Jake McKinley Pty Ltd v Geddes - [2025] NSWSC 426

Supreme Court

New South Wales

Medium Neutral Citation: Jake McKinley Pty Ltd v Geddes [2025] NSWSC 426
Hearing dates: 1 April 2025
Date of orders: 1 April 2025
Decision date: 01 April 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
See [28]

Catchwords:
CIVIL PROCEDURE — Subpoenas — To produce documents or things — Where legal professional privilege claimed — Whether privilege waived over correspondence with expert witness

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) Sch 7
Evidence Act 1995 (NSW) s 122

Cases Cited:
Australian Securities & Investments Commission (ASIC) v Southcorp Ltd [2003] FCA 804
New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Chen and Others v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2013] NSWSC 211

Category: Procedural rulings
Parties: Jake McKinley Pty Ltd (formerly Foulsham & Geddes Pty Ltd) (Plaintiff/Resondent)
Dougal Andrew Gordon Geddes (First Defendant/First Applicant)
Dolovede Pty Ltd as trustee for Dougal Geddes Service Trust (Second Defendant/Second Applicant)
Representation: Counsel:
M Pruscino (Plaintiff/Respondent)
A Britt (Defendants/Applicants)
Solicitors:
Jake McKinley (Plaintiff/Respondent)
A W Pitman & Co Solicitors (Defendants/Applicants)

File Number(s): 2023/152783
Publication restriction: Nil

EX TEMPORE JUDGMENT

The plaintiff is the law firm formerly known as Foulsham & Geddes. It has brought proceedings against a former employee who is the first defendant, and the trustee of the trust associated with him which is the second defendant. It seeks damages and other relief arising out of alleged breaches of duty by the first defendant.
The plaintiff has filed and served a report of Mr Kanan, a forensic analyst, in support of its claim for damages. Mr Kanan's report was dated 11 June 2024, and states that it was prepared in accordance with the Expert Witness Code of Conduct in Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
Mr Kanan is the managing director of FTI Consulting Pty Ltd. On 28 October 2024, the defendant served a subpoena on FTI Consulting in which, among other things, it sought documents in the following categories:

“2. All correspondence between Michael Kanan and Jake [McKinley] Pty Ltd (formerly Foulsham & Geddes Pty Ltd) ACN 167 291 394 over the period 23 November 2023 to 30 June 2024 in relation to the preparation and finalisation of the expert report of Michael Kanan dated 11 June 2024.
3. All versions of the EXCEL Spreadsheet in its native electronic form exchanged between Michael Kanan and Jake [McKinley] Pty Ltd (formerly Foulsham & Geddes Pty Ltd) ACN 167 291 394.”

FTI Consulting has produced documents in response to the subpoena.
The plaintiff has claimed legal professional privilege in relation to the documents produced by FTI in response to categories 2 and 3. The defendants say that the plaintiff has not made out that the documents produced by FTI Consulting are privileged, and that even if they are, that privilege has…

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: [2025] NSWSC 426
Decision Date: 01 April 2025

CaseChat Overview and Summary

In the case of Jake McKinley Pty Ltd v Geddes, the plaintiff sought to enforce a subpoena on the defendant, requiring the production of documents and things. The defendant claimed legal professional privilege over certain correspondence with an expert witness, arguing that this privilege had not been waived. The Federal Court of Australia was tasked with determining whether the privilege had indeed been waived and, if so, to what extent.

The central legal issue before the court was whether the defendant had waived the legal professional privilege that protected the correspondence between the defendant and the expert witness. This involved a detailed analysis of the communications in question and whether there were any indications that the privilege had been waived, either expressly or impliedly. The court had to consider both the content of the communications and the context in which they were made, as well as any relevant authorities on the matter of privilege waiver.

The court found that the legal professional privilege had not been waived. It held that the communications between the defendant and the expert witness were protected by privilege, and there was no evidence to suggest that the defendant had expressly or impliedly waived this privilege. The court emphasised the importance of maintaining the confidentiality of such communications, particularly in the context of expert witness consultations, and determined that the privilege applied to the documents in question. Consequently, the defendant was not required to produce the correspondence as part of the subpoena enforcement proceedings.

As a result of the court's determination, the subpoena was not enforced in relation to the privileged communications. The defendant was not required to produce the documents in question, thereby upholding the integrity of the legal professional privilege in this instance.

Orders