Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Hallett v Endeavour Industries Ltd [2016] NSWSC 886 Hearing dates: 24 June 2016 Date of orders: 28 June 2016 Decision date: 28 June 2016 Jurisdiction: Common Law Before: Rothman J Decision: 1. The Court determines that the following documents enumerated in MW2 to the Affidavit of Melanie Wilde of 15 June 2016 are not and cannot be the subject of legal professional privilege by the defendant against the first plaintiff and the Unit Trust: 2, 3, 4, 5, 6, 7, 9, 12, 13, 16, 25, 26, 27, 42, 54, 58 and 61;
2. The above documents be produced to the Court;
3. Other documents in the aforesaid MW2 be returned to the defendant.Catchwords: PRACTICE AND PROCEDURE – subpoenas – legal professional privilege – onus of proof – allegation of joint client and therefore privilege does not run – joint client in some respects and in other respects a wholly independent relationship – documents inspected and rulings on documents given. Legislation Cited: Evidence Act 1995
Uniform Civil Procedure Rules 2005Cases Cited: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1Category: Procedural and other rulings Parties: Keith Martin Hallett (First Plaintiff)
Elisabeth Sigrid Hallett (Second Plaintiff)
K. M & E. S Hallett Pty Ltd (Third Plaintiff)
Endeavour Industries Ltd (Defendant)Representation: Counsel:
Solicitors:
F Assaf (Plaintiff)
D Hughes (Defendant)
Sparke Helmore Lawyers (Plaintiff)
Wilde Legal (Defendant)
File Number(s): 2015/211749
Judgment
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HIS HONOUR: By an Amended Notice of Motion filed 16 June 2016, the defendant, Endeavour Industries Ltd (“EIL”) seeks an order pursuant to the Uniform Civil Procedure Rules 2005, r 33.4(1) modifying or setting aside in part a subpoena to Chapman Thackeray issued on 1 April 2016 (the subpoena) to the extent that Chapman Thackeray (a firm of solicitors) is not obliged to produce to the Court the documents identified as privileged in Exhibit MW2 to the Affidavit of Melanie Wilde dated 15 June 2016.
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In the alternative, an order is sought that, following production of the documents, no party other than the defendant have access to the privileged documents. The subpoena dated 1 April 2016 is addressed to Chapman Thackeray Law, or its Managing Director, to produce all drafts of the Unitholders’ Agreement and all documents referring to, or evidencing instructions from or on behalf of, EIL to Chapman Thackeray Law regarding the drafting of the Unitholders' Agreement and amendments to same.
Background
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It is necessary to explain some background to the motion and to the proceedings. That which follows is not a finding or conclusion but a summary of the relevant manner in which the plaintiffs plead their case.
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The plaintiffs commenced proceedings by the filing of a Statement of Claim on 20 July 2015. The plaintiffs allege, relevantly to this application, that there was a Joint Venture arrangement between the plaintiffs and the defendant in or…
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- Case
- [2016] NSWSC 886
- Decision Date
CaseChat Overview and Summary
The legal issues presented to the court revolved around the onus of proof regarding the claim of legal professional privilege. The court needed to ascertain whether the documents in question were indeed privileged, and if the privilege applied, whether it extended to all aspects of the client-lawyer relationship or only to specific areas. The pivotal question was whether the client could be considered a joint client in all respects or if the relationship was such that the privilege did not apply in certain contexts. The court also needed to consider the implications of these findings on the admissibility of the documents as evidence.
The court examined the nature of the relationship between the client and the legal practitioner, finding that while in some respects the client and another entity shared a joint client status, in other respects they had entirely independent relationships. This nuanced relationship led the court to conclude that the privilege did not apply to all documents sought by the subpoena. The court held that the onus of proof regarding the privilege rested with the party claiming it, and in this instance, the privilege was not sufficiently established for all the documents in question. Consequently, the court ruled that certain documents could be inspected and that specific rulings were made regarding the admissibility of those documents.
The final orders of the court reflected its determination that while some documents were privileged, others were not. The court allowed the inspection of documents subject to certain conditions and ruled on their admissibility based on the findings of the privilege. The court's decision provided clarity on the scope of legal professional privilege in a complex relationship and the onus of proof required to establish it.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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