Attwells v White (No 2)

[2021] NSWSC 135

Supreme Court

New South Wales

Medium Neutral Citation:

Attwells v White (No 2) [2021] NSWSC 135

Hearing dates:

23 February 2021

Decision date:

23 February 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Rule that the second defendant has established his claim for privilege under s 119 of the Evidence Act 1995 (NSW) in relation to the following documents:

(a)   The letter dated 14 June 2018 between the second defendant and his insurer;

(b)   The redacted portions of the emails dated 10 May 2018 and 21 May 2018 from the first defendant to the second defendant and the email dated 20 May 2018 from the second defendant to the first defendant.

(2)   Order the plaintiff to pay the second defendant’s costs of the hearing on 23 February 2021.

Catchwords:

EVIDENCE — Privileges — Client legal privilege — Litigation

COSTS — Party/Party — General rule that costs follow the event — Application of the rule

Legislation Cited:

Civil Procedure Act 2005 (NSW), Pt 5

Evidence Act 1995 (NSW), s 119

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Category:

Procedural rulings

Parties:

Noel Bruce Attwells (Plaintiff)
Gary Alan White (First Defendant)
John Kelly SC (Second Defendant)

Representation:

Counsel:
R Newell (Plaintiff)
K Petch (First Defendant)
I Griscti (Second Defendant)

Solicitors:
L C Muriniti & Associates Solicitors (Plaintiff)
Gilchrist Connell (First Defendant)
Mills Oakley (Second Defendant)

File Number(s):

2017/382284

Judgment (ex tempore)

Introduction

1. The plaintiff has issued a notice to produce requiring documents to be produced by the second defendant. The most recent version of the notice to produce addressed to the second defendant was filed on 22 December 2020 and made returnable for 2 February 2021. The notice to produce was served on 4 January 2021. The second defendant made two claims for privilege in respect of documents covered by the notice.

The issues between the parties

2. In an affidavit sworn on 12 February 2021, Mr Aroney, the solicitor for the second defendant, deposed that the document sought post-dated not only the commencement of legal proceedings and service of the statement of claim but also the second defendant’s notification to his insurer of circumstances likely to give rise to a claim. Mr Aroney deposed that the claim for privilege was made in relation to that document pursuant to s 119 of the Evidence Act 1995 (NSW).

3. In further correspondence between the parties, Mr Aroney informed Mr Muriniti, the solicitor on the record for the plaintiff, that in order to avoid the parties incurring unnecessary costs he was willing to provide a copy of the subject document, being an email from John Kelly, the second defendant, dated 14 June 2018, to Vero Insurance constituting the claim on the insurer after he was served with a statement of claim. Mr Aroney also informed Mr Muriniti of the second defendant’s willingness to have the Court inspect the document for the purposes of ascertaining whether it was privileged.

4. Mr Newell, who appears on behalf of the plaintiff, has objected to that course and informed me it would not be appropriate for me to look at the document. The basis for his objection is that, as the plaintiff is not entitled to look at a document in respect of which privilege has been claimed unless there is a finding that the document is not privileged or privilege has been waived, for me to look at the document would potentially involve a breach of natural justice to the plaintiff. Mr Newell submitted that the better course would be for me to confine my consideration of whether the document is privileged to evidence adduced by or on behalf of the second defendant.

5. I note further that, on 17 February 2021, Mr Muriniti wrote to Mr Aroney and sought evidence as to the dominant purpose for which the document was created. Mr Muriniti further submitted that the evidence as to the dominant purpose in support of the claim for privilege should be given by the second defendant because that was what was required in order to make out a claim for privilege pursuant to s 119 of the Evidence Act.

6. I am told by Mr Griscti, who appears for the second defendant, that the document in which the second defendant notified his insurer of the circumstances relating to the claim has been produced and that the notification is dated about a month before the document in question (which is dated 14 June 2018). Mr Griscti submitted that the only reasonable inference was that a communication between the second defendant and his insurer on 14 June 2018 following notification of circumstances, a month previously, was a confidential document that was prepared for the dominant purpose of the client, that is the second defendant, being provided with professional legal services relating to an Australian proceeding, including the proceeding before the Court, in which the second defendant is a party.

Consideration

7. These proceedings were commenced by a statement of claim, filed on 18 December 2017. An appearance was filed by the second defendant on 19 June 2018, that is, five days after the communication between the second defendant and his insurer.

8. Whilst it would have been open to the second defendant to prove that the document was privileged by giving express evidence from Mr Kelly, in the terms of s 119 of the Evidence Act, that is not the only way in which privilege can be established.

9. The chronology, together with the evidence of Mr Aroney, satisfies me that, on the balance of probabilities, there is no other reasonable hypothesis other than the second defendant communicated with his insurer in a confidential communication which was prepared for the dominant purpose of his being provided with professional legal services. That inference is corroborated by the timing of the filing of the notice of the appearance on behalf of the second defendant on 19 June 2018 and is supported by the evidence of Mr Aroney.

10. I am not satisfied it was necessary for the second defendant, himself, to give evidence as to his dominant purpose. Indeed, the principles of case management in Pt 6 of the Civil Procedure Act 2005 (NSW) are, in my view, consistent with flexible modes of proof, including by evidence from the solicitor of a party, rather than from the party.

11. Accordingly, I find that the document dated 14 June 2018 is a privileged document and need not be produced to the plaintiff pursuant to the notice to produce.

12. The second issue between the parties on the topic of privilege under the notice to produce is that the plaintiff complains that some of the documents produced include portions that were redacted. Mr Muriniti's affidavit annexes two emails, one dated 10 May 2018 from the first defendant to the second defendant; and one dated 21 May 2018, also from the first defendant to the second defendant. There is also an email of 20 May 2018 from the second defendant to the first defendant.

13. The relationship between the parties was that the plaintiff retained the first defendant as his solicitor and the first defendant briefed the second defendant to advise and appear on behalf of the plaintiff in proceedings against Jackson Lalic.

14. The redacted portions, which are evident from the documents annexed to Mr Muriniti's affidavit, are relatively few in number and in some cases result in the obliteration of an entire paragraph and in other cases a few words in a single paragraph.

15. It is evident from these emails that, at the time they were exchanged, the first defendant was travelling overseas and the second defendant had just returned from Queensland. The two defendants, both legal practitioners, appear to have been communicating about certain matters which include the plaintiff’s claim against each of them.

16. In his affidavit Mr Aroney deposed that the portions redacted are in respect of subject matter that is outside the scope of paragraph 2 of the notice to produce and are also unrelated to the plaintiff's claim against the second defendant. He also deposed that the portions redacted include matters in respect of which the recipient of the communication is entitled to claim privilege. He also deposed that as far as he is aware there has been no waiver of the privilege. I infer from this evidence that the redacted portions relate to legal matters between the first and second defendants, which relate to a client who is other than the plaintiff in these proceedings.

17. Mr Newell takes exception to the redactions and says that the usual and appropriate course for a party producing documents is to produce a document in its entirety, unless a claim for privilege has been established. Generally speaking, parties can reach agreement on redactions about matters which do not concern the issue between the parties in the litigation at hand. However, when that cannot occur the only real basis for redacting a document is to obliterate parts of the document which may establish to have been privilege. The fact that a part of the document is irrelevant to the issue or not caught by a notice to produce does not usually excuse the producing party from producing the whole of the unredacted document. The position is otherwise where there is a claim for privilege.

18. In the present circumstances, Mr Aroney has deposed to the circumstance that the matters redacted concern matters in respect of which the client, whoever that may be, would be entitled to claim privilege. A solicitor and barrister are obliged to retain and protect privileged communications pending the client's decision whether to waive the privilege.

19. Accordingly, in these circumstances I am satisfied that the portions which have been redacted are privileged and that, therefore, the redaction is appropriate. My view would be otherwise if the only basis for the redaction was relevance. However, as I am satisfied, on the basis of the evidence of Mr Aroney, the claim for privilege has been made out, I decline to order that unredacted copies of those documents be produced to the plaintiff.

Costs

20. The second defendant, through his counsel Mr Griscti, seeks an order for costs of today as the second defendant has been successful on the privilege arguments against the plaintiff.

21. Mr Newell contended that, on a proper analysis of the communication, Mr Aroney was prepared to provide the document of 14 June 2018 on condition that the notice to produce was withdrawn. He submitted that was a confusing and contradictory demand and that the plaintiff was entitled not to accept it. He submitted further that it ought be inferred from the offer that the second defendant was not seriously concerned about the privileged nature of the document of 14 June 2018.

22. Whilst there are some ambiguities in the correspondence between the parties, what is plain is that no agreement was reached between the parties. By reason of a subsisting dispute as to whether claim for privilege was made out, the argument had to occur today. As the claim has been made out, the second defendant has been successful and the plaintiff has been unsuccessful.

23. In those circumstances, I do not consider that there is any reason to depart from the general rule in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) that costs ought follow the event.

Orders

24. For the reasons given above, I make the following rulings and orders:

1. Rule that the second defendant has established his claim for privilege under s 119 of the Evidence Act 1995 (NSW) in relation to the following documents:

1. The letter dated 14 June 2018 between the second defendant and his insurer;

2. The redacted portions of the emails dated 10 May 2018 and 21 May 2018 from the first defendant to the second defendant and the email dated 20 May 2018 from the second defendant to the first defendant.

2. Order the plaintiff to pay the second defendant’s costs of the hearing on 23 February 2021.

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Decision last updated: 24 February 2021