The Owners Strata Plan 87265 v Saaib [2020] NSWSC 21

The Owners Strata Plan 87265 v Saaib [2020] NSWSC 21

The email communications were privileged because the affidavit evidence of Mr Stirton established that the communications between Mills Oakley and Ms Alexandrova were for the dominant purpose of the Owners Corporation obtaining professional legal services relating to proceedings in which it was a party, namely obtaining evidence to be used against Mr Saaib. Although Ms Alexandrova was a defendant in contingent related proceedings, in the proceeding against Mr Saaib she was a witness for the Owners Corporation, and the communications concerned that capacity. In those circumstances an implied obligation not to disclose the contents of the communications to Mr Saaib arose, satisfying the...

Jurisdiction
Australia
Judgment Date
30 January 2020
Procedural Posture
Civil Procedure Ruling in Equity Proceedings Concerning Notice to Produce and Client Legal Privilege / Notice of Motion by Mr Saaib Filed 20 January 2020 Seeking Production to the Court and Permission to Inspect and Copy Communications Caught by Paragraph 3 of His Notice to Produce of 20 December 2019
Outcome
Owners Corporation's claim of client legal privilege upheld; Mr Saaib's application to inspect and copy the communications refused.
Legal Topics
['notices to Produce' 'client Legal Privilege' 'evidence Act 1995 (nsw) S 119' 'confidential Communications' 'dominant Purpose of Obtaining Evidence' 'communications With Witness Who Is Also Defendant in Contingent Proceedings']
['civil Procedure' 'evidence' 'equity'] ['notices to Produce' 'client Legal Privilege' 'evidence Act 1995 (nsw) S 119' 'confidential Communications' 'dominant Purpose of Obtaining Evidence' 'communications With Witness Who Is Also Defendant in Contingent Proceedings']

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Procedural Posture

Civil Procedure Ruling in Equity Proceedings Concerning Notice to Produce and Client Legal Privilege / Notice of Motion by Mr Saaib Filed 20 January 2020 Seeking Production to the Court and Permission to Inspect and Copy Communications Caught by Paragraph 3 of His Notice to Produce of 20 December 2019

Legal Issues

  1. 1 ['Whether email communications between Mills Oakley and Ms Alexandrova between 17 September 2019 and 17 December 2019 were privileged under ss 119 and 131A of the Evidence Act 1995 (NSW).' 'Whether the communications were confidential communications within s 117(1) of the Evidence Act 1995 (NSW), notwithstanding that Ms Alexandrova was a defendant in related contingent proceedings brought by the Owners Corporation.' "Whether an implied obligation of non-disclosure arose where the communications were for the dominant purpose of obtaining Ms Alexandrova's affidavit evidence for use against Mr Saaib."]

Ratio Decidendi

The email communications were privileged because the affidavit evidence of Mr Stirton established that the communications between Mills Oakley and Ms Alexandrova were for the dominant purpose of the Owners Corporation obtaining professional legal services relating to proceedings in which it was a party, namely obtaining evidence to be used against Mr Saaib. Although Ms Alexandrova was a defendant in contingent related proceedings, in the proceeding against Mr Saaib she was a witness for the Owners Corporation, and the communications concerned that capacity. In those circumstances an implied obligation not to disclose the contents of the communications to Mr Saaib arose, satisfying the...

Court Disposition

Owners Corporation's claim of client legal privilege upheld; Mr Saaib's application to inspect and copy the communications refused.

Orders

  • ["Uphold the claim by the Owners Corporation of client legal privilege in respect of the email communications caught by paragraph 3 of Mr Saaib's Notice to Produce of 20 December 2019." "Mr Saaib's application to be permitted to inspect and copy the same is refused."]