Gris (a pseudonym) v Avila - [2019] NSWDC 132

District Court

New South Wales

Medium Neutral Citation: Gris (a pseudonym) v Avila [2019] NSWDC 132
Hearing dates: 21 March 2019
Date of orders: 17 April 2019
Decision date: 17 April 2019
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. The two notices of motion filed by the applicant defendant on 27 February 2019 seeking access to the client files of Leckie Law and the files of the Family Court of Australia are dismissed;

2. The applicant defendant is to pay the respondent plaintiff's costs of each of the dismissed motions on the ordinary basis unless otherwise ordered;

3. After the expiry of 28 days the Registrar is to return all files produced by the Family Court of Australia to that Court and notify that Court of these orders;

4. After the expiry of 28 days the Registrar is to return all files produced by Leckie Law to that firm and notify that firm of these orders;
5. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: CIVIL PROCEDURE – notices of motion – objection to inspection of privileged documents comprising a solicitor’s file – objection to inspection of documents produced by the Family Court of Australia – consideration of client legal privilege pursuant to s 122 of Evidence Act 1995 – contested notices of motions seeking access to documents protected by client legal privilege and by s 121 of the Family Law Act 1975
Legislation Cited: Compensation to Relatives Act 1897 (NSW), s 6B
Court Suppression and Non-publication Orders Act 2010 (NSW), s 7, s 8
Evidence Act 1995 (NSW), s 117, s 118, s 119, s 122, s 123
Family Law Act 1975 [Cth], s 121
Uniform Civil Procedure Rules 2005 (NSW), r 1.8, r 13(3), r 33.4, r 33.9, r 33.13
Cases Cited: A v Z [2007] NSWSC 899
Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39
Botany Bay Instrumentation & Control Pty Limited v Stewart [1984] 3 NSWLR 98
DSE (Holdings) Pty Limited v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Lisa Kaye O’Donoghue v Jet Fighter Flights Pty Ltd (in liq) [2013] NSWDC 781
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Portal Software v Bodsworth [2005] NSWSC 1179
R v Saleam (1989) 16 NSWLR 14; [1999] NSWCCA 86
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR(NSW) 347
Category: Procedural and other rulings
Parties: Honey Gris (Plaintiff/Respondent)
Manuel Adrian Aranibar Avila (Defendant/Applicant)
Representation:
Counsel:
Mr N Broadbent (Plaintiff/Respondent)
Mr S Downing (Defendant/Applicant)
Solicitors:
Carroll & O’Dea (Plaintiff/Respondent)
Avant Law (Defendant/Applicant)

File Number(s): 2018/213684
Publication restriction: Non-publication order

Judgment

Table of Contents

Non-publication order and litigation pseudonyms

[1]

The proceedings

[2]

Applicant defendant’s notices of motion (2)

[3] – [6]

Factual background to the notices of motion

[7] – [19]

First motion

[20]

Second motion

[21]

Applicant defendant’s evidence on the motions

[22]

Expert evidence served in…

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 Gris (a pseudonym) v Avila

Details

AGLC: Gris (a pseudonym) v Avila [2019] NSWDC 132
Case: [2019] NSWDC 132
Decision Date: 17 April 2019

CaseChat Overview and Summary

The case of Gris v Avila involved a dispute between the parties over the inspection of privileged documents. The applicant, referred to as Gris, sought access to documents held by Leckie Law, the solicitor for the respondent, referred to as Avila, and documents produced by the Family Court of Australia. The application was contested on the basis of client legal privilege and the protection afforded by section 121 of the Family Law Act 1975. The primary legal issues for the court to determine were whether the applicant was entitled to inspect the documents under the circumstances and, if so, whether the privilege or protection should be overridden. The court had to consider the provisions of section 122 of the Evidence Act 1995 in relation to client legal privilege and the extent to which the Family Law Act protected the documents from disclosure.

The court examined the nature of the documents and the context in which they were created. It was established that the documents in question were part of the solicitor’s file and were protected by client legal privilege. The court also considered the impact of section 121 of the Family Law Act, which provides for the confidentiality of certain family law proceedings. The court found that the documents were indeed privileged and that the overriding of such privilege should not be lightly considered. Given the sensitive nature of the information and the protections afforded by statute, the court was satisfied that the applicant had not demonstrated a compelling need for the inspection of these documents. The court concluded that the applicant’s motion for inspection was an unreasonable intrusion into the privileged communication between the respondent and their legal representatives and dismissed the application.

The court ordered that the two notices of motion filed by Gris be dismissed and that the applicant pay Avila’s costs of the dismissed motions. Additionally, the court directed that the files produced by the Family Court of Australia be returned to that court, and those produced by Leckie Law be returned to the law firm, after 28 days. The court also granted liberty to apply for further orders if necessary, provided that seven days’ notice was given. These orders reinforced the importance of protecting privileged communications and maintaining the integrity of the legal process.

Orders

Orders of the court

1. The two notices of motion filed by the applicant defendant on 27 February 2019 seeking access to the client files of Leckie Law and the files of the Family Court of Australia are dismissed;

2. The applicant defendant is to pay the respondent plaintiff's costs of each of the dismissed motions on the ordinary basis unless otherwise ordered;

3. After the expiry of 28 days the Registrar is to return all files produced by the Family Court of Australia to that Court and notify that Court of these orders;

4. After the expiry of 28 days the Registrar is to return all files produced by Leckie Law to that firm and notify that firm of these orders;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gris (a pseudonym) v Avila [2019] NSWDC 132
Hearing dates:	21 March 2019
Date of orders:	17 April 2019
Decision date:	17 April 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. The two notices of motion filed by the applicant defendant on 27 February 2019 seeking access to the client files of Leckie Law and the files of the Family Court of Australia are dismissed; 2. The applicant defendant is to pay the respondent plaintiff's costs of each of the dismissed motions on the ordinary basis unless otherwise ordered; 3. After the expiry of 28 days the Registrar is to return all files produced by the Family Court of Australia to that Court and notify that Court of these orders; 4. After the expiry of 28 days the Registrar is to return all files produced by Leckie Law to that firm and notify that firm of these orders; 5. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	CIVIL PROCEDURE – notices of motion – objection to inspection of privileged documents comprising a solicitor’s file – objection to inspection of documents produced by the Family Court of Australia – consideration of client legal privilege pursuant to s 122 of Evidence Act 1995 – contested notices of motions seeking access to documents protected by client legal privilege and by s 121 of the Family Law Act 1975
Legislation Cited:	Compensation to Relatives Act 1897 (NSW), s 6B Court Suppression and Non-publication Orders Act 2010 (NSW), s 7, s 8 Evidence Act 1995 (NSW), s 117, s 118, s 119, s 122, s 123 Family Law Act 1975 [Cth], s 121 Uniform Civil Procedure Rules 2005 (NSW), r 1.8, r 13(3), r 33.4, r 33.9, r 33.13
Cases Cited:	A v Z [2007] NSWSC 899 Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39 Botany Bay Instrumentation & Control Pty Limited v Stewart [1984] 3 NSWLR 98 DSE (Holdings) Pty Limited v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 Lisa Kaye O’Donoghue v Jet Fighter Flights Pty Ltd (in liq) [2013] NSWDC 781 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Portal Software v Bodsworth [2005] NSWSC 1179 R v Saleam (1989) 16 NSWLR 14; [1999] NSWCCA 86 The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR(NSW) 347
Category:	Procedural and other rulings
Parties:	Honey Gris (Plaintiff/Respondent) Manuel Adrian Aranibar Avila (Defendant/Applicant)
Representation:	Counsel: Mr N Broadbent (Plaintiff/Respondent) Mr S Downing (Defendant/Applicant) Solicitors: Carroll & O’Dea (Plaintiff/Respondent) Avant Law (Defendant/Applicant)
File Number(s):	2018/213684
Publication restriction:	Non-publication order

Non-publication order and litigation pseudonyms	[1]
The proceedings	[2]
Applicant defendant’s notices of motion (2)	[3] – [6]
Factual background to the notices of motion	[7] – [19]
First motion	[20]
Second motion	[21]
Applicant defendant’s evidence on the motions	[22]
Expert evidence served in…