality regime limiting inspection of produced documents to legal representatives. After further time to consider the documents, the Commonwealth consented to an order releasing that restriction. That consent was wholly inconsistent with maintaining the claim that privilege had not been waived, so any privilege attaching to the documents was waived on 4 May 2006 and the plaintiff could use the documents at trial.

Court Disposition

Plaintiff entitled to use documents at trial.

Orders

  • ['The documents that were provided to the plaintiff which are the subject of a claim for privilege in HCF-2 are able to be used by the plaintiff in the trial commencing on 7 July 2008.']