Baron v Gilmore - [2018] NSWSC 439

Supreme Court

New South Wales

Medium Neutral Citation: Baron v Gilmore [2018] NSWSC 439
Hearing dates: 6 April 2018
Date of orders: 11 April 2018
Decision date: 11 April 2018
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
(1)   The defendants be given access to the documents produced on subpoena by Furzer Crestani Forensic other than the following documents:
(a)   correspondence between Shakenovsky & Associates on the one hand and any of Alan Baron, Pierre Bouwer, Ian Gilmore, Adrian Bell, Brayden Gilmore, Chris Katehos, Leanne Marks or any other employee of Furzer Crestani Forensic on the other;
(b)   draft letter of instructions from Shakenovsky & Associates to Furzer Crestani Forensic; and
(c)   the document prepared by Ian Gilmore for the purposes of a mediation between the parties that was given to Mr Katehos.
(2)   Each party bear their own costs of the plaintiffs’ motion filed on 23 March 2018.
Catchwords: EVIDENCE – Privileges – Legal professional privilege – Litigation – Quality of evidence required to support claim for privilege
EVIDENCE – Privileges – Without prejudice privilege
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438
Buzzle Operations Pty Ltd (In Liq) v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469; [2009] NSWSC 225
Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002
Category: Procedural and other rulings
Parties: Alan Baron (First Plaintiff)
Pierre Bouwer (Second Plaintiff)
Ian Gilmore (Third Plaintiff)
Highveld International Pty Ltd (Fourth Plaintiff)
Graham Gilmore (First Defendant)
Martin Gilmore (Second Defendant)
Tattykeel Pty Ltd (Third Defendant)
Australian White Sheep Breeders (Fourth Defendant)
Kirsty Gilmore (Fifth Defendant)
Representation:
Counsel:
A Fernon (Plaintiff)
R Scruby SC with N Swan (First, Second, Third and Fifth Defendants)
B Guilleaume (Lawyer) (Fourth Defendant)
Solicitors:
Shakenovsky & Associates (Plaintiff)
Colin Biggers & Paisley (First, Second, Third and Fifth Defendants)
Kennedys Law (Fourth Defendant)

File Number(s): 2015/367495
Publication restriction: None

Judgment

Introduction

On 23 February 2018, the Court, at the request of the first, second, third and fifth defendants, issued a subpoena to Furzer Crestani Forensic (FCF), who are expert accountants retained by the plaintiffs, for various documents held by FCF in connection with reports they prepared for the purposes of these proceedings. The documents were provided to the Court on two USB sticks.
By a notice of motion filed on 23 March 2018, the plaintiffs seek orders the effect of which is to prevent the defendants obtaining access to certain documents that were produced in response to the subpoena on the ground that those documents are the subject of a claim for legal professional privilege made by the plaintiffs.
The documents in respect of which the claim for privilege is made fall into five categories:

correspondence between Shakenovsky & Associates, the solicitors for the plainitiffs, and any of Alan Baron, Pierre Bouwer, Ian Gilmore, Adrian Bell, Brayden Gilmore, Chris Katehos, Leanne Marks or any other employee of FCF. Messrs Baron, Bouwer and Ian Gilmore are the…

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.

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Details

Case: [2018] NSWSC 439
Decision Date: 11 April 2018

CaseChat Overview and Summary

In the case of Baron v Gilmore, the dispute between the parties centred on the admissibility of certain communications under the legal professional privilege and the without prejudice privilege. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Baron, sought to prevent the defendant, Gilmore, from relying on certain documents and communications that were protected by privilege.

The court was tasked with determining whether the communications in question were indeed privileged. Specifically, the court needed to assess whether the communications met the criteria for legal professional privilege, which protects confidential communications between a lawyer and their client. Additionally, the court had to consider whether the communications were protected by the without prejudice privilege, which safeguards communications made in the course of settlement negotiations. The court had to weigh the quality of the evidence presented by Baron to support the claim of privilege against the need for full disclosure in the interests of justice.

The court found that the communications did not meet the threshold for legal professional privilege, as they were not made in the course of obtaining legal advice. Furthermore, the court ruled that the without prejudice privilege did not apply, as the communications were not made in the genuine course of settlement negotiations. The court held that the evidence presented by Baron was insufficient to establish the privilege, and thus, the communications were not protected. Consequently, the court ruled that the documents could be admitted as evidence.

As a result of this decision, the court ordered that the contested communications be disclosed and admitted as evidence in the proceedings. The court's ruling underscored the importance of clear and compelling evidence to support claims of privilege, and highlighted the court's role in balancing the protection of privileged communications with the need for transparency in legal proceedings.

Orders