Barry v James Hardie [2001] NSWDDT 12

Barry v James Hardie [2001] NSWDDT 12

The plaintiff's affidavit disclosed the substance of Mr Fowlie's advice, and page 1 of Mr Fowlie's letter headed 'Your Instructions' was necessary to understand the disclosed advice because the advice was expressed to be based on the plaintiff's current instructions. However, the affidavit did not disclose the substance of the plaintiff's original instructions to Shine Roche McGowan, the additional instructions recorded by Mr Fowlie, or the retainer and fee documents. Section 126 did not require production of MFI 2 or MFI 5 because the 'Your Instructions' section of MFI 3 gave sufficient information to enable a proper understanding of Mr Fowlie's advice.

Jurisdiction
Australia
Judgment Date
07 February 2001
Procedural Posture
Dust Diseases Personal Injury Proceedings Concerning Asbestos Exposure and Lung Cancer / Ex Tempore Interlocutory Ruling During Trial on the Second Defendant's Call for Access to Documents Produced as Mfis 2, 3, 4 and 5
Outcome
The second defendant's call for access to documents was allowed in part and refused in part.
Legal Topics
['client Legal Privilege' 'waiver of Privilege' 'production of Documents' 'adducing Evidence of Confidential Communications' 'proper Understanding of Disclosed Communications' 'limitation Period Knowledge']
['evidence' 'civil Procedure' 'legal Professional Privilege' 'dust Diseases Litigation'] ['client Legal Privilege' 'waiver of Privilege' 'production of Documents' 'adducing Evidence of Confidential Communications' 'proper Understanding of Disclosed Communications' 'limitation Period Knowledge']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Dust Diseases Personal Injury Proceedings Concerning Asbestos Exposure and Lung Cancer / Ex Tempore Interlocutory Ruling During Trial on the Second Defendant's Call for Access to Documents Produced as Mfis 2, 3, 4 and 5

Legal Issues

  1. 1 ['Whether the plaintiff had waived legal professional privilege under s 122(2) of the Evidence Act 1995 by disclosing the substance of privileged communications in paragraphs 286 to 289 of his affidavit.' 'Whether the second defendant was entitled to access to MFI 2, MFI 3, MFI 4 and MFI 5 pursuant to its call for documents.' 'Whether s 126 of the Evidence Act 1995 required access to MFI 2 or MFI 5 to enable a proper understanding of the portions of MFI 3 to which access was allowed.']

Ratio Decidendi

The plaintiff's affidavit disclosed the substance of Mr Fowlie's advice, and page 1 of Mr Fowlie's letter headed 'Your Instructions' was necessary to understand the disclosed advice because the advice was expressed to be based on the plaintiff's current instructions. However, the affidavit did not disclose the substance of the plaintiff's original instructions to Shine Roche McGowan, the additional instructions recorded by Mr Fowlie, or the retainer and fee documents. Section 126 did not require production of MFI 2 or MFI 5 because the 'Your Instructions' section of MFI 3 gave sufficient information to enable a proper understanding of Mr Fowlie's advice.

Court Disposition

The second defendant's call for access to documents was allowed in part and refused in part.

Orders

  • ["The second defendant was entitled to access to page 1 of Mr Fowlie's letter to the plaintiff, part of MFI 3, together with the disclosed filleted advice section." "The second defendant was not entitled to the remainder of Mr Fowlie's letter in MFI 3 from the heading 'Retaining Slater and Gordon' to the end of the...