TransGrid v Members of Lloyds Syndicate 3210 [2011] NSWSC 301

TransGrid v Members of Lloyds Syndicate 3210 [2011] NSWSC 301

Connell Wagner acted as TransGrid's agent for the purpose of receiving legal advice from Doyles Construction Lawyers. Accordingly, the communications remained privileged. Provision of those documents to Connell Wagner did not amount to waiver of privilege; the dominant purpose was to provide legal advice to TransGrid, and Connell Wagner's role was solely to assist TransGrid. Therefore, the documents in question were properly the subject of client legal privilege and should not be made available to URS.

Parties
Plaintiff: TransGrid; Fourteenth Defendant: URS Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
13 April 2011
Procedural Posture
Notice of Motion / Interlocutory Application for Privilege Ruling
Outcome
Application granted; privilege upheld; costs ordered against URS.
Legal Topics
Client Legal Privilege, Agency and Privilege, Production of Documents in Answer to Subpoena, Applicability of Evidence Act to Interlocutory Privilege Disputes
Evidence Civil Procedure Construction Law Client Legal Privilege Agency and Privilege Production of Documents in Answer to Subpoena Applicability of Evidence Act to Interlocutory Privilege Disputes

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Parties

TransGrid

Plaintiff

URS Australia Pty Ltd

Fourteenth Defendant

Procedural Posture

Notice of Motion / Interlocutory Application for Privilege Ruling

Legal Issues

  1. 1 Whether a consultant is an agent for the purposes of client legal privilege under Evidence Act 1995 s 118
  2. 2 Whether documents produced in answer to a subpoena are subject to client legal privilege
  3. 3 Applicability of the Evidence Act 1995 vs common law or Uniform Civil Procedure Rules to privilege claims

Ratio Decidendi

Connell Wagner acted as TransGrid's agent for the purpose of receiving legal advice from Doyles Construction Lawyers. Accordingly, the communications remained privileged. Provision of those documents to Connell Wagner did not amount to waiver of privilege; the dominant purpose was to provide legal advice to TransGrid, and Connell Wagner's role was solely to assist TransGrid. Therefore, the documents in question were properly the subject of client legal privilege and should not be made available to URS.

Court Disposition

Application granted; privilege upheld; costs ordered against URS.

Orders

  • Order in terms of paragraph 1 of the notice of motion preventing URS Australia Pty Ltd from obtaining access to the documents produced by Aurecon Australia Pty Ltd in response to URS's subpoena.
  • URS Australia Pty Ltd to pay TransGrid's costs of the motion.