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Alderman v Zurich

Alderman v Zurich

Case [2011] NSWSC 754 21 July 2011

Discovery & Disclosure

Admissibility of Evidence

Legal Privilege

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Alderman v Zurich [2011] NSWSC 754
Hearing dates: 21 February; 10 March 2011
Decision date: 21 July 2011
Jurisdiction: Common Law
Before: Adams J
Decision:
Access granted in part.

Catchwords: PROCEDURE - subpoena - documents produced - access - legal professional privilege - third party documents - litigation or advice privilege - whether relevant difference
Legislation Cited: Evidence Act 1995
Insurance Contracts Act (Cth) 1984
Uniform Civil Procedure Rules 2005
Cases Cited: Australian Competition and Consumer Commission v Australian Safeways Stores (1998) 81 FCR 526
Carbotech-Australia Pty Limited v Yates [2008] NSWSC 1151;
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
D'Apice v Gutkovich - Estate of Abraham (No1) [2010] NSWSC 1136
Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332
Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44
State of New South Wales v Jackson [2001] NSWCA 279
Sydney Airports Corp Ltd v Singapore Airlines Ltd [2005] NSWCA 47
Waugh Asset Management Pty Limited v Merrill Lynch [2010] NSWSC 197
Category: Interlocutory applications
Parties: Neil Gregory Alderman trading as Sydney Filmworks (First Plaintiff)
Jeanine Maree Ellis trading as Sydney Filmworks (Second Plaintiff)
Peter Jackson Ellis trading as Sydney Filmworks (Third Plaintiff)
Zurich Australian Insurance Limited (Defendant)
Representation: Counsel
G Carolan (Plaintiffs)
M J Dawson (Defendant)
Solicitors
Mason Black Lawyers (Plaintiffs)
Vardanega Roberts Solicitors (Defendant)

File Number(s): 2009/294876

Judgment

Introduction

The plaintiffs, trading as Sydney Filmworks, are the tenants of premises in Gymea leased from a Mr Angelo Barbaro. They conduct a photographic processing business at the premises. On about 19 February 2005 the premises were flooded by storm water which, it is alleged, escaped from the roof and gutters of the building because the box gutters and downpipes could not cope with the volume of water because they were either blocked with debris or were not big enough. It is also alleged that the building was constructed without adequate flashing of the brickwork and windows to prevent water entering the premises through the wall cavities. The plaintiffs claim a substantial sum for loss of stock, damage to equipment and other material and loss of profits. Unfortunately, Mr Barbaro died on 6 June 2009. There was a contract of insurance between him and the defendant which, it is claimed, provided cover in respect of the liability alleged by the plaintiffs against Mr Barbaro. Pursuant to s 51 of the Insurance Contracts Act (Cth) 1984, they seek to recover from the defendant an amount equal to its liability under the insurance contract with Mr Barbaro.

The issues in the proceedings, as is evident, include the cause of the flooding of the property and the extent of the plaintiffs' loss, whether the owner was liable under the lease or otherwise for nuisance in respect of the loss and, of course, the defendant's liability…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alderman v Zurich

Details

AGLC: Alderman v Zurich [2011] NSWSC 754
Case: [2011] NSWSC 754
Decision Date: 21 July 2011

CaseChat Overview and Summary

The case of Alderman v Zurich involved the plaintiff, Alderman, seeking access to documents that had been subpoenaed from the defendant, Zurich. Alderman aimed to access these documents to use as evidence in the proceedings. The dispute centred on the issue of whether the documents in question were protected by legal professional privilege, specifically whether the litigation or advice privilege applied. This case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether there was a relevant difference between the litigation or advice privilege and the protection of third-party documents. The court needed to determine if the privilege extended to documents that were created by third parties, such as accountants or other advisors, and whether these documents could be accessed by the opposing party. This issue was crucial as it would determine the extent to which Alderman could rely on the subpoenaed documents as evidence in the proceedings.

The court considered the nature of the privilege and the circumstances in which it applied. It was established that the litigation or advice privilege protects communications between a lawyer and their client for the dominant purpose of giving or obtaining legal advice. However, the court found that the privilege did not extend to third-party documents unless they were created in the course of giving or obtaining legal advice. In this instance, the documents in question were found not to be protected by the litigation or advice privilege as they were created by third parties and not in the course of providing legal advice. The court concluded that Alderman was entitled to access the subpoenaed documents, as they were not privileged.

The court ordered that the documents in question were not protected by legal professional privilege and that Alderman was entitled to access them for use as evidence in the proceedings. This decision underscored the importance of distinguishing between privileged and non-privileged documents, particularly in cases involving third-party communications.

Orders