d’Apice v Gutkovich - Estate of Abraham (No. 1) [2010] NSWSC 1336

d’Apice v Gutkovich - Estate of Abraham (No. 1) [2010] NSWSC 1336

The documents were created for the purpose of preparing for existing or contemplated proceedings and were privileged under s 119 of the Evidence Act 1995 (NSW) and at common law. Section 121(1) did not defeat the plaintiff's privilege because the deceased was not the client or party entitled to the privilege claimed; the plaintiff claimed privilege in his own right. The use of Dr Wallace's affidavits and reports did not waive privilege under ss 122 or 126 because the privileged materials were not used in a way inconsistent with maintaining privilege and were not reasonably necessary for a proper understanding of those affidavits or reports.

Jurisdiction
Australia
Judgment Date
27 October 2010
Procedural Posture
Probate Proceedings Concerning Testamentary Capacity; Procedural Privilege Ruling on Subpoenaed Documents / Objection to Production and Inspection of Documents Under Subpoena
Outcome
Claim for privilege upheld; objection to production of the documents upheld.
Legal Topics
['client Legal Privilege' 'litigation Privilege' 'subpoena Production and Inspection' 'waiver of Privilege' 'testamentary Capacity']
['civil Procedure' 'evidence' 'probate and Succession'] ['client Legal Privilege' 'litigation Privilege' 'subpoena Production and Inspection' 'waiver of Privilege' 'testamentary Capacity']

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Procedural Posture

Probate Proceedings Concerning Testamentary Capacity; Procedural Privilege Ruling on Subpoenaed Documents / Objection to Production and Inspection of Documents Under Subpoena

Legal Issues

  1. 1 ["Whether documents sought by subpoena from the deceased's former solicitor, also connected with the plaintiff's solicitors, were privileged under s 119 of the Evidence Act 1995 (NSW) or at common law." "Whether Evidence Act 1995 (NSW), s 121(1) precluded the plaintiff's privilege claim because the proceedings concerned the competence in law of a deceased client." "Whether privilege had been waived under Evidence Act 1995 (NSW), ss 122 or 126 by service and reliance on Dr Wallace's affidavits and reports." 'Whether, if privilege against production were unavailable, common law litigation privilege would nevertheless justify resisting inspection of documents produced to the Court.']

Ratio Decidendi

The documents were created for the purpose of preparing for existing or contemplated proceedings and were privileged under s 119 of the Evidence Act 1995 (NSW) and at common law. Section 121(1) did not defeat the plaintiff's privilege because the deceased was not the client or party entitled to the privilege claimed; the plaintiff claimed privilege in his own right. The use of Dr Wallace's affidavits and reports did not waive privilege under ss 122 or 126 because the privileged materials were not used in a way inconsistent with maintaining privilege and were not reasonably necessary for a proper understanding of those affidavits or reports.

Court Disposition

Claim for privilege upheld; objection to production of the documents upheld.

Orders

  • ["The documents marked for identification as MFI-1 are to be returned to the plaintiff's solicitors." 'The documents should be kept in a sealed packet in case any question subsequently arises in relation to the accuracy of the decision.' "MFI-1 should be retained by the plaintiff's solicitors until further order."]