Hunt Leather Pty Ltd v Transport for NSW [2022] NSWSC 1547

Hunt Leather Pty Ltd v Transport for NSW [2022] NSWSC 1547

Although the disputed categories of documents may have had a legitimate forensic purpose for meeting the plaintiffs' novel claim for litigation funding costs as damages, the documents were treated as privileged and the plaintiffs had not waived privilege. Their affidavit evidence did not disclose the substance or contents of confidential communications, did not make express or implied assertions about those contents, and was not conduct inconsistent with maintaining privilege under s 122(2) or s 122(3)(a) of the Evidence Act 1995 (NSW). Withdrawal of the affidavit passages would not have restored the prior position, but no waiver had occurred. Accordingly, paragraphs 1, 2, 3, 4 and 9 of...

Jurisdiction
Australia
Judgment Date
11 November 2022
Procedural Posture
Representative Proceedings Pursuant to Part 10 of the Civil Procedure Act 2005 (nsw); Nuisance Class Action Concerning Construction of the Sydney Light Rail / Procedural Ruling on Notices to Produce Dated 26 October 2022 During Hearing on Liability and Lead Plaintiffs' Losses
Outcome
Paragraphs 1, 2, 3, 4 and 9 of the notices to produce dated 26 October 2022 are struck out.
Legal Topics
['notice to Produce' 'legitimate Forensic Purpose' 'waiver of Privilege' 'implied Waiver' 'representative Proceedings' 'nuisance' 'litigation Funding Costs as Damages']
['civil Procedure' 'evidence' 'legal Professional Privilege' 'torts'] ['notice to Produce' 'legitimate Forensic Purpose' 'waiver of Privilege' 'implied Waiver' 'representative Proceedings' 'nuisance' 'litigation Funding Costs as Damages']

Case Brief

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Procedural Posture

Representative Proceedings Pursuant to Part 10 of the Civil Procedure Act 2005 (nsw); Nuisance Class Action Concerning Construction of the Sydney Light Rail / Procedural Ruling on Notices to Produce Dated 26 October 2022 During Hearing on Liability and Lead Plaintiffs' Losses

Legal Issues

  1. 1 ['Whether paragraphs 1, 2, 3, 4 and 9 of the notices to produce should be set aside or struck out for lack of legitimate forensic purpose.' 'Whether documents sought by those categories were privileged.' 'Whether the plaintiffs waived legal professional privilege by affidavit evidence concerning their willingness to act as lead plaintiffs and the litigation funding agreement.' 'Whether the plaintiffs disclosed the substance of privileged communications or acted inconsistently with maintaining privilege under s 122 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

Although the disputed categories of documents may have had a legitimate forensic purpose for meeting the plaintiffs' novel claim for litigation funding costs as damages, the documents were treated as privileged and the plaintiffs had not waived privilege. Their affidavit evidence did not disclose the substance or contents of confidential communications, did not make express or implied assertions about those contents, and was not conduct inconsistent with maintaining privilege under s 122(2) or s 122(3)(a) of the Evidence Act 1995 (NSW). Withdrawal of the affidavit passages would not have restored the prior position, but no waiver had occurred. Accordingly, paragraphs 1, 2, 3, 4 and 9 of...

Court Disposition

Paragraphs 1, 2, 3, 4 and 9 of the notices to produce dated 26 October 2022 are struck out.

Orders

  • ['Paragraphs 1, 2, 3, 4 and 9 of the notices to produce dated 26 October 2022 are struck out.']