Timothy Mills v Walter Wojcech [2011] NSWSC 86

Timothy Mills v Walter Wojcech [2011] NSWSC 86

There was no voluntary waiver of privilege over the documents by the plaintiff or his current solicitors; production by a former solicitor under subpoena without claim of privilege and without notice to the plaintiff's side did not result in loss of privilege, as there was no inconsistent conduct or voluntary disclosure. The recipient of the documents should have realised privilege was likely and acted accordingly. Privilege is maintained and the documents must be returned.

Jurisdiction
Australia
Judgment Date
17 February 2011
Procedural Posture
Motion / Interlocutory Application Regarding Claim of Legal Professional Privilege Over Subpoenaed Documents
Outcome
Declaration that privilege attaches to the relevant documents and orders for their return to the court; costs in the proceedings.
Legal Topics
['client Legal Privilege' 'loss and Waiver of Privilege' 'subpoena Compliance' 'return of Privileged Documents']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'loss and Waiver of Privilege' 'subpoena Compliance' 'return of Privileged Documents']

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Procedural Posture

Motion / Interlocutory Application Regarding Claim of Legal Professional Privilege Over Subpoenaed Documents

Legal Issues

  1. 1 ['Whether documents produced on subpoena by a third party without claim of privilege remain privileged' 'Whether privilege was waived or lost by the failure to claim at time of production' 'Whether the party claiming privilege acted inconsistently with asserting privilege' 'Whether the Court should exercise discretion to order return/destruction of documents']

Ratio Decidendi

There was no voluntary waiver of privilege over the documents by the plaintiff or his current solicitors; production by a former solicitor under subpoena without claim of privilege and without notice to the plaintiff's side did not result in loss of privilege, as there was no inconsistent conduct or voluntary disclosure. The recipient of the documents should have realised privilege was likely and acted accordingly. Privilege is maintained and the documents must be returned.

Court Disposition

Declaration that privilege attaches to the relevant documents and orders for their return to the court; costs in the proceedings.

Orders

  • ['Declare that the notes and memorandum made by Mr Wubbeling, and any other document recording the relevant conferences, are subject to client legal privilege and constitute confidential communications for the dominant purpose of legal advice to the plaintiff.' 'Order that the defendant and cross-defendant return to...