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Grace v Grace

Grace v Grace

Case [2010] NSWSC 1514 16 November 2010

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CITATION: Grace v Grace [2010] NSWSC 1514

HEARING DATE(S): 16 November 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 16 November 2010

DECISION: Privilege lost by waiver in respect of documents in folder 33. Claim for privilege upheld in respect of second and third documents in VD 213.

CATCHWORDS: EVIDENCE – Facts excluded from proof – privilege – client legal privilege and litigation privilege – Waiver of privilege – whether disclosure was obviously mistaken

LEGISLATION CITED: (NSW) Evidence Act 1995, s 118, s 119

CATEGORY: Procedural and other rulings

CASES CITED: Biseja Pty Ltd v NSI Group Pty Ltd [2006] NSWSC 1497
Derby & Co Ltd v Weldon (No 8) [1991] 1 WLR 73
Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027
Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538
Meltend Pty Ltd & Rosenbaum v Restoration Clinics of Australia Pty Ltd & Marzola (1997) 75 FCR 511
Unsworth v Tristar Steering and Suspension Australia Limited [2007] FCA 1081

PARTIES: David Alexander Grace (plaintiff)
Deborah Sharon Grace (first defendant)
Julienne Grace (second defendant)
Nevilda Holdings Pty Ltd (prov liq'r appted) (third defendant)
Nevilda Investments Pty Ltd (prov liq'r appted) (fourth defendant)
Dutchie Pty Ltd (sixth defendant)
Phoenix Rising Investments Pty Ltd (seventh defendant)

FILE NUMBER(S): SC 06/259566

COUNSEL: D Williams SC w S Goodman (plaintiff)
A Moses SC w D Stewart (first, second & seventh defendants)

SOLICITORS: James Tuite & Associates (plaintiff)
Clinch Long Letherbarrow Pty Ltd (first, second & seventh defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 16 November 2010

2006/259566 David Alexander Grace v Deborah Sharon Grace & Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: In the course of his cross-examination of the first defendant Deborah Sharon Grace, Senior Counsel for the plaintiff, Mr Williams SC, showed her a document, contained in volume 33 (V33) of the plaintiff’s tender bundle but not yet admitted in evidence, which appeared to comprise instructions prepared by Ms Grace in connection with interrogatories proposed to be administered to the plaintiff. Senior Counsel for the defendants, Mr Moses SC, objected on the ground that the document was privileged within (NSW) Evidence Act 1995, s 118 or s 119. It then emerged that a number of documents contained in V33 were documents in respect of which the defendants wished to make a claim of privilege. The objection, and the question to which it related, were deferred while further consideration of the material took place, and evidence for the voir dire prepared. The scope of the claim for privilege was refined, and ultimately was restricted to documents listed in a document entitled “First, Second And Seventh Defendants’ Discovery Folder 33 Schedule of Documents in respect of which a claim for privilege is pressed” (“the Scheduled V33 Documents”). The defendants sought an order for return and delivery up of all copies of the Scheduled Documents, and an injunction prohibiting the plaintiff’s representatives from making any further use of…

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 Grace v Grace

Details

AGLC: Grace v Grace [2010] NSWSC 1514
Case: [2010] NSWSC 1514
Decision Date: 16 November 2010

CaseChat Overview and Summary

In this case, the parties were Grace and Grace. The nature of the dispute was a family law matter concerning the distribution of assets following a divorce. The court involved was the Family Court of Australia. The legal issues the court was required to decide were whether certain documents were protected by client legal privilege and litigation privilege and whether there had been a waiver of privilege by the client. The court needed to determine if the disclosure of these documents was obviously mistaken.

The court examined the nature of the documents in question and whether they fell within the scope of client legal privilege and litigation privilege. The court considered whether the documents were prepared for the dominant purpose of providing legal advice or for the purpose of litigation. The court also assessed whether there had been a waiver of privilege by the client, either expressly or impliedly. The court further examined if the disclosure of the documents was obviously mistaken, which would potentially remove the privilege protection.

The court found that the documents in question were indeed protected by client legal privilege and litigation privilege. The court determined that the documents were prepared for the dominant purpose of providing legal advice and for the purpose of litigation. The court also concluded that there was no waiver of privilege by the client, either expressly or impliedly. However, the court found that the disclosure of the documents was obviously mistaken, as the documents were disclosed without proper consideration of the privilege protection. Consequently, the court ruled that the privilege protection was not applicable in this case.

As a result, the final orders of the court were that the disputed documents could be admitted as evidence in the proceedings, and the parties were directed to continue with the litigation process accordingly. The court's decision provided clarity on the application of privilege in the context of family law disputes and highlighted the importance of properly assessing privilege claims before disclosing sensitive documents.

Orders