Dianne Twigg v Maxwell James Twigg (Privilege ruling no 2) - [2021] NSWSC 814

Supreme Court

New South Wales

Medium Neutral Citation: Dianne Twigg v Maxwell James Twigg (Privilege ruling no 2) [2021] NSWSC 814
Hearing dates: 18, 22, and 28 June 2021
Decision date: 05 July 2021
Jurisdiction: Equity - Commercial List
Before: Hammerschlag J
Decision:
Rulings made – see Schedule

Catchwords:
PRIVILEGE – Evidence Act 1995 (NSW) ss 117, 118, 119 – rulings on claims for privilege – where there is in force a declaration by the Court that the first defendant holds assets on constructive trust for the plaintiffs – prior to the declaration the first defendant retained an accounting firm to manage the assets and the retainer is still on foot – where the first defendant, to obtain a stay of other orders made by the Court, gave an undertaking to the Court of Appeal to instruct the accounting firm to prepare documentation relating to the value, status and movements of the assets so as to distinguish between the assets which were found to be held on trust and the remaining assets – whether communications made between the first defendant, or on his behalf by his lawyers, and the accounting firm, or on their behalf by their lawyers, in relation to the formulation of the orders by the Court concerning the constructive trust, compliance with them and compliance with the Undertaking, are privileged – HELD – they are not privileged either because the parties to the communications were not under an express or implied obligation not to disclose their contents or because the communications were not made for the dominant purpose of the lawyers providing legal advice to the defendants or for the dominant purpose of the defendants being provided with professional legal services in relation to the proceedings

Legislation Cited:
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Arnhem Land Aboriginal Land Trust v Northern Territory of Australia (2007) 157 FCR 255
Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342
Dianne Twigg v Maxwell James Twigg (Privilege ruling) [2021] NSWSC 595
John Anthony Jeans v John Richard Bruce & Ors [2004] NSWSC 758
Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 1377
Spellson v George (1987) 11 NSWLR 300
Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund (No 2) [2018] NSWCA 323
Twigg v Twigg (No 6); Lambert v Twigg Investments Pty Ltd (No 5) [2020] NSWSC 1856

Category: Procedural rulings
Parties: Diane Twigg - First Plaintiff/First Cross Defendant
Ipswich Landfill Pty Ltd atf Ipswich Landfill Trust - Second Plaintiff/Second Cross Defendant
Brooklyn Landfill & Waste Recycling Pty Ltd - Third Plaintiff/Third Cross Defendant
Twigg Plant Hire Pty Ltd - Fourth Plaintiff/Fourth Cross Defendant
Maxwell James Twigg - First Defendant/Fifth Cross Defendant
Twigg Landfill Pty Ltd - Second Defendant/Sixth Cross Defendant
Byron Bay Beach Hotel Properties Pty Ltd - Third Defendant/Seventh Cross Defendant
Twigg Consulting Pty Ltd - Fourth Defendant/Eighth Cross Defendant
B Bay H Pty Ltd - Fifth Defendant/Ninth…

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: [2021] NSWSC 814
Decision Date: 05 July 2021

CaseChat Overview and Summary

The case between Dianne Twigg and Maxwell James Twigg addresses issues of privilege in relation to legal communications made between the first defendant and an accounting firm retained to manage assets subject to a constructive trust. The matter was heard in the Supreme Court of New South Wales, where the court had to determine whether certain communications were privileged under the Evidence Act 1995 (NSW). The legal issues centred on whether the communications made between the first defendant, or his lawyers, and the accounting firm, or their lawyers, in relation to the formulation of court orders concerning the constructive trust, compliance with those orders, and compliance with an undertaking given to the Court of Appeal, were protected by legal professional privilege.

The court examined the provisions of sections 117, 118, and 119 of the Evidence Act 1995 (NSW) to ascertain the nature and scope of legal professional privilege. It was necessary to determine whether the communications were made under an express or implied obligation of confidentiality and whether they were made for the dominant purpose of obtaining or providing legal advice. The court found that the communications were not privileged either because the parties did not have an obligation not to disclose their contents or because they were not made for the dominant purpose of providing legal advice or receiving professional legal services. The court held that the communications were made in the context of managing assets subject to a constructive trust and complying with court orders, rather than for the purpose of obtaining or providing legal advice.

The court's reasoning hinged on the distinction between communications made for the dominant purpose of obtaining or providing legal advice and those made for other purposes, such as asset management and compliance with court orders. The fact that the first defendant had retained an accounting firm to manage the assets and that the communications were made in the context of complying with court orders and an undertaking to the Court of Appeal, meant that the communications did not meet the criteria for privilege under the Evidence Act 1995 (NSW). Consequently, the court ruled that the communications were not privileged.

Orders