Hastie Group Ltd (in liq) v Moore

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.