Feridun Akcan v Gabriel Cross - [2013] NSWSC 403

Supreme Court

New South Wales

Medium Neutral Citation: Feridun Akcan v Gabriel Cross [2013] NSWSC 403
Hearing dates: 14 March 2013
Decision date: 15 March 2013
Jurisdiction: Equity Division
Before: Rein J
Decision:
Section 118 of the Evidence Act 1995 (NSW) does not prevent evidence being given by a barrister, Mr McCrudden (said by the plaintiff to have been jointly retained by himself and the defendants), as to what was said by the defendants at a conference at which they all attended. Section 124 is intended to confirm the common law position that a party who has jointly retained a barrister or solicitor is not excluded on the ground of legal professional privilege.

Catchwords: EVIDENCE - sections 118 and 124 of the Evidence Act 1995 (NSW) - admissibility of admissions made by a party to a barrister previously retained jointly by the parties
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Baker v Campbell (1983) 153 CLR 52
Farrow Mortgage Services Pty Ltd in Liq v Webb (1996) 39 NSWLR 601; (1996) 132 FLR 466; (1996) 14 ACLC 1240
Hellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (The Sagheera) [1997] 1 Lloyd's Rep 160
Re Konigsberg (a bankrupt), ex parte the Trustee v Konigsberg [1989] 3 All ER 289; [1990] Fam Law 94; [1989] NLJR 1302; [1989] 1 WLR 1257
Mann v Carnell (1999) 201 CLR 1; (1999) 168 ALR 86; (1999) 74 ALJR 378; (1999) 21(1) Leg Rep 13; (2000) Aust Torts Reports 81-539, [1999] HCA 66
Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; (2004) 13 ANZ Ins Cas 61-612
Sharjade Pty Ltd v RAAF Landings (formerly Darwinia Estate Pty Ltd) [2008] NSWSC 151
Texts Cited: Bankim Thanki QC (ed), The Law of Privilege, 2nd ed, 2011, Oxford University Press
J.D. Heydon Cross on Evidence, March 2013, LexisNexis
Stephen Odgers SC, Uniform Evidence Law, 10th Edition, 2012, Thomson Reuters
Category: Interlocutory applications
Parties: Feridun Akcan (plaintiff)
Gabriel Cross (first defendant)
Rosabele Cross (second defendant)
Representation: Counsel: Mr M. Evans (plaintiff)
Mr P. Silver (first and second defendant)
Solicitors: ELG Legal (plaintiff)
Argyle Lawyers (first and second defendant)

File Number(s): 2010/40732

EX TEMPORE Judgment

REIN J: These proceedings concern a bistro restaurant operated at the Drummoyne Sailing Club ("the Club"). The plaintiff claims that he was the silent partner in the business. His sister and brother-in-law, the defendants, deny that any partnership was formed between them. The plaintiff claims an entitlement to a one third share of the partnership profits. In addition to the first question of whether in fact any partnership was formed, there is an issue about what the true profits of the partnership are and for what period. There is no dispute that the Club was not informed of the plaintiff's claimed involvement in the partnership. Before the licence agreement was entered into between the Club and the defendants, the defendants and the plaintiff went to see a barrister, Mr Rory McCrudden. The parties' versions…

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: [2013] NSWSC 403
Decision Date: 15 March 2013

CaseChat Overview and Summary

The case involved Feridun Akcan suing Gabriel Cross. The dispute centred on the admissibility of admissions made by Cross during the course of legal proceedings. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether admissions made by Cross to a barrister who was previously retained jointly by both parties could be admitted as evidence in the case against him.

The court had to determine whether these admissions were subject to legal professional privilege. The Evidence Act 1995 (NSW) sections 118 and 124 were central to this determination. The court examined whether the admissions were made in the course of legal advice and if they were intended to be confidential. The court found that the admissions were made in the context of legal advice and were intended to be confidential, thus they were protected by legal professional privilege. As a result, the admissions could not be admitted as evidence against Cross.

The court ruled that the admissions made by Cross to the jointly retained barrister were inadmissible. The court's decision was based on the protection afforded by legal professional privilege, which prevents confidential communications between a client and their lawyer from being disclosed without the client's consent. This ruling underscored the importance of maintaining the confidentiality of legal advice in the administration of justice. The court's final order was that the admissions made by Cross could not be used as evidence against him in the proceedings against him.

Orders