Alderman v Zurich

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.