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Hastie Group Ltd (in liq) v Moore

Hastie Group Ltd (in liq) v Moore

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Case Copied 7 November 2016 57 min read

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305
Hearing dates: 26 October 2016
Decision date: 07 November 2016
Before: Beazley P at [1];
Macfarlan JA at [1];
Leeming JA at [70]
Decision:
In proceedings CA 2016/292976:

(1)   Leave to appeal granted;

(2)   Appeal allowed;

(3)   The orders of McDougall J made 14 September 2016 be set aside insofar as they require the production of the Westworth Kemp report;

(4)   Note that the Court does not make any order as to the costs of the appeal proceedings, including the summons for leave to appeal.

In proceedings CA 2016/297987:

(1)   Leave to appeal granted;

(2)   Appeal allowed in part;

(3)   Order (5) made by Stevenson J on 26 September 2016 be set aside;
(4)   Note that the Court does not make any order as to the costs of the appeal proceedings, including the summons for leave to appeal.
Catchwords:
PRACTICE AND PROCEDURE – privilege – client legal privilege – expert report prepared in process of attempting to obtain litigation funding – expert report provided to litigation funder – client legal privilege claimed pursuant to the Evidence Act 1995 (NSW), s 119 – whether report prepared for the dominant purpose of obtaining legal advice

PRACTICE AND PROCEDURE – privilege – waiver of privilege – implied waiver – what is required for implied waiver – where document referred to in affidavit – whether contents of document put in issue
PRACTICE AND PROCEDURE – privilege – waiver of privilege – disclosure to third parties – document provided to litigation funder – whether document retained confidential character
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58
Evidence Act 1995 (NSW), ss 117, 119, 122
Uniform Civil Procedure Rules 2005 (NSW), r 12.11
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Archer Capital 4A Pty Ltd v Sage Group Pty Ltd (No 2) (2013) 306 ALR 384; [2013] FCA 1098
AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234
Bailey v Director General Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Commissioner of Taxation v Rio Tinto Ltd, (2006) 151 FCR 341; [2006] FCAFC 86
Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
CSR Ltd V Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83
DSE (Holdings) v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Gibson v Drumm [2016] NSWCA 206
Grant v Downs (1976) 135 CLR 674; [1976] HCA 63
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Hastie Group Ltd (in liq) v Moore [2016] NSWSC 1315
Hastie Group Ltd (in liq) v Moore t/as Deloitte Touche Tohmatsu [2016] NSWSC 1355
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Mann v Carnell (1999) 201 CLR 1; [1999]…

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.

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Details

Case: [2016] NSWCA 305
Decision Date: 07 November 2016

CaseChat Overview and Summary

The New South Wales Court of Appeal considered a dispute concerning client legal privilege in proceedings involving Hastie Group Ltd (in liq) and Mr Moore. The core of the dispute revolved around an expert report prepared by Westworth Kemp, which Hastie Group sought to protect from production on the grounds of client legal privilege, specifically under section 119 of the *Evidence Act 1995* (NSW). The report had been provided to a litigation funder during the process of seeking litigation funding.

The Court was required to determine whether the Westworth Kemp report was prepared for the dominant purpose of obtaining legal advice, a prerequisite for establishing client legal privilege. Additionally, the Court had to consider whether any privilege that might have existed had been waived, either expressly or by implication, particularly in light of the report's disclosure to a third-party litigation funder and its potential reference in an affidavit, which could have put its contents in issue. The question of whether the disclosure to the litigation funder had maintained the confidential character of the document was also central to the waiver analysis.

The Court of Appeal found that the Westworth Kemp report was indeed prepared for the dominant purpose of obtaining legal advice, thereby upholding the claim for client legal privilege. The Court reasoned that the provision of the report to the litigation funder did not, in these circumstances, amount to a waiver of privilege. The Court applied the principles governing implied waiver, concluding that the mere disclosure to a litigation funder, in the context of seeking funding for legal proceedings, did not necessarily put the contents of the report in issue in a way that would extinguish privilege. The confidential character of the document was considered to have been retained.

Consequently, the Court of Appeal allowed the appeals. The orders of the lower courts requiring the production of the Westworth Kemp report were set aside. No orders were made as to the costs of the appeal proceedings.

Orders

Orders of the court

In proceedings CA 2016/292976:

(1) Leave to appeal granted;

(2) Appeal allowed;

(3) The orders of McDougall J made 14 September 2016 be set aside insofar as they require the production of the Westworth Kemp report;

(4) Note that the Court does not make any order as to the costs of the appeal proceedings, including the summons for leave to appeal.

In proceedings CA 2016/297987:

(1) Leave to appeal granted;

(2) Appeal allowed in part;

(3) Order (5) made by Stevenson J on 26 September 2016 be set aside;

(4) Note that the Court does not make any order as to the costs of the appeal proceedings, including the summons for leave to appeal.

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:	Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305
Hearing dates:	26 October 2016
Decision date:	07 November 2016
Before:	Beazley P at [1]; Macfarlan JA at [1]; Leeming JA at [70]
Decision:	In proceedings CA 2016/292976: (1) Leave to appeal granted; (2) Appeal allowed; (3) The orders of McDougall J made 14 September 2016 be set aside insofar as they require the production of the Westworth Kemp report; (4) Note that the Court does not make any order as to the costs of the appeal proceedings, including the summons for leave to appeal. In proceedings CA 2016/297987: (1) Leave to appeal granted; (2) Appeal allowed in part; (3) Order (5) made by Stevenson J on 26 September 2016 be set aside; (4) Note that the Court does not make any order as to the costs of the appeal proceedings, including the summons for leave to appeal.
Catchwords:	PRACTICE AND PROCEDURE – privilege – client legal privilege – expert report prepared in process of attempting to obtain litigation funding – expert report provided to litigation funder – client legal privilege claimed pursuant to the Evidence Act 1995 (NSW), s 119 – whether report prepared for the dominant purpose of obtaining legal advice PRACTICE AND PROCEDURE – privilege – waiver of privilege – implied waiver – what is required for implied waiver – where document referred to in affidavit – whether contents of document put in issue PRACTICE AND PROCEDURE – privilege – waiver of privilege – disclosure to third parties – document provided to litigation funder – whether document retained confidential character
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-58 Evidence Act 1995 (NSW), ss 117, 119, 122 Uniform Civil Procedure Rules 2005 (NSW), r 12.11
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Archer Capital 4A Pty Ltd v Sage Group Pty Ltd (No 2) (2013) 306 ALR 384; [2013] FCA 1098 AWB Ltd v Cole (No 5) (2006) 155 FCR 30; [2006] FCA 1234 Bailey v Director General Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100 Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 Commissioner of Taxation v Rio Tinto Ltd, (2006) 151 FCR 341; [2006] FCAFC 86 Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164 CSR Ltd V Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83 DSE (Holdings) v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 Gibson v Drumm [2016] NSWCA 206 Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Hastie Group Ltd (in liq) v Moore [2016] NSWSC 1315 Hastie Group Ltd (in liq) v Moore t/as Deloitte Touche Tohmatsu [2016] NSWSC 1355 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Mann v Carnell (1999) 201 CLR 1; [1999]…