Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002

Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002

Because the documents were produced by third parties and the objections to inspection were taken by the litigating parties rather than by the subpoenaed producers, the privilege claims were governed by common law principles. On both motions, the parties asserting privilege failed to prove by adequate evidence the facts necessary to establish a dominant privileged purpose or that inspection would disclose privileged communications. Hearsay evidence identifying its source was admissible on the interlocutory motions, but conclusory assertions of purpose and reliance on inferences from retainers were insufficient, particularly where direct evidence was available but not provided. Accordingly,...

Jurisdiction
Australia
Judgment Date
21 July 2016
Procedural Posture
Equity Technology and Construction List; Procedural Notices of Motion Concerning Access to Documents Produced Under Subpoena / Interlocutory Notices of Motion
Outcome
Each party's claim for access to documents was upheld with costs; costs to be set off.
Legal Topics
['access to Subpoenaed Documents' 'legal Professional Privilege' 'common Law Privilege' 'evidence Act Privilege' 'dominant Purpose Test' 'expert Reports and Working Notes' 'hearsay Evidence in Interlocutory Proceedings' 'costs Set Off']
['civil Procedure' 'evidence' 'client Legal Privilege' 'technology and Construction'] ['access to Subpoenaed Documents' 'legal Professional Privilege' 'common Law Privilege' 'evidence Act Privilege' 'dominant Purpose Test' 'expert Reports and Working Notes' 'hearsay Evidence in Interlocutory Proceedings' 'costs Set Off']

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Procedural Posture

Equity Technology and Construction List; Procedural Notices of Motion Concerning Access to Documents Produced Under Subpoena / Interlocutory Notices of Motion

Legal Issues

  1. 1 ['Whether privilege claims over documents produced by third parties under subpoena were governed by Part 3.10 of the Evidence Act 1995 (NSW) or by common law principles where the objection was taken by parties rather than by the subpoenaed producers.' "Whether Valbeet proved client legal privilege over expert draft reports, working notes, timesheets, a letter and a tax invoice so as to resist Tavcol's access application." "Whether Tavcol proved client legal privilege over redacted LMI documents and documents prepared by Mr Giliberti so as to resist Valbeet's access application." 'Whether hearsay evidence identifying the source was admissible on the interlocutory motions, and whether conclusory evidence of purpose was sufficient to prove privilege.']

Ratio Decidendi

Because the documents were produced by third parties and the objections to inspection were taken by the litigating parties rather than by the subpoenaed producers, the privilege claims were governed by common law principles. On both motions, the parties asserting privilege failed to prove by adequate evidence the facts necessary to establish a dominant privileged purpose or that inspection would disclose privileged communications. Hearsay evidence identifying its source was admissible on the interlocutory motions, but conclusory assertions of purpose and reliance on inferences from retainers were insufficient, particularly where direct evidence was available but not provided. Accordingly,...

Court Disposition

Each party's claim for access to documents was upheld with costs; costs to be set off.

Orders

  • ['The applicant in each motion is to have its costs.' 'Those costs are to be set off.' 'Any application for different costs orders is to be notified in writing to the Associate and to the other party by 5 August 2016.']