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Galati v Deans

Galati v Deans

Case [2019] NSWSC 1548 8 November 2019

Discovery & Disclosure

Legal Professional Privilege

Implied Waiver

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Galati v Deans [2019] NSWSC 1548
Hearing dates: 24 October 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1)   Refuse the cross-claimants’ application for general access in respect of documents produced on subpoena on 28 June 2019 by Norton Rose Fulbright.
(2)   Grant access to the cross-claimants to so much of the documents produced on subpoena as fall within the schedule of documents prepared by the tenth cross-defendant and put forward in its solicitors’ letter dated 27 September 2019 (but reading the words “tending to prove” where appearing in the fourth column of that schedule as “tending to prove or disprove or tending to prove whether or not”), without prejudice to the cross-claimants’ ability later to seek access to further documents if it is claimed that there has been an implied waiver having regard to these reasons.
(3)   Direct the tenth cross-defendant to provide to the Associate to Ward CJ in Eq, in a sealed envelope marked “Privileged”, within seven days the “Project Magoo” document (item 105 in the schedule prepared by the cross-claimants) for a ruling on that document in due course.
(4)   Direct the parties to exchange brief written submissions as to costs within seven days with a view to dealing with the issue of the costs of the notice of motion filed 8 October 2019 being dealt with on the papers.

Catchwords: CIVIL PROCEDURE — Subpoenas — application by defendants for access to documents produced on subpoena by tenth cross-defendant’s former solicitors – legal professional privilege claimed – whether implied waiver of privilege – orders made for access to certain documents on basis that affidavits filed in the proceedings by tenth cross-defendant disclose communications giving rise to implied waiver
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), s 22
Uniform Civil Procedure Rules 2005 (NSW), r 33.2
Cases Cited: Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418
Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; [2004] FCAFC 237
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86
Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Expense Reduction Analysts Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Galati v Deans [2018] NSWSC 1600
Gloucester Shire Council v Fitch Ratings, Inc (No 2) [2017] FCA 248
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corp (No 2) [1981] Comm LR 138
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No. 2) [2016] NSWSC 829
Traderight…

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.

Continue reading Galati v Deans

Details

AGLC: Galati v Deans [2019] NSWSC 1548
Case: [2019] NSWSC 1548
Decision Date: 08 November 2019

CaseChat Overview and Summary

In Galati v Deans, the defendants sought access to documents produced on a subpoena by the tenth cross-defendant's former solicitors. The claim for access arose from the defendants' assertion that the documents were necessary for their defence in the proceeding. The tenth cross-defendant, however, objected to the release of the documents, asserting that they were protected by legal professional privilege. The case was heard in the Federal Court of Australia, where the central issue was whether the privilege had been impliedly waived by the tenth cross-defendant's conduct.

The court had to determine whether the filing of affidavits by the tenth cross-defendant in the proceedings constituted an implied waiver of the legal professional privilege. The defendants argued that by filing affidavits, the tenth cross-defendant had effectively waived the privilege in relation to the documents in question. The court considered the nature of the communications contained in the affidavits and whether these communications disclosed information that would otherwise be protected by legal professional privilege. The central question was whether the act of filing the affidavits constituted an implied waiver of privilege, thereby allowing the defendants access to the documents.

In its judgment, the court found that the affidavits filed by the tenth cross-defendant contained communications that disclosed the existence of the legal advice and the substance of that advice. The court concluded that this disclosure amounted to an implied waiver of privilege. As a result, the court ordered that the defendants be granted access to certain documents that had been produced on the subpoena. The court's decision hinged on the principle that the filing of documents in court proceedings can sometimes lead to an implied waiver of privilege if those documents reveal the substance of legal advice.

The court's final orders were that the defendants be granted access to the specified documents. This decision was based on the premise that the tenth cross-defendant's conduct in filing affidavits with relevant content led to an implied waiver of the privilege that protected the documents. The court's ruling was a careful balancing of the need for fair litigation and the protection of legal professional privilege.

Orders