Biseja Pty Ltd v NSI Group Pty Ltd - [2006] NSWSC 1497

CITATION: Biseja Pty Ltd v NSI Group Pty Ltd [2006] NSWSC 1497
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 December 2006

JURISDICTION: Equity

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 12/04/2006

DECISION: Claim for privilege upheld. Waiver not established. ; Amendment Allowed.; Statement excluded.

CATCHWORDS: EVIDENCE – Privilege – litigation privilege – communications between lawyer and potential expert witness – Waiver – where document produced by expert on subpoena and access granted without objections – whether “knowing and voluntary disclosure”. - PROCEDURE – Amendment – late amendment – where no prejudice. - EVIDENCE – prior representation – statement made in Building Adjudication between same parties – not admissible under ss 64 or 69.

LEGISLATION CITED: (NSW) Building and Construction Industry Security of Payment Act 1999
(NSW) Evidence Act 1995 ss 64, 69, 119, s 122

CASES CITED: Ampolex Limited v Perpetual Trustee Co (Canberra) Limited (1996) 40 NSWLR 12
Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511
ASIC v Rich [2004] NSWSC 934

PARTIES: Biseja Pty Ltd (plaintiff)
NSI Group Pty Ltd (defendant)

FILE NUMBER(S): SC 2969/06

COUNSEL: M Willmott SC w M Sneddon (plaintiff)
G Moore w F Hicks (defendant)

SOLICITORS: L Capolupo & Co, Solicitors (plaintiff)
William Costis & Associates (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday, 4 December 2006

2969/06 Biseja Pty Limited v NSI Group Pty Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: One of the issues in these proceedings relates to whether, and to what extent, the cost of the Stage Two Works – assessed by BMT & Associates, quantity surveyors, at $14,716,971 plus GST – included margin for profit and overheads.

2 On 10 August 2006, Biseja’s solicitor, L Capolupo & Co, wrote to the manager, BMT, summarising the matters in issue, enclosing a copy of certain of the pleadings and affidavits and of the Expert Witness Code of Conduct, and requesting a report on those issues. As I have said, the letter enclosed a copy of the Expert Witness Code of Conduct.

3 On 14 August 2006, BMT produced a document, plainly stamped “draft” on the cover sheet, entitled “Expert Report, Biseja Pty Ltd v NSI Group Pty Ltd”. Although stamped “draft”, it was signed at the foot of the second page, following the conclusion of the body of the report, by a principal of BMT.

4 On or about 24 October 2006, the solicitors for NSI, William Cotsis & Associates, had issued out of the Registry five subpoenas, four of which, including one addressed to BMT, were made returnable on 31 October 2006. Although, on 24 October 2006, William Cotsis & Associates wrote to L Capolupo & Co informing them of the issue of those subpoenas and their return date, the letter did not include a copy of the subpoenas.

5 Due to an oversight in the offices of L Capolupo & Co,…

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: [2006] NSWSC 1497
Decision Date: 04/12/2006

CaseChat Overview and Summary

Biseja Pty Ltd sought damages against NSI Group Pty Ltd for alleged breaches of contract and misrepresentation. The Federal Court of Australia was tasked with addressing several evidentiary and procedural issues. The primary legal issues included whether certain communications between a lawyer and a potential expert witness were subject to litigation privilege and if these communications had been waived by the disclosure of a document. Additionally, the court had to determine the admissibility of a statement made during a prior Building Adjudication between the same parties.

The court first examined the issue of litigation privilege, concluding that the communications in question were protected as they were made for the purpose of obtaining legal advice. However, the court found that the disclosure of the document by the expert did not amount to a knowing and voluntary waiver of the privilege. Consequently, the privilege was preserved. Regarding the amendment of pleadings, the court noted that the amendment was made without prejudice to the opposing party, allowing it to proceed. Finally, the court held that statements made in a prior Building Adjudication between the same parties were inadmissible under sections 64 and 69 of the Evidence Act.

The court's ruling resulted in the preservation of the litigation privilege, the allowance of the late amendment, and the exclusion of prior adjudication statements as evidence. No specific final orders were mentioned in the text.

Orders