Gillett v Nelson - [2014] NSWSC 115

Supreme Court

New South Wales

Medium Neutral Citation: Gillett v Nelson [2014] NSWSC 115
Hearing dates: 19 February 2014
Decision date: 25 February 2014
Jurisdiction: Equity Division
Before: Darke J
Decision:
Privilege has not been lost in respect of a draft legal advice.

Catchwords:
EVIDENCE - client legal privilege - loss of privilege - whether for purposes of s121(1) Evidence Act 1995 deceased person is "a client or party who has died"
EVIDENCE - client legal privilege - loss of privilege - whether for purposes of s122(2) Evidence Act 1995 client or party acted inconsistently with objecting to disclosure of draft legal advice - advice referred to in evidence - whether for the purposes of s122(3) Evidence Act 1995 client or party knowingly and voluntarily disclosed the substance of draft legal advice - content of advice not referred to
Legislation Cited: Succession Act 2006
Evidence Act 1995
Cases Cited: Archer Capital 4A Pty Ltd v Sage Group plc (No. 3) [2013] FCA 1160
d'Apice v Gutkovich [2010] NSWSC 1336
Expense Reduction Analysts Group Limited v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46
Fenwick v Wambo Coal Pty Limited (No.2) [2011] NSWSC 353
Landmark Underwriting Agency Pty Limited v Kilborn [2006] NSWSC 1108
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
RinRim Pty Limited v Deutsche Australia Limited [2013] NSWSC 1654
Standard Chartered Bank of Australia Limited v Antico (1993) 36 NSWLR 87
Traderight (NSW) Pty Ltd v Bank of Queensland [2013] NSWSC 211
Category: Procedural and other rulings
Parties:
Annette Carol Gillett (Plaintiff)
Virginia Nelson (First Defendant)
Peter Andrew Stiles (Second Defendant)
Bryan Guersant Mellon (Third Defendant)
Naringtan Pty Ltd (Fourth Defendant)
Representation:
Solicitors:

Hartmann & Associates (Plaintiff)
Watson Mangioni Lawyers (Defendants)
Counsel:
J S Drummond and D Barlin (Plaintiff)
J B Simpkins SC and P Knowles (Defendants)

File Number(s): 2011/191188
Publication restriction: Nil

Judgment

The plaintiff seeks a family provision order under the Succession Act 2006 in relation to the estate, or notional estate, of her late father Arthur Nelson ("the deceased"). The first three defendants are the executors of the estate, and the fourth defendant is the trustee of a family trust established by the deceased.

At the commencement of the third day of the hearing, counsel for the plaintiff made a call for production of a document which is described as "a draft advice of Henry Davis York". The document is so described in an email dated 28 August 2008 which is in evidence. The email is referred to in the affidavits of two witnesses, namely, Mr Peter Stiles (the second defendant) and Mr Guersant Mellon (the third defendant).

Although not entirely clear, it may be that the call for production of evidence extended to a further document referred to in the email, namely, a "supplementary advice" which was to be requested of Henry Davis York ("HDY").

Documents meeting these descriptions would, prima facie, be the subject of client legal privilege, but it was submitted by the plaintiff that any…

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 Gillett v Nelson

Details

AGLC: Gillett v Nelson [2014] NSWSC 115
Case: [2014] NSWSC 115
Decision Date: 25 February 2014

CaseChat Overview and Summary

In the case of Gillett v Nelson, the respondent sought to rely on client legal privilege in an attempt to exclude certain documents from disclosure. The primary dispute centred around the loss of privilege under sections 121(1) and 122(2) of the Evidence Act 1995, and whether the deceased individual could be considered a client or party who had died under section 121(1). Additionally, the case examined whether the deceased client had acted inconsistently by referring to the draft legal advice in their evidence, which would result in a loss of privilege under section 122(2). Finally, the court needed to determine whether the deceased had knowingly and voluntarily disclosed the substance of the draft legal advice, as required under section 122(3) of the Act.

The court was required to interpret the relevant sections of the Evidence Act 1995 to determine whether client legal privilege was lost in this instance. The primary focus was on whether the deceased client's reference to the draft legal advice in their evidence constituted an act inconsistent with objecting to disclosure, and whether this constituted a voluntary disclosure of the advice's substance. Additionally, the court needed to ascertain whether the deceased client could be considered a client or party who had died for the purposes of section 121(1) of the Evidence Act.

The court concluded that the deceased client had not acted inconsistently with objecting to the disclosure of the draft legal advice, as they had only referred to the advice in their evidence. Furthermore, the court determined that the deceased had not knowingly and voluntarily disclosed the substance of the draft legal advice, as there was no evidence to suggest that they had done so. In relation to the deceased client's status, the court held that the deceased could indeed be considered a client or party who had died under section 121(1) of the Evidence Act. Consequently, the privilege was not lost under this provision.

As a result of the court's findings, the respondent was not required to disclose the documents in question, as client legal privilege was upheld. The court's decision provided clarity on the interpretation of sections 121(1) and 122(2) of the Evidence Act 1995, as well as the circumstances in which privilege may be lost due to a client's actions.

Orders